So Big Tech has too much power. What can we do? Is there no-one with more power than the tech businesses? Here are some candidates: consumers, employees, investors, advertisers and governments. Consumers have influence in theory, but in the surveillance economy we all know they are the “product being sold”. Employees have protested at times against things like sexual harassment, but Google ranks as the most popular employer among business and engineering students around the world, so don’t expect the employees to make a huge difference any time soon.

Investors could in theory, put a lot of pressure on companies to act sustainably and responsibly; there are ethical investment funds, but they tend to look at things like tobacco, fossil fuels, animal testing and guns. A bit of a stretch to things like freedom and truth. No luck there. Also, investors like stocks that beat the market, which tech has done for decades. (Thanks to “disruptive innovation,” which is a different way to say making money from somebody else’s investment.)

Advertisers may be the best bet; they provide most of the revenue after all. Sometimes advertisers get enough and pull the ads, like when $140 Million US worth of toothpaste ads was cut due to unwanted terrorist video visibility. But the general trend is that more advertising bucks go to Big Tech, not fewer.

Lastly, Governments, do they have the power to reign Silicon Valley in? Depends. China doesn’t even need to make threats to keep the internet in line on things like displaying Taiwan as part of China or punishing a sports club whose manager voices support for the protestors in Hong Kong. Not that Netopia approves; two wrongs don’t make a right. The toolset available to Western governments is more limited: competition policy, privacy regulation and one or two more things. We have seen some really big fines over the years. GDPR fines can be as much as 2% of global turn-over. Except even if enforced, such as fine only scratches the paint on the company’s market value: Google-parent Alphabet’s share price is around 25 times the earnings. That means 2% of earnings equals 0.08% of market value. Netopia has an infographic that shows the proportions.

Is there no hope? Is resistance futile? No! There is always hope! Resistance is never futile! The things mentioned may be weak but not pointless. In combination, they may have an effect. Policymakers are beginning to step up to the challenge. A new policy is on the way. There will be a better tomorrow. (Unless, of course, Google’s quantum computer becomes self-aware and decides to kill all humans.)

File-sharing is not what it used to be. At least not if you think it used to be this altruistic movement with no profit motives. Today, running torrent trackers is a business, not some ideologic crusade to bring down evil copyright empires. Don’t take it from me, take it from Torrent Freak:

While people have always made money from bootleg videos and music, the very early days of file-sharing mostly embodied the “sharing is caring” ethos. Have a tune, give one away. Have a game, pass it around. However, over the past 15 years – the last 10 in particular – there has been a noticeable shift. Does anyone share or provide platforms altruistically anymore, or is money behind pretty much everything?

Yeah. Except 10-15 years ago it was already big business. If file-sharing was ever altruistic, that stopped long ago. Don’t get me wrong, I’m sure a lot of file-sharers really believed they were doing something good (though for most perhaps it was a convenient excuse for not paying for stuff). But for all its peer-distributed hive-mind get-up, there was always a central element and that was always commercial. Maybe because it had to be, it costs a lot of money to run servers. Maybe because they could make a buck. Maybe a bit of both.

Case in point: the world-famous torrent-tracker The Pirate Bay was sold in 2009 for 60 Million Swedish Kronor (or 7,8 Million US-dollars currency conversion as calculated by none other than Torrent Freak itself back when). Yeah, the deal never happened in the end, the buyer turned out to be bankrupt. But if Millions of dollars is not commercial, I don’t know what is. (Wait, 2009? That’s ten years ago. Where’s the party?)

Except The Pirate Bay was commercial long before 2009. When the Swedish police raided its server hall in 2006, the prosecutor collected evidence of three Million US$ ad revenue. A number which, for the record, was challenged by the accused. Again, I’m referring to Torrent Freak as a source. (Thanks for keeping such a good archive, TF!)

Was TPB the exception? All other pirate services altruistic? Hmm, don’t think so: Kim Dotcom had “millions of dollars” seized by the US authorities (along with a list of expensive watches, jetskis and 108-inch TVs worthy of a Bond villain). At least some of that must have come from his MegaUpload-business. While not technically a torrent-tracker, bitlockers like that provide a form of file-sharing.

How about the trailblazer – Napster back in the 1990s? It had an offer of 94 Million US$ in 2002. That was after a US court shut it down, folks. True, that deal also fell through, but if you know somebody who pays 94 Million dollars for a random internet service… give them my number.

File-sharing was always commercial. It was also altruistic on some level. Maybe. Now, this is the point where pirates say “what about Google, it also provides links to illegally shared files”. Correct. It does.

If you follow the digital policy debate in Europe, you may be curious on how Big Tech will respond to the concept of the Digital Services Act, floated by the incoming von der Leyen-Commission. The Commission appears to take a broad approach on the problems with the digital society today, without resorting to a one-size-fits-all-solution. There are many aspects worth looking at, but for the moment let’s see how Big Tech has responded.

Case in point, a Linkedin-post by Ebay’s top EU-lobbyist Samuel Larinkari. I’ve met Larinkari, we were on the same panel during the Estonian presidency a couple of years ago and the topics were similar – platform liability and copyright in that case. On that panel, Larinkari argued that rather than things like the copyright-directive mincemeat approach, the Commission might as well open the E-commerce-directive. I’m not sure, but I took that as a bold challenge – sort of when, growing up with the icy winters in Sweden, my friends and I would say “you don’t dare put your tongue to that lamp post”*. I remember thinking that it was a smart move by Larinkari. (Also not sure what my argument was on that panel, but I did bring candy for the audience so at least I got the cheap tricks right.)

The E-commerce directive basically says that internet companies should not be responsible for what the users to do on their services. This is where the post office analogy comes from: “telecoms are like the post office, we don’t ask the post to read the letters”. Those who say this is important to protect privacy and confidentiality of information may have a point (though there are some objections too). These days, however, that exemption from responsibility is the basis of things like the world’s biggest taxi company, the world’s biggest hotel business, the world’s biggest video service etc. All of them build on the same idea of making money off somebody else’s content or offer, sometimes providing value back and most of the time with a take-it-or-leave-it-crybaby-attitude. (Yes, looking at you, YouTube, Uber and Hotels.com, but the list can be made much longer.) Now, this is why there are different rules for “active” and “passive” services. A service that actively interacts with the content, making recommendations, playlist, rankings, what have you, is an active service (duh!). A passive service is what is sometimes called dumb pipe. It doesn’t really do anything with the data, only distributes it. The criticism here is that almost no service is passive anymore, but that is perhaps not the directive’s fault?

On the E-commerce Directive, mr Larinkari says:

The liability regime of the e-Commerce Directive is often criticized for being outdated (dating back to 2001), having been drafted for a set of very different types of hosting service providers. As a result, its fundamental principles are increasingly being disregarded or derogated from in policy and case law, leading to increased fragmentation and legal uncertainty.

Old? Yes. Outdated? Maybe, but the principle of exemption from liability is hailed by tech companies as the most important principle of the “free and open” internet. Different types of hosting services? True, probably no-one thought this would be used for something like the “gig economy”. But does that mean the principles are wrong? Does it not make sense that somebody that actively changes the content thereby assumes some degree of responsibility? Hard to argue against, and words like outdated does not help. My guess is that bigger tech wants bigger exemptions.

So what does mr Ebay suggest the Commission does? Here’s the list, with my comments:

Make sure exemption from liability stays in place so there is legal certainty for platforms

Great, but also keep in mind the legal certainty for everybody else. Like users, content-owners, third-parties, whoever. There is no greater threat online to their legal certainty than these liability exemptions.

It makes sense that platforms do not need to manually monitor user activity for infringements

Not convinced, if Youtube manages to keep pornographic content off their service, why can’t it use the same method for everything else?

Targeted solutions should not be too broad

This is the opposite of the dare mr Larinkari made at our panel back when. I understand him, who wants them to be too broad? But also, don’t make them too narrow, because can we really make a special law for every problem online? Perhaps some general principles may work after all. Let’s say make the targeted solutions “balanced”, okay? That is the most popular word in Brussels anyways.

Good Samaritan principle

Oh, watch out with this one. Sounds great, but this Samaritan is completely different from the guy in the Bible. Normally, good Samaritan-laws protect you from lawsuits if you for example give first aid after a violent robbery and the victim doesn’t make it. In this case, platforms are not trying to help the victims but rather provide the tools for the crime. I have written more on this topic here.

I think I like the shopping list of problems the Commission wants to cover with this legislation. In addition to the points made by Samuel Larinkari and my comments above, here are some ideas that may be useful on the way:

Transparency – make sure the rules platforms write for themselves are transparent also for the outside world. (This include how the algorithms work!)

Accountability – rather than arguing that platforms should have as little responsibility as possible for what users do, how about facing up to the reality and start working toward fixing the problems that they have created? Yeah, internet platforms do a lot of great things, no argument there. They also hold the keys to things like… you know… the survival of liberal democracy. Be part of the answer.

Third-party oversight – being part of the answer is really hard, but there is help out there! Don’t say things like “the algorithm is so complex”, instead say “could you help us with this?”. Don’t say “we’re hiring 10 000 new moderators”, say “let’s we have independent third-party oversight”. That’s how classic media sorted it out. It’s easy if you ask for help, impossible of you don’t. (For the record, mr Larinkari has said none of these things. Others have.)

That’s it. 1, 2, 3. Now you can break for the weekend.

*) In case you haven’t experienced putting your tongue or lips to sub-zero exposed metal, the point is that you get stuck immediately and it’s an incredibly painful affair to pull yourself loose. (Hint: use hot water rather than muscle power!)

After fake news and the erosion of classic media, time was ripe for policy action. Lawmakers looked at the causes and found that the ad money had gone to Google and that truth had suffered from the all-information-is-equal-ideology that the same company champions. Sure, the media industry had made its own mistakes on the way, but the playing field was far from level: same audience, same content, different rules.

So what to do about it? Of the many candidates (share data, demand licenses, break up the monopoly, enforce liability) policy-makers picked one: news snippets. By showing parts of a story in search results – the idea goes – Google can sell ads against that content and some users will not go to the news organisation’s site (which created and paid for that content in the first place). News media becomes a double loser: paying for the content Google monetizes without getting a slice of the pie. Yes, you can make the objection that maybe news orgs get more traffic with snippets and perhaps would have had to buy ads to get traffic otherwise, but that doesn’t seem consistent with the way the media market has evolved and anyway this was not what the EU policy-makers decided. The pattern is familiar, Big Tech using its special legal exceptions to profit from other people’s content. So EU policy-makers decided that news snippets should be protected and those who publish them (again, Google) should pay the news organisations that made the content. Enter the “publisher’s right” or “link tax”.

Spain and Germany had already tried something like this – introducing a law that demands Google to pay news media when it uses their content. The response? Google stopped showing those search results. This is of course a move that only a monopolist can make and those who cheer for Google should maybe consider what it means that a single company has that much power. Normal competition appears to be set aside. (See also Metcalfe’s law, for example here.) Without Google’s display, traffic decreased and the news media had to waive their new right. Why would this pattern not repeat itself on the European level if applied by the EU? The question was asked to then Commissioner for Digital Society Günther Öttinger at a seminar three years ago:

– No one can survive globally without being active in the European market, Öttinger said. Spain was not big enough. Even Germany is not big enough. All services are welcome but must follow European rules.

As France implements the new copyright directive, let’s see if Commissioner Öttinger was right. Will Google accept that it too has a responsibility for the health of news or will it use its dominant position to ignore the attempts of policy-makers? A blogpost by Google’s Richard Gingras, Vice President of News, points to the latter. Let’s take a look at what he has to say:

When the French law comes into force, we will not show preview content in France for a European news publication unless the publisher has taken steps to tell us that’s what they want. This applies to search results across Google services.

So just like in Spain and Germany before, here’s the monopolist’s ultimatum. Gingras wants to dress it up like a choice, but another option would of course be for Google to make deals with news media and share revenue. In fact, this would be in line with how everything else in the world works: I make something, you want it, let’s make a deal.

Publishers have always been able to decide whether their content is available to be found in Google Search or Google News. And we recently introduced more granular webmaster settings that publishers can use to indicate how much preview information they want to include in search results.

Really? Because I’m told Google Search is used to find pirate content, so Google’s respect for other people’s content at least doesn’t outweigh any of its other priorities. When it comes to the news organisations own websites, that sounds great, but the concept of negotiation is still lacking. “Take it or leave it, because we’re so nice we give you that choice.”

The Internet has created more choice and diversity in news than ever before. With so many options, it can be hard for consumers to find the news they are interested in. And for all types of publishers – whether they are big or small, a traditional news site, a new digital player, a local new…

Sounds great. In this choice and diversity, we also get the blessings of fake news and propaganda, presented on equal terms as real news. What’s not to like?

In the world of print, publishers pay newsstands to display their newspapers and magazines so readers can discover them. Google provides these benefits at no cost to publishers.

Haha, yes but those newsstands also sell the papers! It is a revenue source for the news media, helping to pay for things like… journalism. Seriously mr Gingras, you know this of course. So let’s think of this part as a funny joke. Haha.

We constantly look for new ways to prioritize high quality content in our products and are also investing $300 million over three years in the Google News Initiative, which helps publishers develop new revenue streams and explore innovative ways of presenting news. This includes hundreds of projects from developing new fact-checking efforts, to boosting media literacy, to delivering almost 300,000 trainings to journalists in Europe.

Sounds amazing. By the way, when you say “prioritize high quality content”, are you talking about Russian propaganda, ISIS videos or alt.right-conspiracy theories?

By working together we can continue to make progress.

Yes, you can start by sharing revenue, data and respect the rights of content owners.

It looks like the pattern will repeat itself and perhaps Commissioner Öttinger was still right: each country is not strong enough to push back. The idea of an EU-wide effort perhaps will not work as member states implement the rules separately and not at the same time. Google wins again.

One last point: will Google’s smaller competitors suffer? The thinking is that if a dominant player can ignore the rules, but smaller competitors cannot, competition will be held back. But that is assuming competition works as normal in the online markets, which is not the case (Metcalfe again) and the way to a better digital society should not be a race to the bottom anyway.