They say time flies, but it also true that time is slow.

Netopia first started ten years ago. Since then much has happened. But much is the same.

Netopia launched February 16^th 2010 in Swedish. With a bang! An op-ed in the #1 daily Dagens Nyheter described the mission. If democratic institutions and rule of law are not present online, that void will be filled by others. This basic premise guides Netopia still. The Manifesto remains.

Sweden in that time was like nothing else. It was the Sweden that brought The Pirate Bay, which in itself started as an experiment by the pirate think-tank Piratbyrån (“The Pirate Bureau”). It was the Sweden that elected The Pirate Party to European Parliament with 7,3% of the votes (but not to Swedish parliament the year after). “Polarized” may be a cliché, but it was polarized back then because there were only two positions available in the public conversation: pro or against “new technology”. Having worked in game development for many years, I did not feel at home in that dichotomy. I wanted to be pro-technology but also pro intellectual property rights. It felt wrong that the ruleset that connects creative work to the regular economy (=copyright) should be less important. Quite the opposite, I thought it should be more important since digital output is intangible. So I set out on this search for a third position. A few wrong turns later, it had occurred to me that the issue was much bigger than copyright. It was about power, competition, freedom, democracy and big words like that.

So I started Netopia, to be able to invite others to help figure it out. Turned out many were interested. I published work from historians, scientists, lawyers, creators, business people, policy-makers… and some pirates too. They looked at technology, law, China, human rights, history and many other topics, in different ways connected to the “digital society”. I was able to convince some organisations in the entertainment industry to bankroll this soul-searching. They didn’t always like the things I posted, but generously let me carry on. (Thank you, you know who you are!)

It was also controversial, almost an insult to some. The pirate movement took turns swinging at me. Responding to the comments on the launch op-ed took six(!) blogposts. It was fun and a bit overwhelming but the pushback in social media was quite different from what I met in other places: it turned out a lot of different people had shared my sense of unease with the polarized debate and welcomed the search for a third position. Tertium non datur is not very helpful.

It was frustrating too. Trying to take part in a global debate in a small language. The people I wanted to talk to (and argue with!) mostly wrote in English. I did read them but they could not read Netopia. Also, as a balance to the power of the internet monoliths, the Swedish democratic institutions were not much. The EU on the other hand, that could be something to put one’s trust in. So in 2013, Netopia switched language to English and moved to Brussels.

Since 2010 everything has changed and nothing has changed. There is a bigger understanding now of the problems with the lack of rule of law online. There is an appetite for regulation that did not exist in 2010 (no I’m not saying Netopia made it happen, only that it was part of the change in mindset). But to a large extent, the power battle is the same. If anything, the monoliths have become more monolithic.

Netopia is ten years. Who knew? Here’s to another ten. And to the hope that those ten will be plenty.

Skål!

The Swedish edition of Netopia is still online here:

www.netopia.se

Here is an evergreen topic: does piracy really hurt legal sales?

Last week, film-maker legend Werner Herzog said at a film-festival in Switzerland that pirates have his blessing if they can’t find a legal source for his movies.

Gizmodo conveniently disregarded the second part and added the pirate’s old pet theory that piracy may help legal sales. To support this argument – which is not what Herzog said – Gizmodo cherrypicks two studies: one is the infamous Ecorys-study which was commissioned by the EU Commission (no pun) but buried – most likely not because of some inconvenient truth but for its inferior quality. More on that report here. The other, if you read it, recommends fighting piracy, at least pre-release. Pretty weak support, considering the heap of studies that come to the opposite conclusion.

But maybe that old argument is less interesting, because Werner Herzog is right of course. If he makes a film, it belongs to him and its for him to decide what happens with it. That decision is his and nobody else’s. Unless of course he chose to sell that right to somebody else (maybe in exchange for a production budget), in which case that right belongs to the buyer.

Werner Herzog also said the stupidity in social media is what scares him the most. Netopia concedes.

The go-to-answers to any form of criticism of the tech business have always been “freedom of speech”, “human rights” and “it would turn us into and China”. But as of today, Big Tech must come with a new answer. Amnesty International has called the bluff.

The report Surveillance Giants was published today. It calls Google’s and Facebook’s offers “a system predicated on human rights abuse” and says it is:

an assault on the right to privacy on an unprecedented scale, and then a series of knock-on effects that pose a serious risk to a range of other rights, from freedom of expression and opinion, to freedom of thought and the right to non-discrimination

Read that again. “Unprecedented”. As in “never before”. That means that it trumps the historical atrocities of the KGB, Stasi, North Korea… even the Sesame Social Credit in China.

Yes, Google and Facebook protested (and Amnesty has graciously included the responses in the report) and said they help freedom of speech. Except Amnesty International is a better judge of that.

Next time Chinese dissidents complain about surveillance, the Communist Party can say “at least it’s not as bad as Facebook”.

The biggest illusion around the internet is that lack of regulation brings freedom. It does not. It only cedes the power of regulation to the tech companies, rather than keeping it in the hands of democratic representatives.

The mythology is strong, though. Tech gurus are fond of saying that immunity from responsibility is the heart of how the internet works. Without it, no Wikipedia. No freedom of speech. No innovation. And, surprise surprise, more power to Big Tech.

The mythology is strong, though. Tech gurus are fond of saying that immunity from responsibility is the heart of how the internet works. Without it, no Wikipedia. No freedom of speech. No innovation.

US legislators were the first to stumble into this trap. When they passed Section 230 of the Communications Decency Act some 23 years ago, they meant to empower intermediaries to tackle illegal content on message boards and chat rooms.  They thought – mistakenly – that shielding intermediaries from responsibility for what users do would turn them into so-called “Good Samaritans.”  The reality turned out to be very different.

The EU’s E-commerce Directive is a bit more balanced. It makes a distinction between passive and active service providers.  That’s not enough for Big Tech, which has urged the US government to export Section 230 to Europe through a trade agreement, giving them “certainty” that they’re free from any possible liability.

EU leaders, meanwhile, worry that they may have already gone too far. They are asking tough questions about the need to revisit rules made long before things like smartphones, social media and fake news.

Even if we wanted the internet to be completely “open” and “free”, do blanket immunity laws like Section 230 bring that? The answer is no. Intermediaries instead intervene when they like. Pressed on hate speech, Cloudflare took offline the infamous anything-goes chat forum 8Chan. The big platforms have banned right-wing-extremist Alex Jones and his Infowars-channel.

Easy to agree with those actions, but this is not legal certainty. Quite the opposite: random responses to outside pressure. In each parliamentary hearing, Zuckerberg promises to hire thousands more moderators to fix whatever the issues. But we can only guess what those moderators actually moderate. Facebook bans emojis that can be used for innuendo, but allows political ads with no restrictions on… lying. Is this what “open” and “free” looks like? Is this freedom of speech?

Freedom of speech is the right to express your own opinion. It’s not the right to distribute other people’s works and expressions against their will. It’s not the right to operate a taxi service without following taxi service rules. It is not the right for a machine to distribute any data without restriction.

Innovation does not happen from lack of government. In fact, sensible government intervention often supports innovation. The internet itself is a good example: 50 years ago, the Americans where ticked that the Soviets beat them to space. So they started pouring money into advanced military research. One thing that came out was the internet. No government, no internet.

Yeah, Wikipedia. We love the convenience, but is it really that neutral? Some entries are more like battlegrounds for fake news bots. And how come Wikipedia blacked out in Italy and Poland, protesting copyright reform? That smells more like activism than unbiased knowledge.

And if Big Tech wouldn’t suffer from changes to Section 230, how come they lobby against every such change?

EU policy-makers should see through the illusion of intermediary immunity. When making law for the digital age, they should not fall into the 230 trap. Instead, approach the internet as any other field, where balanced regulation provides the rights of the individuals and promotes fair competition, institutions protect those rights and oversees those markets, and democratic process runs those institutions. Let’s call it a proven concept.

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!)