Familiar patterns play out in the Southern hemisphere. After the copyright fight in South Africa, Australia is next in line – this time about news. The digital struggles of the newspapers are well-known: ad money moved to tech platforms, paper-subscriptions almost gone and only a few in each language can be successful with digital subscriptions. Who cares? Had it been about toothbrushes or diets maybe no problem, but with no independent media… well, it gets ugly. Add to this that not only did Big Tech provide every conspiracy theorist (“Why is there so little focus on X? What are THEY trying to hide?”) with tools to broadcast their message to a potentially unlimited audience, it also brought algorithms to amplify it over less polarizing content.

One does not have to love tabloids in order to understand why policy-makers want to do something about the problem. A popular option is to force the tech platforms to share some of its revenue with those who provide the news content they monetize. The European Union was first through the gate. And earlier this month it was Australia’s turn. Silicon Valley’s response follows the same playbook:

The Monopolist’s ultimatum – “if this goes through we kick you out from our platform”

The Besserwisser – “actually your business is better off with our deal” (as if the news organisations could not make that call for themselves)

The All Content Is Equal – “it would be unfair to other content creators” (yeah also to the trolls)

Except if this is not the answer what is? The benefit of news media is that it has standards, educated editors, ambitions toward accurate and unbiased reporting. Not successful every time, but many others don’t even try or actively spread lies. Surely, that must be worth something.

Silicon Valley’s response is not very constructive. More like a kid holding their breath to get ice-cream for dinner. The answer to bad speech used to be more speech. That didn’t work. Let’s try true speech.

There is some cause for optimism: BuzzFeed’s FinCen Files-scoop is classic “muck raking”-style reporting and has upset some of the world’s most powerful institutions. Impressive progress for a website that started out with quizzes about celebrities’ sunglasses. BuzzFeed runs on a combination of ads and donations. That’s great, but won’t work to cover your local city hall.

No, that’s not a movie with unusually lame superheroes. Bear with me. I wrote recently about the copyright reform in South Africa. It led me to find out more, it was astonishing and oddly connected to my home country Sweden.

The proposed new copyright legislation was sent back to parliament by president Cyril Ramaphosa earlier this summer. That was a wise move, had it passed things would have become very weird.

Irony: part of the reason for the copyright reform was to be part of the international internet treaties. But the World Intellectual Property Organisation (you know, the UN institution) pointed to the lack of protection for so-called Technical Protection Measures: a catch-all phrase for the various kinds of log-ins, watermarks, copy-protections, server verifications and so on that digital content services apply to give the paying audience access, but not the free-riders. That’s right: “new services” – the only common ground in all fights over digital copyright, would not be possible in the proposed legislation.

Milk-Man: another part of the proposal was to limit the assignment for music to 25 years, after that the protection would be up for re-negotiation. Ironic by Alanis Morrissette was one of the top songs in 1995. With the proposed rules, the contract would have expired this year. Except that song is hardly forgotten, rather it plays often on radio stations all over, so the commercial interest remains. What happens if the contract parties cannot agree on new terms? Funny you would ask, in that case it is possible that a minister of the government would decide. Yes, you heard me. Here comes the milk-man: in the 1960s in Sweden, milk farmers did not set the price of their milk, instead, in its infinite wisdom, the government decided the price of a milk cartoon. Sweden moved on from that model. South Africa thought to bring it back.

Small wonder the creative community in South Africa pushed back. The only exception was the TV soap actors who were hoping for better compensation. Oh… and the global internet companies too. I guess they wanted free content.

What was that about Sugar-Man? Funny you would ask. Sixto Rodriguez was an American folk music artist with modest success. His songs were big hits in South Africa in the 1970s, but Rodriguez only found out in the late 1990s that he was famous and started touring. Sugar Man was his biggest hit. This story inspired the documentary Searching for Sugar Man which won an Oscar in 2013. The director Malik Bendjelloul (sadly passed in 2014) is Swedish so the spotlight was shared between the US, South-Africa and Sweden. Does anyone need a better case for the need of globally connected copyright?

Now South Africa has given itself the chance to make a good copyright reform.

South African copyright law faces reform, albeit with some delay as president Ramaphosa has sent two bills back to the National Assembly for reconsideration. There are many sides to this reform, one central issue is the concept of “fair use”. The theory is that there should be exceptions to copyright for things that are too small to negotiate licenses over, for example your favourite song playing to your holiday videos. Sounds good right? And “fair use” has a nice tone to it, who could be anti-fair? This points to some of the core concepts of intellectual property rights.

Big tech and pirates have lobbied to get the fair use-rule into South African copyright law, with push back from the creative community and the publishing sector in particular. Why is this so important to Big Tech? Who cares about holiday videos?

Imagine a video-sharing platform where users can upload any video they like, no charge, no delay. Convenient for users, free content for the platform, lots to choose from for the viewers. But what if users were to upload other people’s content? TV-shows, movies, music? Things that cost money to access elsewhere? Big fight follows. “Don’t break the internet”, says platform. Those who made and funded the content feel they’re being robbed. Platform makes lots of money. Sound familiar?

With “fair use” distribution of other people’s content, becomes the problem of the owner of that content. Not the problem for those who distribute it or provide the means for distribution. With licenses, it’s the other way around: ask first, distribute later. Rather than reply to requests, creators must police platforms to find their own works and humbly ask to have it removed (in many cases only to see it pop back up soon after). Fair use turns the tables on the creators.

But perhaps that’s just what some countries need to “catch up”? What if some copyright laws are too strict in order for local businesses to be competitive? Could be. Except the main obstacle to competing as a digital business may not be copyright but the gatekeepers who can dictate the terms for market access and pick the winners. And for the local creative businesses, fair use may take away from their opportunity to be a business at all.

Intellectual property is not the enemy of economic development, but the driver. Consider this case, which is from Ethiopia, not South Africa, and about trademarks, not copyright, but the point remains:

Coffee growers had difficulties getting a fair share of the market price for their product. Ethiopia’s government made an experiment, registering trademarks for some of the regions where the beans were grown. Despite pushback from café “platform” Starbucks, Ethiopia successfully established the trademarks and then licensed them to the growers. With this stamp of approval, marketing tool and quality mark, the growers more than tripled the revenue from the harvest. Same coffee, three times the value. Poor farmers win, café platform has a small cost increase but can in turn use the trademarks in their marketing. What would fair use have looked like in this context?

In the case of South Africa, it may not be coffee beans but rich culture heritage and creative works that are in focus of the current debate. However, the South African law-makers must figure out which strategy works best to increase the value and how it should be distributed.

Youtube does not like to block users or filter content, except when it helps their business.

Youtube CEO Susanne Wojcicki wrote this on her blog:

/…/it threatens to block users in the EU from viewing content that is already live on the channels of creators everywhere. This includes YouTube’s incredible video library of educational content, such as language classes, physics tutorials and other how-to’s.

This was in the context of the copyright reform. But she might just as well have been writing about Youtube’s own negotiation strategies. Yesterday, Youtube threatened to remove all Danish music after composer society KODA has refused to accept a new contract that would cut almost 70% of compensation. This should come as no surprise, the monopolist’s ultimatum is straight from the Google playbook, successfully applied to news before. Perhaps the double standards should also not come as a surprise. Except we don’t have to buy it, do we?

Fun fact: Remember MTV? Yeah, that’s right: the 80’s music television sensation which made the music video a core part of any artist’s marketing. Loved by fans (I spent hours everyday!). Hard to imagine today’s Youtube had MTV not come before. An overwhelming majority of the most popular videos on Youtube are music videos.

What about MTV? Arguably great visibility and marketing for artists and labels, but MTV paid royalties for the music videos it aired. Yes, they also fought about it. But MTV paid artists. Maybe not such a bad idea for Youtube to consider?

There have been many candidates including pressure from policy-makers and regulators, but thus far no end of congressional hearings or EU fines have done more than dent the stock price. Calls from organisations like Amnesty International and United Nations to Tech to stop supporting genocide and doing mass-surveillance have failed to convince Silicon Valleys’ superstars to clean up their services. Staff protests in the form of “walk-outs” have not changed the direction. The consumer power that is “only one click away” is an illusion. What is left?

This writer can think of two last resorts, one is the advertisers who are the real customers in the world of freenomics. The other would be the investors. Not sure if we should expect Wall Street to put things like democracy, peace, life, health and freedom before the profits, though. But now at last, the ad boycott method has been attempted. Let’s take a look!

Ad-pocalypse Redux

Many big-name advertisers have joined the #StopHateforProfit campaign, receiving attention and applause. In fact, so many that CNN has made a special page with the list of companies. Well-known consumer brands. Will this have an impact on the platforms? A small impact on the stock price has been recorded, but longer term it may have more of a symbolic than financial effect. This Wall Street Journal infographic gives a hint: the top 8 boycotters yearly ad spend (all channels) is only 1% of Facebook’s total annual advertising revenue.

I have written about Metcalfe’s law before, but it might help explain this. The law describes the value of a network, say of fax machines. If two people have fax machines, they can telefax each other. If four people have them, there are not twice but four times as many connections. The value of the network is exponential. 100 Million users are not worth ten times more than 10 Million users, but 100 times more. This is the logic that drives the platforms to dominate their respective niches and makes competition irrelevant. (Why would anyone start a competing auction service? Or search? Or video?)

But Metcalfe’s law not only explains the user side of the market, but also applies to the advertiser side. Sure, big name brands can afford to go to alternative channels like television or billboards or something completely different. But the Millions of small businesses have few or no options. Facebook advertising is how they access the customers. Maybe if they want to reach the millennials rather than the boomers, advertisers can go via Instagram, but that is still Facebook. YouTube is the gatekeeper for video. In practice, there is no place else to go. The platforms control both sides of the market. You can’t argue with Metcalfe.

The #StopHateforProfit is a great initiative and of course it’s better to do something than nothing. But it will not be what turns the tide on tech platforms, who seem to put their efforts into pushing for more exceptions from liability rather than facing up to their responsibility as dominant players.

This is Netopia’s newsletter July 9 2020

As has been widely reported, last week Twitter marked two of President Trump’s tweets with a fact-checking label, effectively saying that the US President did not speak the truth. (Perhaps no news; “alternative facts” was a term that arrived early in the Trump presidency.)

Good for Twitter. By contrast, Facebook predictably refused to act, once again badly misjudging the historical moment. They are now facing growing criticism and anger in the US for their refusal to be accountable for how their users abuse their platform. Indeed, current employees staged a virtual protest, and more than thirty of Facebook’s earliest former employees posted an open letter lambasting the company for its moral decay.

President Trump responded to Twitter’s actions by issuing an executive order targeting the (in)famous Section 230 of the Communications Decency Act of 1996. Why this particular law?

According to Big Tech, the internet wouldn’t exist without CDA 230’s liability protections for content posted by users – no matter how vile. And given the ever-increasing pressure in the US to reform CDA 230, Silicon Valley is desperate to export it to other places so as to complicate efforts to amend it domestically. For instance, they successfully included it in the US-Mexico-Canada-free trade agreement and are eager to see it incorporated into European policy.

The law’s appeal is clear; CDA 230, on the one hand, gives internet intermediaries an exemption from liability for what users do:

(1) Treaty of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

… and on the other hand, gives them freedom from liability when they do take action (“good Samaritan”):

(2)Civil liability

No provider or user of an interactive computer service shall be held liable on account of—

(A)

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)

any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). [1]

Blessed if you do, blessed if you don’t. Untouchable. Keep doing whatever you’re doing and don’t mind anyone else. What’s not to like?

Of course, President Trump’s Executive Order appears to be illegal on its face. Twitter did not abuse President Trump’s freedom of speech by adding the fact-check labels; rather, Twitter was exercising its own freedom of speech in doing so. That right is guaranteed by the US Constitution’s First Amendment, not CDA 230. And that’s great—if there is one thing Netopia would like to see more of it is intermediary action (that is the topic of almost every post on this blog!). Twitter is a big part of the problem in terms of hate speech, propaganda, threats, and more, but a pat on the back is deserved for doing something.

If anything, Trump’s EO is a distraction from real and legitimate debates about how CDA 230’s overbroad liability shield is a root cause of many of the internet’s most intractable problems—it’s the same law Google argued against amending despite child-trafficking website Backpage.com’s reliance on it’s safe harbour. And the growing CDA 230 reformer movement in the US is understandably concerned that Trump’s executive order is a distraction from their cause.

Presidential executive orders are not the answer to fixing the internet. CDA 230 is also not the answer. Until Big Tech voluntarily faces up to “do the right thing,” we must keep looking. Suggestions welcome.

Pressure on Facebook shows no sign of decrease. The first line of defense – “we’re just a tech company” – did not hold. The second line – “we will hire thousands of moderators” – also failed. The latest attempt – “oversight board” – is a step in the right direction but will not be enough. Here’s why:

THE BENEFIT OF THE DOUBT

Facebook accepting some degree of responsibility for the content is welcome. A generous interpretation of the oversight board could be a statement like “we think this is difficult and need some help”. Such an approach deserves some sympathy or at least the benefit of the doubt. Thorny issues of freedom of opinion clashing with hate speech. The climate movement and #metoo have benefitted from Facebook and other platforms, but so have white supremacists and Russian election intervention. To humbly ask for help is a good idea, but only if the request is honest.

THE PROBLEM

This balancing act is nothing new. Facebook is not the first to face it. In fact, every new media form has gone through similar steps. The then new medium of radio is sometimes said to have helped the Nazi party to power in 1930’s Germany. Now regarded as pillars of democracy, newspapers were once called “gutter press” and the tabloid looking for scandals rather than the truth is still an archetype. Video games have often been criticized for violent content. And so on. In that view, Facebook is in good company and if history is any guide, it will be held in better regard in the future. Except that does not happen on its own. One could get the impression that it is the world that adjusts to the new medium and learns to accept it. But the reality is that the new medium needs to make necessary changes to earn trust.

THE NEIGHBOURS

The way those examples have gained trust is by putting in place systems that help the audience and check the content. Broadcast media is regulated through law and permissions, many countries have public service organisations and oversight boards or authorities. Newspapers follow similar patterns. The journalist profession requires years of education, there are organisations for professional development, forums for discussing press ethics, special media covering media – the ethos is that difficult publishing decisions are well-served by being discussed by others. Academics do research on press and media ethics. And so on, a very advanced and professional system and, importantly, a learning system that evolves as the world changes. Same for video games, the industry keeps in close touch with researchers, organisations and authorities. Europe has PEGI – a co-regulation system funded by the industry, run by an independent organization and governed by an advisory board appointed by the member states (experts in teaching, child psychology, media, medicine, sociology and many more). Similar systems exist in other parts of the world. The point is that these media forms did not say “we’re just a tech company”, they faced the criticism and made a system to do better.

THE ANSWER

Self-regulation or co-regulation systems can be the way forward also for the internet platforms. There are some criteria that need to be met:

• Independence – self/co-regulation should be independent of individual companies
• Transparence – the rules and rulings should be available to anyone
• Legal certainty – both parties can appeal a ruling to some form of appeals board
• Rest on actual regulation – the self/co-regulation system falls back on law
• Avoid conflict of interest – the delegates in the system should not be appointed directly by the companies they regulate

Done right, self/co-regulation tries more cases, moves faster and achieves better results than courts and authorities can on their own. (Co-regulation is when the state is represented in some way, self-regulation is independent of the state.)

Now, this is your homework: check the Facebook Oversight Board against the bullets above. If it ticks all boxes, good news for Facebook and digital citizens anywhere. If it ticks only a few boxes, Facebook needs to do more work to cope with fair criticism and avoid government intervention. (Send your answers to mark.zuckerberg@facebook.com)

THE COINCIDENCE

Fun fact: besides the three liberal law professors in the oversight board core, the surprise guest is Danish former prime minister Helle Thorning-Schmidt. When she ran Denmark, her Minister of Economy and Interior was Margrethe Vestager. Yes, the same Vestager, European Commission Vice President and digital watchdog. What a fortunate coincidence for Facebook!

Netopia will follow the oversight board’s work with great anticipation. Will it stop or reduce hate speech and troll factories? Fake news? Election meddling? Genocide propaganda? Privacy breachs? Terrorist content? Abuse of dominant position? Restrictions to free speech? Content theft? Bring back “sexy” emojis? That would be terrific, thanks!

He was known to the public as the lawyer who put The Pirate Bay-operators behind bars. Henrik Pontén was Sweden’s most famous anti-pirate and around those years the target of many pirate pranks. I know, I was there.

Some of the pranks were cute. Like when the Pirate Party youth section gave Henrik Pontén ginger bread cookies for Christmas. In Sweden, the folklore is that ginger bread cookies makes one nicer.

Some of the pranks were funny but obnoxious. Like when somebody changed Henrik’s name in the Swedish tax registry, so that his legal name was Pirate Pontén. Took him some bouts with bureaucracy to change it back.

Some of the pranks were aggressive. Like the boxes in the mail nobody dared opened. The shattered glass window in the office door (they brought in a security guard to patrol the office, unheard of in Sweden). The flowers to his board members with the note “the first part of your funeral bunch”. The list goes on. The pressure took a toll on Henrik’s health, but he did not fold. He kept winning his cases.

In 2009, a couple of months after the first trial against The Pirate Bay and only weeks after the Pirate Party was elected to European parliament by 7,1% of the Swedish voters, Henrik Pontén and I were invited to do an onstage Q&A at a digital festival called Dreamhack. Dreamhack has more than 10,000 participants and is a beautiful example of digital grass roots culture. Back in those days, it was also a popular gathering for software pirates. We came by car and were advised to park it just outside the stage entrance, radiator facing out so we could make a speedy escape if necessary. The door opened and we were met by flashing news cameras, like in a movie scene. On stage, we were meant to give proper answers to questions asked online by the audience. Some questions were pranks, some were serious and interesting. But it was heard to make any sense in the noise. Somebody threw a tomato (and missed). Henrik thought that was hilarious. There are no tomatoes at Dreamhack. They had gone through the trouble of exiting the festival, finding a supermarket and buying tomatoes only so they could throw it at us. That episode captures Henrik Pontén’s personality. He always found humour in the most absurd situations.

Henrik Pontén was a national-team fencer, goat shepherd, horse-rider, motorcyclist, husband and father of three. He passed away this weekend, 54 years old. The gap he leaves is immense.