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Peer-To-Peer News - The Week In Review - June 8th, ’19
"It is abundantly clear that the perceptions of fairness in copyright as well as practice are increasingly diverting from the letter of the law." – Jérôme Hergueux & Dariusz Jemielniak
June 8th, 2019
Napster Turns 20: A Eulogy For The First Free-Music File-Sharing Network
For all the institutions, fanbases, and cash-hungry industries that Napster tore apart, it’s easy to forget that the file-sharing service — the preliminary beta service that first launched 6/1/99, 20 years ago tomorrow — brought people together more often than not.
One of my earliest memories as an active music consumer (that is, when not terrifiedly hugging the side of the highway on my bicycle to hit up Tower Records for whatever my 13-year-old self could afford) was giddily downloading songs in my friend Chris’ room in seventh grade. While my family was still stuck in the days of single-line dial-up, he’d been fortunate enough to have his own internet connection directly to his room — a practical nirvana for adolescent boys looking to get in all sorts of trouble during sleepovers.
During these pubescent all-nighters, our main web-surfing interest was illegally downloading music at the über-slow, hours-per-song trickle that internet access circa 2000 afforded. At this age, I could already tell that our hobbies had reached a point of divergence; Chris was far more into sports and frequently teased me for trying and failing to partake in any athletic feat, game, or conversation surrounding the culture of sports itself. As a self-proclaimed “indoor kid” whose idea of after-school fun was thumbing through the latest issue of TV Guide, I was becoming an all-consuming pop-culture fanatic — and music was (and still is) my main focal point of interest.
Along with boys-will-be-boys activities like shirtless wrestling, farting, and eating large quantities of Goldfish during marathon Goldeneye sessions, nü-metal and hip-hop were areas of overlap between the both of us — which explains the myriad time in vain spent trying to find leaked copies of Dr. Dre’s 2001 and Staind’s Break The Cycle that weren’t just incorrectly tagged live bootlegs (why else did we both already own the Family Values Tour VHS?).
The marginalia of our mutual downloading sessions included real-deal instances of music discovery. I distinctly remember arriving at Chris’ house once to find that he’d downloaded a host of songs from Australian rockers Midnight Oil, whom he was in the midst of trying to convince himself to like as he played “I Don’t Want It No More” on repeat for the thousandth time. At this point, I was a burgeoning music listener straddling the lines of nü-metal’s angsty, beta-male heyday, the dog whistle-like whine of early 2000s emo, and the weirder and woolier sounds of indie and “alternative.” (A short time after the transitional pains of entering high school created distance between Chris and I, a bemused Sam Goody employee attempted to help me choose between CDs of Slipknot’s Iowa and Björk’s Vespertine. I chose Iowa, and I still regret it.)
It’s hard to imagine in 2019, but at the turn of the century reading about music that wasn’t clogging TRL and the FM airwaves meant that you had to rely on the words itself — the literal verbal descriptions, or at least the publications publishing the descriptions — to guide you towards a purchasing choice. This meant a lot of trial-and-error that had the potential to upset your adolescent finances, as well as ways of getting lightly creative in suburbia that ranged from hogging the head-lice headphones at the Hot Topic listening station to picking up copies of CMJ at Hollister (don’t judge) for the free CD included with the issue.
Chris’ computer also had a CD burner, so I arrived one night armed with a copy of Alternative Press that had lavished praise on Primal Scream’s XTRMNTR, a coolly-described album from a band I’d never heard a note of at that point. His patience with my download-hogging tendencies was running thin at this point, but I managed to compile a killer mix CD with “Exterminator” and “Swastika Eyes” on it, alongside Blur’s “Coffee & TV,” Ludacris’ “Southern Hospitality,” and Moby’s Gwen Stefani collaboration “Southside” — all songs I wanted to hear on repeat but couldn’t afford paying full sticker price for the CDs they were on.
I eventually packed the mix CD away with me for a family trip alongside a copy of Method Man and Redman’s Blackout!, and even though the CD itself disappeared in my endless accumulation of physical media similar to the way my friendship with Chris disintegrated upon first contact with getting older, the fond memories I have towards both entities are inextricably tied to the file-sharing capabilities that Napster popularized. Napster connected me to new music, but it also connected me to Chris, however temporarily — exactly the type of connections it was arguably built for.
Shawn Fanning developed the software in 1999 to streamline the ability to locate mp3 files (technology that, at that point, was only starting to take hold in the general conscious) on a centralized server in which college students at his would-be alma mater Northeastern could trade music easily; six months later, Napster counted more than 20 million users and would remain virtually unstoppable — the most recognizable faceless face of music piracy — until a court order forced the service in its original, illegal-download-encouraging form to shut down in July of 2001.
Beyond popularizing the concept of music piracy itself, Napster’s first-run heyday also offered an early taste of the noxious cult of personality that’s since swallowed the tech industry whole. Before the Mark Zuckerbergs, Palmer Luckeys, Travis Kalanicks, and (sigh) Elon Musks of the world, there was Fanning — an unassuming college dropout who nonetheless briefly achieved something resembling rock star status. Years after Napster’s initial shutdown, Fanning bizarrely notched a cameo playing himself in the Mark Wahlberg-starring remake of The Italian Job, and it was similarly surreal to tune into the 2000 MTV Video Music Awards and witness TRL host Carson Daly uncomfortably share the stage with Fanning, the latter walking with questionably earned swagger and donning a Metallica T-shirt to poke the legal bear that was the metal icons’ fight against Napster itself.
Metallica weren’t the only major musical act to take action against Napster — Dr. Dre took similar legal action around the time that Metallica filed their own suit, after their Mission: Impossible 2 soundtrack cut “I Disappear” leaked weeks before being released — but the recourse they sought hurt their already-ailing relationship with fans for years to come, especially in the face of speculative evidence that illegal downloading could occasionally help album sales. As a result, Lars Ulrich & Co.’s battle against Napster effectively cast the band as a money-hungry Goliath stomping out the cash-poor Davids looking to consume music more cost-effectively in the face of skyrocketing CD prices.
That latter description intentionally reads euphemistic, if only to put a fine point on the fact that many had no real idea how to discuss the fact that much of the peer-to-peer digital revolution kicked off by Napster essentially constituted stealing. “This teenager has developed a technology that has revolutionized the way we all get our music,” Daly stated in his VMAs introduction of Fanning, a statement that both signaled just how widespread Napster’s popularity had become at the time and the extent of which the software had normalized the act of piracy itself.
Even more complicated is tracing Napster’s legacy after its initial shutdown. The company spent much of the last decade and a half attempting to become a legal music subscription service amidst courtroom battles and bankruptcy proceedings. Software company Roxio owned the brand and logos at one point, and Best Buy bought Napster wholesale in 2008 to the tune of $121 million, three years before Napster itself would merge with proto-online music hub Rhapsody. To this day, Napster exists as a marginal streaming service in the shadow of the Spotifys and Apple Musics of the world — blockbuster streaming services that themselves would arguably not exist if Napster’s illicit democratization of file-sharing hadn’t kicked off the eventual flattening of revenue in the music industry.
Perhaps that’s giving Napster too much credit, though. For one, it was far from the sole file-sharing service to exist in its time or afterwards; from Kazaa and LimeWire to SoulSeek and myriad private and publicly operated torrent sites, the file-sharing model Napster introduced was swiftly replicated, improved upon, and eventually nigh-impossible to fully stamp out in the eyes of the law. (This eventual obsolescence by way of ingenuity has since become specific to tech at large; think of how the existence of Grindr predated Tinder’s popularity by three whole years, or how battle-royale breakout Playerunknown’s BattleGrounds was quickly eclipsed by the worldwide sensation that is Fortnite.)
It also seems unfair to lay the overall fate of the music industry as it is today at Napster’s feet. Stephen Witt’s fantastic 2015 book How Music Got Free chronicles not only the early life of the mp3 itself but the life and death of ‘The Scene,’ an IRC-powered black market network of virtual pirates that were often smuggling some of the biggest albums in popular music out of pressing plants weeks or months before release, leaking them onto the internet compulsively and competitively. The pirating powers of ‘The Scene’ itself peaked years after Napster’s heyday and smack dab in the middle of the days of the Pirate Bay, Oink, and other torrent networks that made file-sharing both more complicated and harder to trace than ever before.
Maintaining membership to privately run torrent sites like Oink was practically its own full-time job, with a plethora of ratio-maintaining rules and nitpicky minutiae regarding everything from audio fidelity to approaching the sites’ moderators with technical questions beyond “Can I get unbanned, please?” If the experience of logging onto Spotify or Apple Music seems corporate and utterly impersonal in 2019, file-sharing in the mid-to-late 2000s carried an air of exclusivity not unlike joining a secret society–miles away in attitude from the 1:1 digital connectivity that peer-to-peer services like Napster initially provided.
I can’t imagine the 13-year-old versions of Chris and me sitting around a laptop in 2007 excitedly seeding Japanese psych-rock box sets to keep our ratio up on Oink, nor can I imagine us hunkering down for an all-nighter junk food-and-video games binge while rifling through official Spotify playlists and Apple Music shows. As morally murky and undoubtedly illegal as they were, Napster and its ilk represented possibly the last time in the realm of digital music consumption in which a wide range of would-be consumers forged some sort of connection in the sharing of music itself. If only for a few years, we were all pirates of some sort, a common ground that’s become increasingly rare as digital life has only become more fractured as a whole.
As Apple Unveils A Replacement For iTunes, Music Business Experts Examine Its Remarkable Legacy
• Apple will continue to double down on human-powered curation and context
• consumers are just as passionate now as they were 18 years ago about new ways to experience the music they love
When Napster launched in 1999, the digital music platform unleashed a disruptive tsunami of music discovery and file sharing, which famously caught the music business off guard. The high margin business of selling CDs was utterly decimated, prompting one major label executive to call for the internet to be banned.
Thankfully, the internet is still with us, and the digital music revolution has gone from strength to strength. The advent of streaming platforms like Spotify and Apple Music has largely rehabilitated music industry revenues, albeit without the artificially inflated margins which were baked into the CD format.
Arguably the turning point in the fortunes of the digital music business was the launch of the iTunes Music Store in 2003. Apple accomplished something which had eluded the beleaguered major labels up until that point, to make a consumer-friendly licensed digital music store that gave people easy access to the music they loved. Paired with Apple's innovative iPod and iPhone devices, iTunes introduced a seamless customer experience (CX), which converted millions to the world of digital music.
In the intervening years, the iTunes app has been expanded to a become catch-all for many types of media consumption such as podcasts and internet radio, and also as a place to activate and back up iPhones. This week, Apple unveiled a suite of three new, more focused, apps designed to replace iTunes: Apple Music, Apple TV, and Apple Podcasts. Backup, restore, and syncing functions for the iPhone, iPad, and iPod are now integrated into the Finder in macOS Catalina. Apple has confirmed that “users will have access to their entire music library, whether they downloaded the songs, purchased them or ripped them from a CD” in a press release earlier this week.
As the first global giant of digital music transitions to its new incarnation, and loses its iconic brand name, I spoke to some leading music industry experts about the remarkable legacy of iTunes.
Stephen O'Reilly has an influential role in the music industry as Director of ie:music and ie:ventures, who represent artists including Robbie Williams, Passenger and composer Craig Armstrong. His career has been at the very heart of the digital music evolution, as CMO of pioneering music app company Mobile Roadie, global head of sales & marketing at streaming hardware company Gramofon, and CMO at curated internet radio platform Shuffler.fm.
He reflects that iTunes ushered in the digital music era, and subsequently, the mobile music era: "iTunes empowered a meaningful and substantial digital revenue stream that was entirely new. The frictionless ease of buying a track on iTunes also made it easy for consumers to spend via their desktops, and subsequently on the iPod and iPhone. The ease at which people could spend money on digital music instead of going off to Napster or other illegal sites made a huge difference. Probably only Steve Jobs could have persuaded the record industry to embrace the iTunes 99c per track / 9.99 per album business model."
O'Reilly reflects that iTunes transformed the perception of music which had been damaged so much by the file-sharing boom: "iTunes put a value on digital music, instead of the concept that 'digital equals free.' Apple, through the acquisition of Beats Music, is ensuring that Apple Music will become a juggernaut, and are much-welcomed competition in the healthy streaming landscape."
O'Reilly is also highly supportive of Apple's curation-led strategy: "I think Apple will continue to double down on human-powered curation and context . Beats Radio, for all its detractors, is still great, and it proves that tastemakers and curators on radio combined with a killer streaming service are a vital combination." Like many in the music industry, O'Reilly would like to see more paid subscribers to streaming services, to ensure that artists and writers are fairly compensated for their work as CD and iTunes sales fade away.
Vickie Nauman is an in-demand consultant and advisor in the music industry as Founder of CrossBorderWorks. Her stellar career includes roles as President of 7digital Inc (U.S.) and Content Producer for MusicNet, both iTunes competitors, and also as Global Alliance Manager for leading music hardware company Sonos. Nauman is candid on the impact of iTunes on consumers worldwide, "iTunes created a much-needed sense of order in digital music in 2003, not only for consumers, who could buy the singles they wanted at a price they understood for easy playback on their devices, but also for the music industry, with a new model around a la carte downloads."
She reflects that Apple's focus on CX made a massive difference to digital music adoption: "iTunes ushered in a new era in digital music with legally licensed songs and albums that helped many consumers make a transition from buying physical goods into buying digital goods. That bridge was essential as these were early days, and nascent were our phones, networks and operating systems. But Apple's hardware/software/content integration evolved over time, and helped shine a light on the elegance and portability of a collection of music."
Nauman is optimistic about new opportunities from digital music innovation: "I'm looking forward to the next generation of music experiences beyond today's streaming models—music is ripe for segmentation and consumers are just as passionate now as they were 18 years ago about new ways to experience the music they love ."
Apple Finally Kills iTunes
After long anticipation, Apple finally announced that it’s killing iTunes at its developer conference WWDC held in San Jose. Instead, it will be replaced by three new apps: Apple Music, Apple TV, and the new Podcasts app.
This update will ship the new macOS Catalina. You will be able to sync your iPhone directly through the finder app as supposed to the iTunes app used earlier.
The new podcast app will have an index based on the spoken content of the podcast, so you can search for them even if you don’t know the name of the show or the episode.
Last week, Bloomberg reported that Apple is discontinuing the dreaded app. Over the weekend, the company removed all content from iTunes‘ Facebook page and Instagram account.
When Grown-Ups Get Caught in Teens’ AirDrop Crossfire
Anytime young people get together, the pics start flowing.
Veronica Belmont, a product manager at Adobe Spark, was riding the train down to Silicon Valley, doing some work on her phone, when dozens of teenagers plopped down into the seats around her. Within moments, her phone began blowing up. She received an AirDrop request containing an image of several boys’ Bitmoji characters dressed in chicken suits. A group of them snickered as she opened it and looked around. Belmont was confused. “I was like, I don’t know what this means!” she told me.
Anyone who has accidentally left their AirDrop settings open around a group of teens is likely familiar with the deluge of memes, selfies, and notes that arrives so quickly it can often freeze your phone. “Another day another group of french teens trying to AirDrop me memes on the subway,” one woman tweeted. “In a crowd of teens and they keep trying to AirDrop me memes!!!” said another. One young Twitter user joked that she was going to a music festival last weekend “just to AirDrop.”
AirDrop is a file-sharing feature on Apple devices that lets users send photos, videos, contacts, links, and more via a combination of Bluetooth and Wi-Fi. Phones with AirDrop enabled can exchange files from up to 30 feet away, whether or not they’re in each other’s contact lists. Many adults use AirDrop to share files one-on-one, but teens have embraced mass image sharing via AirDrop for years. As more teens get their own iPhones and a rising number of schools crack down on social media, AirDrop culture has gone mainstream—and more adults are getting caught in the crossfire.
I had an interesting skytrain ride home today lol pic.twitter.com/R1kDPXLqBQ
— Amy Luo (@felawful) June 4, 2019
It works like this: Once there’s a critical mass of people around, usually enough so that it’s not immediately clear who an AirDrop came from, teens start dropping photos, memes, selfies, and more to every open phone around. Teenagers will usually change the names of their iPhone to something anonymous or funny to compound the joke. “I used to have the name ‘Momo Challenge’ for my phone,” says Ryan, a 17-year-old in California who, like all teenagers interviewed for this story, is referred to by a pseudonym. “Sometimes I’ll do my country name from Model UN, or something related to the situation I’m in. I used to have it named Donald Trump, then I’d send crazy-liberal memes.”
i have a confession to make: when i see a bunch of teens on public transit i turn on airdrop from everyone so i can get some high-quality content to share with my friends.
— iPad Shuffle (@100sportscars) January 15, 2019
The photos swapped are usually memes or odd pictures teens find on Google Images. “It’s a very specific type of pic that gets AirDropped,” says Henry, a 16-year-old in Pennsylvania. “It’s funny to look down at your phone and see something random.” Because the recipient can only see a smaller preview of the image before accepting the request, anything too intricate doesn’t work. During assemblies or classes, teens will AirDrop reactions to what the teacher or presenter is saying. Belmont said when she was giving a presentation to a bunch of young girls interested in STEM two weeks ago, she received a bizarre meme AirDropped to her computer mid-talk. She worried they were making fun of her.
Naturally, some teens push the boundaries of what’s acceptable to share. It’s not unheard of for kids to blast out nudes (of themselves or others) and porn. Some kids bully one another by distributing compromising or unflattering photos of their classmates. Because AirDrop is a feature that is automatically included on every iPhone, not a social-media app, there’s no moderation or reporting tools, nor can anyone get banned from the service for sharing graphic or sexual images like you could on Instagram, for instance.
Some schools have also had problems with students cheating via AirDrop. Sam Bendinelli, a public-high-school teacher in New Jersey, told me that students sometimes send copies of tests, homework, or answers to quizzes via AirDrop during class or free periods. He and other teachers have begun to crack down on students having their phones out in order to thwart this sort of sharing. “If I see a phone out now, it doesn’t matter what excuse you give me. I’m voiding that test because [cheating] is too easy,” Bendinelli said.
Okay I’m like 2 seats away from the teens on the plane that tried to airdrop me this 😑 pic.twitter.com/ryzEVE1wpj
— arya’s cocked eyebrow (@AJerBearAffair) January 9, 2019
But Bendinelli said most of the images students drop to one another aren’t anything problematic. “It’s primarily a social-networking thing ... I would estimate 80 percent of AirDrops at school are memes and fun things to pass around. It’s like a chat room where some people are anonymous, some have names attached,” he said. Bendinelli also said that students go out of their way not to include teachers. Adults are more likely to have earnest names on their iPhones, instead of jokes and memes, so some kids will take pains to avoid them.
Teens say that sending things out via AirDrop is superior to social media or text messaging because you don’t need to have a person’s username or phone number to share something. It’s far less time-consuming than sending a text or a DM, and you don’t need to create a giant group chat to send things out en masse. You can also stay anonymous. AirDrop is like a roving ephemeral message board that anyone in the area can contribute to.
Memes blasted out via AirDrop can be a beacon for other teens in the area. “It’s a way for mass communication based on location,” says Tiffany Zhong, the founder of Zebra IQ, a Generation Z research firm. “There’s always going to be people you don’t know at events, parties, or at school ... You just want to see who else is around.” Plus, Zhong says, kids know that the people AirDropping things back and forth are other teenagers whom they probably have something in common with. It’s like starting a big group chat with everyone around you that stops as soon as you walk away.
This weekend I was exposed to the new phenomena where teens airdrop random pictures to each other when they’re waiting around for concerts to start. Non-stop airdrops for an hour straight. This is some of my haul from the Charli XCX show: pic.twitter.com/0XnmAmIHOW
— Signe Pierce (@sigggnasty) March 20, 2018
Ryan says the moment she and her friends step into a model-UN competition or wait for a concert to start, they get the AirDrop going. She sends memes and photos of strange animals, and sometimes she’ll include her Instagram handle. Ryan says she has made several new friends this way. “I have about 35 followers on Instagram from AirDrop,” she says. “Considering ... they follow you not even knowing your face or who you are, it’s kind of a lot.” Ryan has five Instagram accounts but says the only handle she lists is her public personal one.
Some kids AirDrop out their Snapchat code, or a selfie with their Instagram handles inviting recipients to message them if they’re interested in a date. Ryan says she’s followed a few people on Snapchat whom she discovered via AirDrop. “It’s just a good way to expand your circle,” she says.
Adults who stumble into an AirDrop ring usually feel like they’ve entered the wrong room. It can feel awkward, and grown-ups often aren’t sure whether they’re being trolled. Zhong, who is 22 years old, says she’s seen some friends AirDrop people repeatedly in an attempt to crash their phone. The humor comes from watching the poor souls’ reactions as their phone stops working, or their confusion at being bombarded with an endless stream of obscure references.
But Alex, an 18-year-old, says he doesn’t think adults should be intimidated. If anything, he says, he and his friends go out of their way to avoid adults since they probably wouldn’t get the humor anyway. Still, Bendinelli says it’s better to just hold off and let the kids have their thing. He turns his AirDrop settings to “off” during school hours and recommends other teachers do the same. If nothing else, it will at least help preserve their phones’ battery.
But for adults who encounter a cluster of AirDrop swaps and do want to participate, selecting the right image to drop back is key. When a Twitter user named Kyle Hammy was being “fully harassed” by teens on public transit, as he posted last October, he repeatedly struck back with a secret weapon: an image of a woman in a Finding Nemo costume, on ice skates.
Netflix Flags Their Own Website for Piracy and Sends Takedown Notice to Google
• A Netflix representative sent a DMCA notice to Google which contains URLs to this streaming platform as well.
• Other errors in the list include critic reviews of Netflix original content that actually promotes this company and its movies.
• There’s a chance that this notice isn’t really coming from Marketly (the company submitting the DMCA) but from other pirates.
The DMCA copyright protection system is one that produces pretty funny moments and confusing situations. The internet is a vast place with its content being contributed by millions daily, so checking and reporting piracy has become a tedious effort that is gradually passed to AI-based tools. However, neither these tools nor the human teams that scan the Web are free of errors, and so we often have stories of self-inflicted harm. In this latest story, a company working on behalf of Netflix named “Marketly” has submitted DMCA notices to Google that concern 250 URLs. Many of these URLs are Netflix.com webpages, and they have no relation to pirating activities whatsoever.
This is not the first time that we see wrongful DMCA notices being submitted to Google, and as long as this bulk system continues to characterize the process of online copyright protection, we will continue to see cases like this one. Not long ago, we presented news about how various copyright owners targeted IMDb URLs with DMCA notices, pulling the rug under their own feet in terms of business and material promotion. Both back then and now, Google spotted the errors and didn’t comply with the removal requests from its search results.
If Google weren’t so careful, we would have hundreds of legitimate URLs being removed from Google search results each day, with the responsibility burdening the copyright holders and their representatives. In the case of Netflix, the company’s internal teams and their external collaborators have sent over five million takedown requests to Google in the past two years. With many of them being erroneous, it is Google who is called to save the day, and so far they have been doing so. Marketly’s DMCA notice isn’t only targeting Netflix’s Triple Frontier webpage, but other legitimate websites that have nothing to do with piracy. In the list, there are posts that review the movie without infringing any copyrights, so they are actually promoting Netflix and its original content.
However, this may not be a mistake but the work of an impostor problem that plagues Marketly. Recently, Google has flagged another DMCA notice that allegedly came from this company, but in reality, was submitted by fraudsters. Pirate sites are not only fighting against copyright holders but also with each other, so submitting DMCA notices that push the offerings of competitors out of Google search results is a classic method to help them increase their traffic. Whatever the case is, this story is highlighting once again that the system of DMCA notices is far from perfect, and can be abused.
Hollywood Studios Say They’re Quitting Netflix, But the Truth Is More Complicated
Streaming service has many programs locked up for years to come
By Lucas Shaw
Hollywood studios say they’re breaking up with Netflix. But the reality isn’t that simple.
Two years ago, Walt Disney Co. parted ways with Netflix Inc. in a public declaration of war. The owner of Star Wars, Marvel and Pixar movies would stop licensing films to the world’s most popular paid online TV network. Instead, Disney planned to keep them for its own streaming services.
Yet the media giant left out a key detail: Under their current deal, every movie released between January 2016 and December 2018 — including epics like “Black Panther” — will be back on Netflix starting around 2026, people familiar with the matter said. Similar issues confront other media titans like NBCUniversal and AT&T Inc., the owner of HBO and Warner Bros. Netflix, which has about 150 million subscribers worldwide, has some of their most-popular shows locked up for years.
“There has been no universal pullback,” said Michael Nathanson, an analyst at MoffettNathanson LLC.
Much has been made in recent weeks about the prospect of Netflix losing popular programs like “Friends” and “The Office” as the owners of those shows — AT&T and Comcast Corp.’s NBC — plot their own online moves and debate whether to keep supplying programs. Netflix has used their shows and movies to upend pay TV and build a streaming business that investors value at more than $150 billion.
Netflix bears have pointed to the risks of the company losing popular content. Though the shares climbed 30% this year through Wednesday, they’d lost more than 9% since hitting a high at the beginning of May.
But like Disney, the companies that own Netflix shows are bound by deals they made a long time ago, said the people, who asked not to be identified discussing nonpublic information.
Of the 10 most popular licensed programs on Netflix, at least eight will be on Netflix for years to come, according to the people. “Grey’s Anatomy,” “The Walking Dead” and a slate of shows from the CW network, including “Riverdale” and “Supernatural,” will stay on Netflix for as long as they remain on the air — and then for three to six years after that, said the people. That means they will be on Netflix until at least 2023, and likely well past that.
And when the big Marvel, Star Wars and Pixar films return to Netflix in a few years, they’ll disappear from Disney’s own online service, according to the people.
Netflix shares gained as much as 1.4% to $354.21 on Thursday.
Disney began licensing movies to Netflix in 2012, four years after the streaming service gained access to 2,500 movies through an arrangement with the Starz cable network. Hollywood studios saw Netflix as a lucrative way to replace shrinking DVD sales. Nickelodeon, Warner Bros., Fox and others all cashed in, handing Netflix some of their most popular programs. Many doubted the long-term viability of Netflix, so the agreements may not have seemed like much of a gamble.
But their shows were a boon for Netflix’s nascent streaming service, which had a small library of old movies when it debuted in 2007. Reruns of popular hits are a perennial draw and the foundation of the lineup at TV networks like TBS and Comedy Central. Netflix operated online for five years before releasing its first original series, building its audience online with shows owned by other companies. Thousands of them.
Netflix’s library of other companies’ shows was so exhaustive that, ahead of the company’s 2013 debut in the U.K., Kasey Moore started a website just to track what shows were coming onto and off of the service every month. Moore called the website What’s on Netflix, and it now gets 4.5 million visitors a month.
“You’ve got thousands of titles in the Netflix library,” Moore said in an interview. “It just made sense for someone to track it all.”
As early as 2011, studios started to worry that Netflix was damaging their businesses. The company surpassed 20 million customers online, and TV viewership among young viewers was in decline. But they couldn’t turn down the money. Disney was expected to bank more than $350 million a year by licensing Netflix the rights to offer its movies after they left theaters, according to analysts’ estimates at the time.
Those concerns have intensified as traditional TV viewing sputters and Netflix continues to grow. And now the world’s largest media companies are now rushing to build their own online services. Disney will unveil Disney+ in November, followed by offerings from AT&T and NBCUniversal. All of them are assessing what shows they will need to lure subscribers.
“We are going to have to take a lot of the great content we own that’s been licensed elsewhere and bring that back into the fold,” AT&T Chief Executive Officer Randall Stephenson said at a May investor conference.
Just one problem: AT&T, which bought Time Warner for $85 billion last year, has a lot of its film and TV content tied up with Netflix and others. Warner Bros., which owns “Friends,” is the biggest TV producer in Hollywood and has built its business licensing shows to third parties.
Under AT&T, it will reserve some for a new streaming service, but will continue to sell programs to Netflix, Amazon.com Inc. and Disney’s Hulu, according to several people familiar with its plans. The home of “Friends” and “The Big Bang Theory” counts too much on such sales to forgo third-party deals.
NBCUniversal is thinking similarly. The company could keep “The Office” for its upcoming streaming service, but has held talks with Netflix, Hulu, Amazon and AT&T about selling the rights. Even if NBCUniversal decides to keep the show for itself, it will still be licensing shows such as “The Good Place” to Netflix.
Just the same, Netflix has been producing more on its own. The company will release 1,000-plus pieces of original programming this year. By the time “The Office” deal ends, Netflix will have at least 3,000 new programs in its library and likely surpass 200 million subscribers worldwide.
“People are missing it,” said Nathanson. “The loss of back titles will not kill Netflix or slow subscriber growth. It just forces them to make more original content.”
'Godzilla: King Of The Monsters' Stomps On The Competition At The Box Office
The film follows the eponymous monster as he faces off against his nemesis, King Ghidorah, and other ancient creatures.
Warner Bros. and Legendary’s “Godzilla: King of the Monsters” may be king of the box office, but it only managed a meek roar. The monster sequel brought in $49 million when it debuted in 4,108 locations, a disappointing start given its $200 million price tag.
“Godzilla: King of the Monsters” is the third installment in Legendary’s MonsterVerse, launched well behind its predecessors, 2014′s “Godzilla” ($93 million) and 2017′s “Kong: Skull Island” ($61 million). Like those films, the latest tentpole is expecting to make majority of its ticket sales overseas, where the eponymous other-worldly creature is a huge hit. “King of the Monsters” bowed with $130 million at the international box office for a global opening weekend of $179 million.
Older males accounted for majority of moviegoers, with 59% over the age of 25 and 67% male. Directed by Michael Dougherty, “Godzilla: King of the Monsters” follows the eponymous monster who faces off against his nemesis, King Ghidorah, and other ancient mythic creatures who are wreaking havoc on Earth. The film stars Kyle Chandler, Millie Bobby Brown and Bradley Whitford.
Another newcomer this weekend, Paramount’s “Rocketman,” took off in third place with $25 million in ticket sales, which, coincidentally, is roughly the same number of sunglasses Taron Egerton wore to play Elton John in the fantasy biopic directed by Dexter Fletcher.
Though the jukebox musical will inescapably be compared to last year’s “Bohemian Rhapsody,” Fox’s Oscar-winning Queen biopic that generated over $900 million globally, “Rocketman” doesn’t need to reach those box office heights to become a success. Paramount shelled out $40 million to produce the R-rated “Rocketman,” which doesn’t shy away from sex, drugs, and rock-n-roll.
In fourth place, Universal and Blumhouse’s “Ma,” a psychological thriller starring Octavia Spencer, picked up $18.2 million when it opened on 2,808 screens. That represents a promising start given the film’s $5 million production budget. “Ma,” Spencer’s first solo leading role, follows a lonely middle-aged woman who befriends some teenagers after they ask her to buy alcohol for them. After Ma lets the high schoolers party in her basement, the festivities start to take a creepy turn. Tate Taylor, best known for “The Help” and “Girl on the Train,” directed “Ma.”
Disney’s “Aladdin” dropped to the No. 2 spot, adding another $42.3 million during its second weekend in theaters. Directed by Guy Ritchie, “Aladdin” has now earned $185 million in North America and $260.9 million overseas.
Rounding out the top five is Lionsgate’s “John Wick: Chapter 3 - Parabellum,” which collected $11.1 million for a domestic haul of $125 million.
‘Godzilla: King of the Monsters’: Inside a Fading Franchise
By Rebecca Rubin
“Godzilla: King of the Monsters” didn’t have a roar quite as deafening as its franchise predecessors. The third entry in Warner Bros. and Legendary’s MonsterVerse opened with a middling $49 million at the domestic box office, a start well below 2014’s “Godzilla” ($93 million) and 2017’s “Kong: Skull Island” ($61 million).
Like its series brethren, Godzilla’s umpteenth return to the big screen had a more promising start overseas, where it debuted with $130 million. Even so, that’s a potentially problematic drop in ticket sales for a movie that cost roughly $200 million to make. It also likely required a marketing spend in excess of $100 million.
“You can’t make an epic monster movie without spending some money,” said Paul Dergarabedian, a senior media analyst at Comscore. “The fact that it earned less than the previous films may be an indicator that some creative risks or a different perspective on the genre could be needed to reinvigorate it and keep it relevant.”
Those diminishing returns are troubling given that these movies are only getting more expensive to make. That should concern Warner Bros. and Legendary as the studios ramp up production on “Godzilla vs. Kong,” a sequel to “Godzilla: King of the Monsters” and “Kong: Skull Island.” The match-up between the otherworldly beasts is slated to be released on March 13, 2020.
“As much as they are connected and part of a MonsterVerse, they all rise and fall on their own,” Dergarabedian said. “If the trailer is killer, the marketing is great, and the timing is right, [“Godzilla vs. Kong”] could be bigger. You just never know. You can have an ebb and flow, but that doesn’t mean you need to give up on a franchise.”
However, the latest installment in the Godzilla series didn’t extend its appeal beyond its male-driven fanbase. Boys and men accounted for 76% of opening weekend moviegoers, with 59% of that group clocking in over the age of 25. Studios want franchises to grow, or at least maintain, their audience over the course of new installments. It’s never a good sign when crowds dramatically shrink after only three iterations.
As popcorn season heats up, Warner Bros. president of domestic distribution, Jeff Goldstein, says it’s a “challenge and goal” for new audiences to find “Godzilla: King of the Monsters.” “The movie is dependent on broadening beyond just the fanbase,” he said.
Mediocre reviews and a lackluster B+ CinemaScore suggest “Godzilla: King of the Monsters” might not be able to survive long during an especially competitive summer season. If “Godzilla” isn’t able to pull in crowds beyond its core demographic, theater owners could bump showtimes to make room for upcoming blockbuster-hopefuls like “X-Men” installment “Dark Phoenix,” “Men in Black: International” with Chris Hemsworth and Tessa Thompson, Samuel L. Jackson’s “Shaft” sequel, and “Toy Story 4,” all of which all hitting theaters this month.
“This marketplace seems to be fueled by your classic summer movies,” Dergarabedian said. “It’s not just about the reviews right now. It’s the perception of these movies being multiplex worthy in the summer.”
Charter Communications Says They’ve Never Profited Off of Piracy — Even Through They’ve Refused to Disconnect High-Paying Repeat Infringers
Charter Communications has filed a motion to dismiss the vicarious liability claims in a recent lawsuit.
The lawsuit, filed by the RIAA on behalf of major record labels, alleges that Charter does nothing to dissuade pirates.
After BMG successfully won a piracy liability lawsuit against Cox, other ISPs are on notice to clean up their pirating subscribers. Charter Communications is the latest ISP accused of doing very little to stop copyright infringement. In fact, the major ISP has been found to be ignoring or reinstating repeat infringers on numerous occasions.
Capitol Records, Warner Bros, and Sony Music are among the Plaintiffs suing Charter over its inaction.
The labels say Charter deliberately turns a blind eye to pirates using its network. The lawsuit says Charter failed to take action against the accounts of repeat offenders, despite being aware of the copyright infringement.
Now, Charter has responded to these allegations by seeking a dismissal. Charter denies that it has played an active role in helping pirates infringe on copyrighted content.
The communications provider argues that the labels’ claims of contributory infringement and vicarious liability are inaccurate. The motion to dismiss applies only to the vicarious liability argument, however.
To prove vicarious liability on behalf of Charter, the RIAA and labels need to show that Charter profited directly from copyright infringing acts. Charter believes that labels will have difficultly proving a direct connection, but let’s continue with the pirate metaphor here.
If Charter is the ocean on which these pirate ships sail, then cutting access to that ocean for known pirates should be effective. In its arguments, Charter says the labels need to prove alleged pirates sought service directly from Charter over other internet service providers.
“For example, Plaintiffs do not allege that infringers specifically chose Charter over other providers so they could infringe Plaintiffs’ copyrights, or that other ISPs were terminating subscribers, leading them to seek out Charter as a safe haven.”
Charter goes on to state that it does not promote any file-sharing service or BitTorrent in any of its marketing materials. The company argues that the flat fee it collects from subscribers for Internet access is not profiting from piracy, though labels disagree.
The labels have also sued Charter subsidiary Bright House for the same offenses in a Florida court. Bright House has filed the same motion to dismiss with the same arguments featured here.
The Days of Getting a Cheaper Cable Bill by Threatening to Leave May Be Over
• Charter, Comcast shares rise despite surge in cord cutters
• Profits grow as providers show low-profit customers the door
When Joshua May learned recently that his TV bill would increase by about $40 a month, he called Charter Communications Inc., expecting his cable company to negotiate a better price.
His previous provider, Time Warner Cable, had extended a cheap promotional rate several times so May wouldn’t cancel. But that was before Charter took over the company. When he called this time, the rep wouldn’t budge on the 29% jump for his bundled TV, internet and phone service. So May cut the cord.
“I expected they’d at least offer free HBO or Showtime,” said May, 34, who lives in Springfield, Ohio, and processes loans for a financial institution. “They did nothing.”
Cable stocks advance as broadband overshadows pay TV
May’s experience reflects a growing trend, as pay-TV companies pull back discounts they’ve used for years to retain video subscribers. With internet service growing faster and more profitable, subscribers like May are becoming expendable.
“I’m sort of indifferent,” Charter Chief Executive Officer Tom Rutledge said at an investor conference last month. Two years ago, he said the second-largest U.S. cable company planned to add video customers. Now, they’re not even “a material driver” of Charter’s business, he said.
Over the past few years, pay-TV stocks have suffered wicked swings as investors reacted to growing subscriber losses. But they’ve recovered as the companies shift their focus to lucrative broadband services. Comcast Corp., the largest U.S. cable provider, is up 22% this year and Charter is up 36% to a 21-month high, outpacing the 12% gain for the S&P 500. That’s despite accelerating pay-TV subscriber losses at both companies last quarter.
‘It’s Been Fun’
“It used to be when customers would call and said, ‘I’m thinking of cutting the cord,’ they’d throw all sort of promotions to keep them from leaving,” said Craig Moffett, an industry analyst at MoffettNathanson LLC. “Now they’re saying, ‘Goodbye, it’s been fun, enjoy the broadband subscription.’”
Cable One Inc., a smaller cable company with about 305,000 residential video customers, even helps cord cutters choose between online alternatives like YouTube TV or Hulu’s live TV service, according to Moffett.
Executives at big cable companies say they have no plans to stop selling TV altogether, because offering more services along with internet access gives customers more reasons to stay. At the conference, Rutledge said Charter wants to create “relationships” with customers and “to the extent that video helps drive that or helps us market that, it’s a valuable asset.”
But cable executives are now focused on what they call “profitable” or “high-quality” video subscribers and less interested in cutting deals. At another investor conference in May, Comcast Chief Financial Officer Mike Cavanagh said he wants a subscriber who “really values video and our bundle despite the increases in prices,” and has “the wallet for a fuller video experience.”
At the same conference, AT&T Inc. CEO Randall Stephenson said his company, which owns the satellite provider DirecTV, is “cleaning up the customer base” by letting go of subscribers who insist on keeping promotional prices when their contracts expire.
Pay-TV providers are making up for the lost revenue by charging everyone more. When subscribers cancel cable TV, they no longer get a discount for bundling TV with internet. When Optimum customers around the New York area cancel TV service, they also typically upgrade to faster -- more expensive -- internet, Altice USA CEO Dexter Goei said last month.
As customers drop pay TV, cable companies will actually see their profit margins widen, Moffett said. That’s because much of their pay-TV revenue goes right to channel owners, like Walt Disney Co. and its ESPN network, in the form of subscriber fees. Fueled by expensive sports rights, those fees are even rising faster than cable TV bills, hurting profits for companies like DirecTV and Comcast. Selling high-speed internet is far more profitable.
Last quarter, Charter lost 26% more residential TV subscribers than a year ago. But it also added 19% more internet subscribers, fueling a 4.2% gain in adjusted earnings.
Charter appears to be courting internet-only subscribers through recent price changes, according to BTIG LLC analyst Rich Greenfield. Last year, the company raised the price of broadband bundled with other services by $5 a month, he said, while increasing internet-only service by $1. Internet without TV still costs a few dollars more, but Charter is closing the gap, he said.
“It appears as if you are purposefully pushing subscribers toward abandoning your video service,” Greenfield said in a note last fall addressing Charter executives.
Since taking over Time Warner Cable in 2016, Rutledge has tried to end its promotional culture. He described Time Warner Cable as a “Turkish bazaar,” where customers called in and bargained with customer service reps. At one point, the company offered 90,000 different prices designed to keep cable-TV subscribers from cutting the cord.
When May called about his bill, Charter did offer him one alternative: a $15-a-month online-TV service called Spectrum TV Essentials. The new streaming service, which debuted in February, has more than 60 channels from programmers like Viacom Inc., Discovery Inc. and AMC Networks Inc.
May canceled after a few months because he missed the sports channels. Now, his Spectrum internet service costs $70 a month, and he gets Sling TV from Dish Network Corp. for another $40.
Since Charter acquired Time Warner Cable, efforts by customers to negotiate lower rates have gotten “much tougher,” according to Phillip Dampier, founder of the blog “Stop The Cap.”
“Do not be surprised if they shrug their shoulders and agree to your request to cancel your account on the spot,” Dampier said on his blog last month. “Spectrum, like many cable companies, has gotten pickier about who they offer promotions to, and are willing to say goodbye to barely profitable customers, especially those only subscribed to cable TV.”
Maine Governor Signs Bill Banning Internet Providers from Selling Consumer Data Without Consent
Maggie Miller, Emily Birnbaum
Maine Gov. Janet Mills (D) signed into law one of the nation's strongest privacy bills on Thursday, banning internet service providers (ISPs) from using, selling or distributing consumer data without their consent.
The Act to Protect the Privacy of Online Consumer Information would prohibit any ISPs in Maine from refusing to serve a customer, penalizing them or offering a discount in order to pressure consumers into allowing the ISP to sell their data. The law will take effect on July 1.
Maine is one of the first states to take that step after California passed its own strict privacy law last year, setting off a flurry of industry lobbying and praise from privacy activists.
Maine's law, passed amid pushback from top ISPs, is geared toward those such as AT&T and Spectrum. California's law, meanwhile, also applies to tech companies including Google, Microsoft, Amazon and Facebook.
Some privacy activists have described the Maine law as even stronger than California's because it mandates that ISPs require explicit consent from customers to sell their personal data, while the California law requires consumers to request that their data not be sold by their own volition.
Mills described the new law as “common sense,” adding that “Maine people value their privacy, online and off.”
“The internet is a powerful tool, and as it becomes increasingly intertwined with our lives, it is appropriate to take steps to protect the personal information and privacy of Maine people,” she said in a statement. “With this common-sense law, Maine people can access the internet with the knowledge and comfort that their personal information cannot be bought or sold by their ISPs without their express approval.”
The bill was approved unanimously last week by the Maine Senate, and was sponsored by Maine state Sen. Shenna Bellows (D). Bellows said in a statement that the law makes Maine "first and best in the nation in protecting consumer privacy online.”
Bellows has said previously that she is planning to introduce an internet privacy bill in the next session that would also target companies including Google and Facebook.
The Maine law is modeled after a former Federal Communications Commission (FCC) measure that was nullified by President Trump in 2017. It blocks ISPs from selling customers' personal data from third parties, which is not currently prevented at the federal level.
Supporters of the bill have pointed to instances in which large ISPs have sold their customers' real-time location data to third parties, saying the companies need to be better regulated.
The Maine privacy law comes as lawmakers on Capitol Hill seek to hammer out the country's first comprehensive privacy bill. Republicans and top industry lobbyists have argued that any federal bill should override state laws in order to avoid a "patchwork" of privacy laws that would be difficult for tech companies to navigate.
Democrats have said they are open to pre-empting state laws as long as the national bill offers strong privacy protections.
Gigi Sohn, former adviser at the FCC under the Obama administration, in a statement applauded the Maine law.
"The bipartisan passage of Maine’s broadband privacy bill demonstrates that when legislators listen to their constituents rather than big corporations, the public wins," Sohn said. "The cable and broadband industry sent a parade of high-powered and highly-paid Washington, DC-based lawyers to Augusta in an effort to defeat this bill, using the same arguments they used to kill the FCC’s sensible and popular 2016 broadband privacy rules."
"When the federal government stands down, the states must step up, and that is what Maine has done here," she added.
Comcast Broke Law 445,000 Times in Scheme to Inflate Bills, Judge Finds
Comcast deception leads to refunds and $9M fine, a fraction of the amount sought.
Comcast yesterday was ordered to refund nearly 50,000 customers and pay a $9.1 million fine when a judge ruled that it violated Washington state consumer protection law hundreds of thousands of times.
Washington State Attorney General Bob Ferguson sued Comcast in August 2016, accusing the nation's largest cable company of tricking customers into buying a "near-worthless 'protection plan' without disclosing its significant limitations."
Buying the $5-per-month plan ostensibly prevented customers from having to pay each time a Comcast technician visited their home to fix problems covered by the plan. But in reality, the plan did not cover the vast majority of wiring problems, the AG's lawsuit said. Moreover, Washington state attorneys said that Comcast led customers to believe that they needed to buy a Service Protection Plan (SPP) to get services that were actually covered for free by the company's "Customer Guarantee."
In yesterday's ruling, King County Superior Court Judge Timothy Bradshaw found that "Comcast violated the Consumer Protection Act more than 445,000 times when it charged tens of thousands of Washingtonians for its Service Protection Plan without their consent," Ferguson's announcement said. Each wrongful monthly charge was a separate violation, so there were multiple violations per customer.
Washington state attorneys sought more than $171 million, asking the judge to order Comcast to pay $88 million in restitution to customers and $83 million in fines.
The $9.1 million fine Comcast was ordered to pay is a fraction of the amount sought by Washington. But Comcast's refunds to customers are separate from the fine, and it's not clear exactly how much they'll amount to.
The AG announcement said:
The court found that Comcast added the SPP to the accounts of 30,946 Washingtonians without their knowledge, and did not tell an additional 18,660 Washingtonians the true cost of the plan. The court ordered Comcast to refund affected consumers, and pay 12 percent interest on the restitution. The amount of restitution is unknown at this time, but is expected to be significant. The court ordered Comcast to issue the refunds within 60 days and report to the state on the specific details and amounts.
Comcast enrolled customers without consent
Comcast violated the consumer protection law "each time it enrolled a Washington consumer in the SPP without their consent and each time it charged a Washington consumer for the SPP following enrollment without consent," the judge wrote.
The judge's ruling further said:
Comcast's unfair or deceptive acts of enrolling Washington consumers in the SPP without their consent, and charging for the SPP following unauthorized enrollment, affected the public interest. Call recordings produced by Comcast show that over one third of Washington SPP customer accounts subscribed via telephone were subscribed to the plan without their consent between July 2014 and June 2016. Pursuant to the parties' stipulation and SPP subscription data produced by Comcast, at least 20,128 customer accounts were subscribed without consent between April 2015 and June 2016 alone (a time period during which Comcast made 71,944 new SPP sales to Washington customers) and 10,818 additional customer accounts were subscribed without consent between July 1, 2014 and March 31, 2015. Numerous consumers were injured in the same manner, i.e., they were subscribed to the SPP, and charged for the SPP, without their consent, and Comcast's subscription practices for obtaining affirmative consent remained unchanged from 2011 to mid-2017.
Washington had alleged that Comcast misled 500,000 Washington consumers and deceived them into paying at least $73 million in subscription fees over a five-year period. Washington state attorneys argued that Comcast committed 1.8 million violations of the Consumer Protection Act, saying that Comcast made false claims regarding the scope of its service protection plans to 700,000 customers and "deceptively represented the scope of its Customer Guarantee to over 1.17 million Washington consumers."
Ferguson also alleged that "Comcast deceived consumers even when mentioning the SPP, telling them the SPP plan was 'free' when they signed up, when in fact, Comcast would automatically charge them every month after the first month."
Recordings of sales calls showed that Comcast often enrolled customers in the service plan even when customers "explicitly rejected" the offer, Ferguson's office said.
Comcast not saved by arbitration clause
Comcast claimed that the court can't order refunds because of the arbitration clause it puts in customer agreements. But Judge Bradshaw wrote that "[t]he State's authority to seek restitution, however, is not derivative of the rights of the individual customers, but is rather intended to benefit the general public."
The judge didn't accept the AG's request for refunds consisting of all service protection plan revenue. "The restitution amounts contemplated here are the actual improper charges, less prior refunds and service call expenses," the judge's ruling said. The ruling covers service-plan sales between Dec. 25, 2013 and July 1, 2017.
Although yesterday's ruling fell far short of what Washington requested, Ferguson's office said that it still set a record. "The nearly $9.1 million penalty represents the highest trial award in a state Consumer Protection case, even before including restitution," the AG's office said. The previous record was $4.3 million, which was "awarded to the state after a 2016 trial in Ferguson's case against Living Essentials and Innovation Ventures over the company's misrepresentations about 5-hour Energy," the AG's office said.
When the lawsuit was filed, Comcast said it had already fixed the problems raised by the attorney general. But Ferguson said that he filed the lawsuit because negotiations with Comcast didn't produce a big enough settlement.
It's not clear whether Comcast will appeal the ruling, but the company appears to be happy it doesn't owe more.
"We're pleased that the court ruled in our favor on several of the attorney general's key claims and awarded less than 5 percent of what he was seeking in damages," Comcast said in a statement to Ars. "The judge recognized that any issues he did find have since been fully addressed by Comcast through the significant investments we have made in improving the customer experience and consent process, and that throughout Comcast acted in good faith. We will continue to make significant investments in how we serve our customers because it is the right thing to do and are fully committed to our customers in Washington."
Sorry, FCC—Killing Net Neutrality Probably Didn’t Expand Internet Access
FCC chairman Ajit Pai had claimed that rosy broadband numbers showed his deregulation approach was working.
If you believe the US Federal Communications Commission, last June’s end of net neutrality—the system that required internet service providers to treat all data equally—has helped more Americans get broadband access. But the data behind this claim is highly controversial.
Every year, the FCC releases a report showing the state of broadband access in the US. This report is the government’s main source of information for measuring connectivity and helps determine how billions in broadband subsidies are allocated. When a draft of this year’s report, circulated in February, found large gains in the number of people with broadband, FCC chairman Ajit Pai claimed it showed that “our approach is working.” (Pai has said that net neutrality is bad for consumers because it discourages innovation.) After activists spotted errors in the draft, the commission adjusted the numbers, but Pai insisted that “the new data doesn’t change the report’s fundamental conclusion”: the so-called digital divide is narrowing.
Yesterday the FCC released the final report. It still shows an increase in broadband access, but it’s doubtful that that is thanks to ending net neutrality, according to broadband expert John Horrigan, a senior fellow at the Technology Policy Institute. “[The data] is just moving along in a way that has been consistent since the later years of the Obama administration,” he says. (Besides, he adds, the report doesn’t tell us much about the digital divide anyway, because the digital divide is about more than just network access.)
In any case, there is a longer-running controversy over how the FCC measures connectivity. The agency puts together the report using self-reported data from internet service providers. That data paints a rather rosy view. If there is service in one corner of a particular census tract, for example, the report says that all parts of the tract are covered. It also uses advertised broadband speeds, which can be very different from the actual speed customers get. This means the data provides a starting point, but it “requires a lot of follow-up vetting from policymakers before they make deployment decisions,” says Horrigan. “If they had better data, they could more quickly respond to gaps that they see.”
The issue is already highly politicized; the FCC’s vote to end net neutrality was split along party lines, with the two Democratic commissioners opposing it and the three Republicans in favor. (The Democrats still contest the data in the latest version of the report.) The politicization is only going to increase as the 2020 presidential race heats up.
Democratic senator Amy Klobuchar, for example, has made connectivity a major part of her campaign, rolling out a trillion-dollar infrastructure bill that includes money to connect every household by 2022. With three other senators, she’s also a sponsor of the bipartisan Improving Broadband Mapping Act, which would require the FCC to use other sources of data for these reports. As Jessica Rosenworcel, one of the FCC’s two Democratic commissioners, said at a Pew event discussing broadband access: “We cannot manage what we do not measure.”
Russian Technology: Can the Kremlin Control the Internet?
Moscow is developing a ‘sovereign’ web that critics say will enhance official power to silence dissent
Max Seddon and Henry Foy
Thousands of protesters had gathered outside government headquarters in Magas, the capital of the heavily Muslim republic of Ingushetia in Russia’s north Caucasus. They were there to oppose concessions in a years’-long bitter border dispute with neighbouring Chechnya, but when they tried to share information about the protest on WhatsApp they found the internet was down on all three major Russian mobile providers across Ingushetia.
The October outage began late at night before the protest was scheduled to start, and lasted until it died down more than two weeks later. When protests sparked up again, the internet suddenly went out of action once more.
It amounted to a virtual blackout: locals’ fondness for voice messages has made WhatsApp the main form of communication in the north Caucasus.
No official explanation was given until spring, when the FSB security service — the successor to the KGB — admitted in court that it had shut down the internet because of “terrorist threats”. All but one of the supposed threats coincided with the dates of the protests, says Andrei Sabinin, who filed a lawsuit against the FSB and the interior ministry over the outages.
“They want to take down platforms for spreading information online,” the human rights lawyer says. “No WhatsApp means no communication in the Caucasus. As soon as you go into Ingushetia, it’s a black hole.”
Protests in Ingushetia over land swaps with Chechnya in October 2018, when WhatsApp was shut down in the republic to curb discussion about the issue
Activists fear Ingushetia’s blackouts could be repeated across Russia thanks to a law signed by President Vladimir Putin in May. The measure ostensibly aims to create a “sovereign internet” — effectively a parallel web run entirely on Russian servers — that would allow Moscow to keep the internet operating in the event of a foreign cyber attack aimed at disabling it.
To do so, internet providers will be required to install equipment which Russia could use to separate itself from the worldwide web at the flick of a “kill” switch. The technology is meant to reroute all external traffic through Russian-controlled nodes while creating a back-up domain name system to help the country’s internet function independently.
Russia’s dependence on foreign systems would be vastly reduced, hastening a global Balkanisation of the internet where the west’s influence is fragmented. It also uses a technique known as deep packet inspection, or DPI, to centralise filtration powers in the hands of Russian censors, who have previously relied on internet providers to block access to banned content.
“It’s framed as a precaution, but it’s actually a means of control,” says Sergey Sanovich, a political scientist at Stanford University who specialises in Russian online censorship. “For the most part this is about making sure the Russian government can, when necessary, have more direct access to control of information space.”
Russia let its internet grow largely untrammeled until 2012, when Mr Putin’s return to the presidency met with mass street protests organised via social media. The Kremlin responded with an aggressive crackdown on online dissent: opposition pages were put on a list of banned websites, dozens of people went to prison for “liking” and reposting material, and independent news websites were brought to heel. But this ad hoc system was seen as inefficient.
In 2014, Mr Putin declared the internet a “CIA project” able to weaken Russia’s sovereignty. Officials blamed the US for using it to start the Arab spring and Ukraine’s Maidan revolution in 2013-14. Some pro-Kremlin figures spoke of emulating China’s Great Firewall — a mix of technologies and laws designed to regulate the internet domestically, whose architects were invited to Moscow to share advice.
The crackdown intensified after 2017, when opposition leader Alexei Navalny aired a video of an anti-corruption investigation — which racked up more than 20m views on YouTube — to help spark the largest nationwide protests since the Soviet Union collapsed. In 2018, Russia restricted access to almost 650,000 websites— a nearly fivefold increase on the year before, according to human rights group Agora.
Yet Russia’s late start meant it lacked both the infrastructure and the human resources to control the internet as effectively as Beijing. China boasts its own hugely popular messaging services, such as WeChat, and has a reported 2m people who police public opinion online. By contrast, Roskomnadzor — the communications ministry’s watchdog — has just over 3,000 employees.
“The Chinese have been blocking things since day one,” says a person close to Russia’s communications ministry. “We can’t do that.”
Roskomnadzor made its most ambitious effort to ban Telegram, the messaging service, last year, accusing it of failing to comply with FSB requests to share user data. The attempt to block the app was a disastrous failure. Pavel Durov, Telegram’s Russian founder, rerouted its traffic through cloud hosting services, forcing censors into a game of whack-a-mole that saw them temporarily take down more than 16m IP addresses, including their own website, while having little effect on Telegram.
The ban became a running joke among officials. At a ministry party last year, Roskomnadzor chief Alexander Zharov was taking photographs of a picturesque sunset on his phone when guests joked that he should share them on the app, prompting a foul-mouthed tirade, according to one guest.
“He’s a hostage to the situation,” says the person close to the ministry. “He knows you can’t block it. We have no control over the process. The guys with epaulettes [in the FSB] bring bills to [lawmakers] and we have to implement them, [but] we look like idiots.”
Part of the problem, experts say, is that Russia’s security bureaucracy rarely takes its own technical limitations into account.
“Attempts to implement Russia’s notion of information security on the internet have been distinguished by mishaps because they don’t really understand how the internet works,” says Keir Giles, a senior fellow of the Russia and Eurasia programme at Chatham House. “If you prevent free flow of information across national borders you’ll break the internet.”
Advocates for greater controls frame it as a way to ensure Russia’s independence from hostile powers. “A great deal of sectors of the real economy — power stations, transport infrastructure — depend very closely on the internet. It’s an issue of state security,” says Andrei Klishas, a member of the upper house of parliament, who co-authored the law.
Mr Klishas cites the latest US cyber security strategy, with its emphasis on making countries like Russia pay “costs likely to deter future cyber aggression,” as the impetus for Moscow to act. President Donald Trump added to those fears last month, when he admitted that the US carried out a cyber attack against a Kremlin-backed “troll farm” in St Petersburg during the 2018 US midterm elections in apparent retaliation for Russia’s online meddling in the 2016 presidential campaign.
Experts say Russia’s justifications for shutting the country off from the global internet are too vague to support such sweeping action. These scenarios include: a threat to network “integrity” that would prevent it from securing user communications; anything that would affect its ability to function such as a natural disaster; and “deliberate destabilising informational pressure from outside or within”.
“There needs to be a way to react to the threats,” says Irina Levova, head of a government working group on internet issues. “[But] you can’t just say let’s go to Mars tomorrow and have everyone go without having the technology to do so.”
Officials successfully tested the DPI system in a “fairly large region with a population of several thousand” — not Ingushetia — several months ago, says Mr Klishas, and plan to do a nationwide test later this year. But serious doubts remain about whether the law’s aims are even realisable.
According to Ms Levova, maintaining the DPI equipment alone may cost as much as Rbs134bn ($2bn) a year— seven times Mr Klishas’ estimate — while many of the law’s technical provisions have yet to be clarified. Roskomnadzor reportedly hired RDP.RU, a company partly owned by state-run Rostelecom, to supply the DPI equipment before the bill was even passed.
There is scepticism in the industry on whether Russia can produce the required technology. It has yet to undergo a full-scale test. And attempts to separate Russia from global technology value chains have failed: 96 per cent of state institutions still use unapproved foreign software despite an attempt to move them on to domestically produced alternatives, according to the audit chamber, which monitors the spending of government departments. Russia’s government bought Rbs82bn in foreign hardware last year, compared with just Rbs18bn of domestically-produced equipment, according to state defence conglomerate Rostec.
“Right now it’s totally impossible,” says a senior executive at a major Russian tech company. “There’s no capacity to produce really productive, powerful chips. It would take years to develop that industry and in that time Apple will have gone much further. We could buy everything from China, they’ve done it all themselves, but that would raise national security questions.”
Centralising control over Russia’s internet — in a bid to make it more secure — could actually make it more vulnerable to foreign attacks, says Artem Kozlyuk, head of privacy rights group Roskomsvoboda. “Where the internet is more centralised and there is one state provider, then there is more risk of external meddling,” he says.
Russia might also be trying to safeguard itself from the consequences of its own cyber operations, Mr Giles says. The WannaCry and NotPetya attacks — which ravaged businesses globally with ransomware and were blamed on Moscow — did considerable damage in Russia, taking some state-owned companies’ systems offline. “Massive disruption has blowback,” he says. “[These measures] make sure that you don’t suffer damage by cutting yourself off.”
When Russian troops seized Crimea in 2014, they quickly took over the peninsula’s main internet exchange point and cable connections to the mainland. “That was the gold standard to achieve total information dominance — the only things the target population is receiving are yours,” says Mr Giles.
Activists fear the internet isolation plan will do the same to Russian citizens. “It’ll be a totally different internet. It won’t be as quick or secure as it is now,” Mr Kozlyuk says. “Blocking will be totally non-transparent. It might take months until someone finds out there was some sort of internal order [to block a site].”
Mr Klishas says the system will simply help Roskomnadzor enforce existing law, which is ostensibly aimed at preventing terrorism and child pornography but is often redirected to suppress dissent. “When states started fighting money laundering, the system was ineffective for a long time, especially [against] problems like drug trafficking and international terrorism. People always found ways to finance this unlawful activity. Then new procedures appeared to close these legal loopholes,” he says.
Undeterred by the Telegram ban, the FSB recently made a similar demand to Yandex, Russia’s largest tech company. Yandex, which already shares some data with authorities, said on Tuesday it would push back against the FSB’s requests to decrypt all user communications.
Despite sweeping requirements on data storage and censorship compliance — which saw LinkedIn banned in 2016 — Roskomnadzor has made little progress in bending Facebook and Google to its demands. In December Russia fined Google Rbs500,000 for failing to sign up to a government system for sharing information with the security services. Google continues to defy the law, but there has been an escalation in Moscow’s attempts to pressure western companies, Mr Sanovich says.
“The irony is that Putin, who is conducting all these information operations abroad, also makes Google or Facebook enforce censorship at home,” he adds. “If they comply they risk making the regime stronger and compromising the integrity of their platform, but it’s much more significant if they are blocked. The media environment in Russia is now so heavily government-controlled that these providers play a vital role in giving Russians access to unfiltered information.”
Roskomnadzor is doubling down on that by making it more difficult to avoid its bans. Though virtual private networks remain widely accessible, several have recently abandoned their Russian servers after the watchdog ordered them to share user traffic information with the Kremlin.
Mr Kozlyuk expects it to use DPI to enforce the ban by filtering individual VPN traffic and fining those using them. “It’s the logical extension,” he says, “first you control the content, then the infrastructure, then the users.”
The ‘doomsday’ effort at online independence
Half of Russia’s internet traffic passes through an unassuming 19-storey high rise in southwestern Moscow that houses MSK-IX, the largest of the country’s internet exchange points. The data centre is the physical point of contact for over 500 providers, linking traffic in western Russia with the world.
Under Russia’s new internet “sovereignty” law, providers are required to install black boxes at every stage of the process using deep packet inspection, a technology that can inspect, filter and reroute web traffic. A new internet monitoring centre will use DPI to give the Kremlin a closer look at all information going in and out of Russia.
“We have no idea whatsoever about the communications networks installed in Russia and cross-border connections . . . who owns them, how they are used, what information is carried along them,” MP Andrei Lugovoi, who co-authored the bill, said in February. “The centre we are creating will see it all online.”
Using the technology, Russia’s censors will create a parallel domain server to function as a domestically-run, back-up internet in the event of a cyber attack. It will also give the Kremlin far greater control over the web within its borders by placing censorship directly in the state’s hands. Russia can refine its censorship by blocking individual pages rather than whole servers. Should that fail, it can be used to reduce internet speed for targeted groups.
“The more sovereignty we have, including in the digital field the better. This is a very important area,” Mr Putin said.
“It’s a doomsday device — if you want to turn your country into North Korea, you can,” says Sergey Sanovich, a political scientist at Stanford University. But unlike China, which began censoring its internet decades ago, Russia’s internet is built into the global web — carrying a large risk of collateral damage. “It would be such a heavy blow to the [Russian] economy and the state: they all depend on IT services,” says Mr Sanovich.
For Two Hours, a Large Chunk of European Mobile Traffic was Rerouted Through China
It was China Telecom, again. The same ISP accused last year of "hijacking the vital internet backbone of western countries."
For more than two hours on Thursday, June 6, a large chunk of European mobile traffic was rerouted through the infrastructure of China Telecom, China's third-largest telco and internet service provider (ISP).
The incident occurred because of a BGP route leak at Swiss data center colocation company Safe Host, which accidentally leaked over 70,000 routes from its internal routing table to the Chinese ISP.
The Border Gateway Protocol (BGP), which is used to reroute traffic at the ISP level, has been known to be problematic to work with, and BGP leaks happen all the time.
However, there are safeguards and safety procedures that providers usually set up to prevent BGP route leaks from influencing each other's networks.
But instead of ignoring the BGP leak, China Telecom re-announced Safe Host's routes as its own, and by doing so, interposed itself as one of the shortest ways to reach Safe Host's network and other nearby European telcos and ISPs.
Mobile operators in France, Holland, Switzerland affected
For the subsequent hours, until China Telecom operators realized what they have done, traffic meant for many European mobile networks was rerouted through China Telecom's network.
"Some of the most impacted European networks included Swisscom (AS3303) of Switzerland, KPN (AS1130) of Holland, and Bouygues Telecom (AS5410) and Numericable-SFR (AS21502) of France," said Doug Madory, Director of Oracle's Internet Analysis division (formerly Dyn).
"Often routing incidents like this only last for a few minutes, but in this case many of the leaked routes in this incident were in circulation for over two hours," Madory added.
For the users on the affected mobile network, this manifested as slow connections or the inability to connect to some servers.
@Swisscom_B2B_en Are you having routing problems? We have a hard time reaching multiple servers. BGP Hijack ? https://t.co/0EcyQAzP8s ?
— Didier Raboud (@OdyX_) June 6, 2019
China Telecom, again!
"Today's incident shows that the internet has not yet eradicated the problem of BGP route leaks," Madory said.
"It also reveals that China Telecom, a major international carrier, has still implemented neither the basic routing safeguards necessary both to prevent propagation of routing leaks nor the processes and procedures necessary to detect and remediate them in a timely manner when they inevitably occur.
"Two hours is a long time for a routing leak of this magnitude to stay in circulation, degrading global communications."
But if any other ISP would have caused this incident, it would have likely been ignored. Alas, it was China Telecom, and there's a backstory.
An academic paper published by experts from the US Naval War College and Tel Aviv University in October last year blamed China Telecom for "hijacking the vital internet backbone of western countries."
The report argued that the Chinese government was using local ISPs for intelligence gathering by systematically hijacking BGP routes to reroute western traffic through its country, where it can log it for later analysis.
While some experts have criticized the paper, Madory is one of the people who stood by its technical accuracy -- albeit not by its politically-charged accusations-- confirming that China Telecom has rerouted western traffic through its network for years many times before.
However, Madory couldn't say if this was intentional, or a technical or human error.
Back last year, Madory recommended that internet service providers support up-and-coming BGP security standards such as RPKI, as a way to prevent such internet traffic "misdirections" from taking place in the first place.
Outside the U.S., It’s All About WhatsApp
Adam Satariano, who covers technology in Europe, became a frequent user when he moved to London.
Featuring Adam Satariano
How do New York Times journalists use technology in their jobs and in their personal lives? Adam Satariano, a technology correspondent based in London, discussed the tech he’s using.
You reported from the United States before moving to London. How has your tech setup changed?
I moved to London three years ago, and the biggest change has been how to communicate with colleagues, family and friends.
It’s hard for many Americans to grasp how pervasive WhatsApp, the messaging app owned by Facebook, is outside the United States. I’m in family groups on WhatsApp for sharing photos of my kids, another with friends called “Steve Kerr 2020” to banter about Bay Area sports, and others for news about my sons’ elementary school classes. One group, called “Anybody Fancy a Pint,” is just for friends in my neighborhood in London to use if one of us is going to a local pub and seeking company.
This isn’t unique to living in Europe, but I’m laughably reliant on Google Maps. I invariably end up being that annoying person on the street staring down at my phone doing circles to figure out which direction to go.
Sure, I worry about privacy and the ungodly amount of data that Google collects, but it feels like a fair trade when I’m lost or navigating a new place. I bookmark restaurants, bookstores and cafes that I want to visit or remember for a future trip. (Product suggestion: Google, please add a way to write notes for saved locations in Maps.)
On the road, I also use a debit card from Revolut that you can top up with money through an app and doesn’t have foreign transaction fees.
With the G.D.P.R. and other regulations, Europe has been tough on tech companies when it comes to digital privacy. How is that affecting the internet and apps in Europe?
The biggest difference for the average person is the comical number of notifications you receive when visiting a website or signing up for a new online service. A key part of the General Data Protection Regulation is that people must be given detailed information about the data being collected about them. But it’s overload. I feel ground into submission. Most people I know express annoyance more than gratitude about the law.
That said, there are changes below the surface that people are benefiting from.
One aspect of the law I’d love to see made easier to use is letting people ask a company to turn over all the data it has on them. It’s currently not an easy or inviting process. When I asked a few companies for information, the data that came back wasn’t complete or comprehensive.
Why do Europeans seem to care about digital privacy so much more than Americans?
There isn’t a unified view on privacy across Europe. Citizens of a country like Germany put a priority on privacy for unique historical reasons. Yet in Britain, where there is more surveillance than in probably any other Western country, people don’t seem to be overly concerned.
In general, people view privacy the way they do in the United States: The amount of data collected by the likes of Facebook and Google makes them somewhat uncomfortable, but not enough to stop using Google or Instagram. I hear much more concern about the amount of time we’re spending staring at screens.
What technology do you use that helps you do your job as a tech reporter?
My setup needs an upgrade.
I was in Paris recently for a news conference, and a reporter at a different news publication pulled out a keyboard that wirelessly connected to an iPhone that he placed in an impressive-looking stand. He also had an audio-recording app called AudioNote that synced with the notes he was typing. By clicking on a word within his notes, he could jump to that part of the audio recording to check the exact wording of a comment.
As I was rummaging through my notes, I was seething with envy picturing him efficiently writing a finely crafted story.
This is a safe space, so I’ll admit that I have organizing issues. I have notes scattered in paper notebooks, email draft folders, Google Docs, Evernote, Word and the Notes program on my MacBook. I have at least three different “story ideas” files. There is a method to the madness, I swear, but I am constantly panicking that I lost a quote, an anecdote or a phone number. It’s an affliction. The Times needs somebody on staff who can Marie Kondo my digital work life.
Outside of work, what tech product are you personally obsessed with, and what do you do with it?
This isn’t really tech, but I’m a devotee of Parker pens. They write smoothly and fit easily in my pocket, but aren’t so expensive that I feel bad losing one.
I’m also always looking for a better backpack. I have one made by a company called Knomo in London that has a good mix of space for a laptop and other stuff, but could use extra compartments and more comfortable shoulder pads. Instagram serves me a constant stream of backpack ads, and I don’t even mind.
There are a few apps that I can’t live without. One is The Athletic. In Europe, it’s hard to keep up with American sports, but The Athletic hired some of the best sportswriters in the Bay Area to cover my favorite teams. The subscription isn’t cheap, but it’s the best digital twist on a newspaper sports page that I’ve seen.
I use Twitter an unhealthy amount, but I’ve started deleting it on weekends.
My favorite app is Spotify. I’m listening constantly. I have a playlist called “Sunday Morning” that I’ve been curating for years and love — even if my wife jokingly calls it “music that makes you want to kill yourself.”
Stanford Engineers Make Editing Video as Easy as Editing Text
A new algorithm allows video editors to modify talking head videos as if they were editing text – copying, pasting, or adding and deleting words.
In television and film, actors often flub small bits of otherwise flawless performances. Other times they leave out a critical word. For editors, the only solution so far is to accept the flaws or fix them with expensive reshoots.
Imagine, however, if that editor could modify video using a text transcript. Much like word processing, the editor could easily add new words, delete unwanted ones or completely rearrange the pieces by dragging and dropping them as needed to assemble a finished video that looks almost flawless to the untrained eye.
A team of researchers from Stanford University, Max Planck Institute for Informatics, Princeton University and Adobe Research created such an algorithm for editing talking-head videos – videos showing speakers from the shoulders up.
The work could be a boon for video editors and producers but does raise concerns as people increasingly question the validity of images and videos online, the authors said. However, they propose some guidelines for using these tools that would alert viewers and performers that the video has been manipulated.
“Unfortunately, technologies like this will always attract bad actors,” said Ohad Fried, a postdoctoral scholar at Stanford. “But the struggle is worth it given the many creative video editing and content creation applications this enables.”
The application uses the new transcript to extract speech motions from various video pieces and, using machine learning, convert those into a final video that appears natural to the viewer – lip-synched and all.
“Visually, it’s seamless. There’s no need to rerecord anything,” said Fried, who is first author of a paper about the research published on the pre-publication website arXiv. It will also be in the journal ACM Transactions on Graphics. Fried works in the lab of Maneesh Agrawala, the Forest Baskett Professor in the School of Engineering and senior author of the paper. The project began when Fried was a graduate student working with computer scientist Adam Finkelstein at Princeton, more than two years ago.
Should an actor or performer flub a word or misspeak, the editor can simply edit the transcript and the application will assemble the right word from various words or portions of words spoken elsewhere in the video. It’s the equivalent of rewriting with video, much like a writer retypes a misspelled or unfit word. The algorithm does require at least 40 minutes of original video as input, however, so it won’t yet work with just any video sequence.
As the transcript is edited, the algorithm selects segments from elsewhere in the recorded video with motion that can be stitched to produce the new material. In their raw form these video segments would have jarring jump cuts and other visual flaws.
To make the video appear more natural, the algorithm applies intelligent smoothing to the motion parameters and renders a 3D animated version of the desired result. However, that rendered face is still far from realistic. As a final step, a machine learning technique called Neural Rendering converts the low-fidelity digital model into a photorealistic video in perfect lip-synch.
To test the capabilities of their system the researchers performed a series of complex edits including adding, removing and changing words, as well as translations to different languages, and even created full sentences as if from whole cloth.
In a crowd-sourced study with 138 participants, the team’s edits were rated as “real” almost 60 percent of the time. The visual quality is such that it is very close to the original, but Fried said there’s plenty of room for improvement.
“The implications for movie post-production are big,” said Ayush Tewari, a student at the Max Planck Institute for Informatics and the paper’s second author. It presents for the first time the possibility of fixing filmed dialogue without reshoots.
Nonetheless, in an era of synthesized fake videos such capabilities raise important ethical concerns, Fried added. There are very valuable and justifiable reasons to want to edit video in this way, namely the expense and effort required to rerecord or repair such flaws in video content, or to customize existing audio-visual video content by audience. Instructional videos might be fine-tuned to different languages or cultural backgrounds, for instance, or children’s stories could be adapted to different ages.
“This technology is really about better storytelling,” Fried said.
Fried acknowledges concerns that such a technology might be used for illicit purposes, but says the risk is worth taking. Photo-editing software went through a similar reckoning, but in the end, people want to live in a world where photo-editing software is available.
As a remedy, Fried says there are several options. One is to develop some sort of opt-in watermarking that would identify any content that had been edited and provide a full ledger of the edits. Moreover, researchers could develop better forensics such as digital or non-digital fingerprinting techniques to determine whether a video had been manipulated for ulterior purposes. In fact, this research and others like it also build the essential insights that are needed to develop better manipulation detection.
None of the solutions can fix everything, so viewers must remain skeptical and cautious, Fried said. Besides, he added, there are already many other ways to manipulate video that are much easier to execute. He said that perhaps the most pressing matter is to raise public awareness and education on video manipulation, so people are better equipped to question and assess the veracity of synthetic content.
Additional co-authors include Michael Zollhöfer, a visiting assistant professor at Stanford, and colleagues at the Max Planck Institute for Informatics, Princeton University and Adobe Research.
The research was funded by the Brown Institute for Media Innovation, the Max Planck Center for Visual Computing and Communications, a European Research Council Consolidator Grant, Adobe Research and the Office of the Dean for Research at Princeton University.
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Tom Abate, Stanford Engineering: (650) 736-2245, firstname.lastname@example.org
Steven M. Schultz, Princeton University: 609-258-3617, email@example.com
Credder Hopes to Crowdsource Away Fake News
As Facebook and Twitter grapple with misinformation and conspiracies on their platforms, a new crop of startups have emerged to try and use Yelp-like ratings to identify and amplify trusted stories.
These user-powered sites include Our.News and TrustedNews. Last year, even Elon Musk pitched the idea of creating a site he called “Pravda”—a media credibility site for ranking journalists and outlets.
Credder (they “dish out credibility”)—which launched its public-facing beta on Monday—is perhaps the most developed. “We were the first ones here,” co-founder Chase Palmieri says. And they did start thinking about this idea before the 2016 election, when fake news became more of an issue. “Pravda was an idea on Twitter, that’s all it’s been. Elon is a pretty busy guy.”
The Credder team wants to provide readers a solution to clickbait and sensationalism that “doesn’t involve outsourcing their critical thinking” to an algorithm or another person—like a Facebook moderator. They say that having news outlets and social media platforms censor untrustworthy content on readers’ behalf strikes them as fairly draconian.
When Palmieri and his two co-founders Austin Walter and Jared Fesler graduated from California State University, Chico, they knew they wanted to start a business, but didn’t know what kind. They kept in touch, pitched each other on ideas, and worked other jobs.
Palmieri moved to Italy, but also continued to own a restaurant back in Petaluma, where he managed its Yelp page from abroad. He liked the way the reviews got him to change his business’s behavior. At the end of 2015, alarmed by the “rising amount of clickbait,” they set about making a product to evaluate the “trustworthiness” of news articles in a similar way. They want news producers to “compete for trust, not clicks”—and aspire to help drive traffic and revenue “to the people who are winning that game.” Their first adviser was Patrick Lee, the co-founder and former CEO of Rotten Tomatoes. Instead of a tomato icon, Credder uses a picture of cheddar cheese. (Golden cheese for most trustworthy, moldy cheese for least.)
Users assess individual articles by ranking them between one star, for least trustworthy, and five stars for most. The next step is to decide whether an article was “credible”, “illogical”, “biased”, a “mistake” or “not credible.” Each of those five then has additional options. “Biased” prompts new choices like “Hit Piece,” “Religious Bias,” or “Financial Incentive.” Users then can explain their review in a text box before submitting.
The co-founders wanted it to be more nuanced than a five-star rating system, but still convenient enough that people would actually use it. Like Rotten Tomatoes, you can read reviews both by the general public and by professional journalists.
Unlike Yelp, where restaurants are reviewed, but not individual dishes, Credder users rate articles, not the outlet as a whole. But outlets and journalists are then also given their own composite scores.
Credder’s founders hope journalists will use the reviews to inform their writing, and be motivated to increase their trust score. If a journalist gets feedback that their headlines are too sensational, and their editor won’t change their practice, well, Palmieri says, “maybe the journalist might think about working for a different outlet.” He also hopes Credder will “protect, empower and connect news consumers on the go” by providing a way to warn each other about stories they should avoid or approach cautiously. Right now, they say, news consumers have little recourse to hold an outlet or reporter accountable for low-quality content.
As of last Friday, 2,619 users had created accounts on Credder, and 41 journalists. The co-founders expect distribution to be their biggest challenge.
But even if the idea takes off, it remains to be seen whether journalists will care about the feedback they get. As a writer often in progressive outlets, how would I know that people who rank my articles as untrustworthy aren’t just right-wing diehards looking to professionally damage journalists they blame for left-wing politics? After all, much of the erosion of trust in the media is rooted in partisanship; Democrats see most news as unbiased, while Republicans believe the opposite. And while trust in media is still down from earlier decades, it’s been making a comeback since it hit an all-time low in 2016.
Credder hopes to have a solution for this, too. It wants to hold reviewers accountable, allowing people to up-vote or down-vote reviews based on how helpful they found them, like comments on Reddit. And you can see when a user joined the site, how many reviews they’ve left in total, and how many of their reviews were up-voted as helpful.
Credder hopes to entice journalists to spend their time reviewing fellow journalists, too, by offering additional exposure and new audiences. More intriguing, however, Credder is planning to add a tipping feature, so readers could reward trustworthy writers, either one-time or on a recurring basis.
Another issue, as the editor of Monday Note, Frederic Filloux, pointed out, is that the number of movies and TV shows released last year in the United States is dwarfed by the number of news articles, making the comparison to Rotten Tomatoes somewhat distorted. The sheer number of reviews required to comprehensively evaluate the news is just a considerable challenge. Credder estimates they’ll need about 10,000 people to review an article every day, in order to get enough feedback to accurately rate most of the news produced from the world’s top 70 outlets.
The co-founders argue that journalists don’t really have meaningful ways to learn how individual articles were received. Reporters can look at the number of clicks, shares, time spent reading an article, and monthly site visits as a way to quantify success — but these are admittedly imperfect measures. And of course, people who respond to an article directly are disproportionately people who loved or hated it.
Still, as comforting as it is to think that a new tech tool may be just what readers need to navigate a confusing and deliberately misleading news environment, I can’t help but think of the doctored video of Nancy Pelosi slurring her words that Donald Trump circulated last week and Facebook refused to take down. As a top Facebook official put it, they wanted to empower users “to make their own informed choice about what to believe.”
There are no articles on Credder about that incident, and given the site’s infancy, it’s hard to know how that would have been assessed. But as New York Times tech columnist Charlie Warzel recently noted, “whether repeating the lie or attempting to knock it down, the dominant political narrative” for days after focused squarely on Pelosi’s health. No amount of fact checkers, negative Credder ratings, or “dislikes” can really counteract that millions of people have now seen the viral Pelosi hoax, and consciously or not, embedded those images in their brains.
Which is to say, welcome Credder, it’ll be interesting to see where you go and how you grow. But to combat the powerful lies flooding the internet and shaping our discourse, titans like Facebook should still take responsibility.
Should Digital Files be Considered a Commons? Copyright Infringement in the Eyes of Lawyers
Jérôme Hergueux & Dariusz Jemielniak
Download citation https://doi.org/10.1080/01972243.2019.1616019
In this article
• Research design
In this article, we draw on a survey conducted with elite upcoming lawyers from all around the world to shed new light on the ethical acceptability of file sharing practices. Although file sharing is typically illegal, our findings show that lawyers overwhelmingly perceive it as an acceptable social practice. The main criterion used by lawyers to decide on the ethical acceptability of file sharing is whether or not the infringer derives any monetary benefits from it. Further, our findings show that lawyers in the public sector (including judiciary and academia) are even more tolerant of online copyright infringement than those in the private sector. Interestingly, our data suggests that this is largely the result of self-selection: lawyers who lean more on the side of broad disclosure and social sharing tend to orient themselves toward the public sector. Implications for the current state of the debate on the reform of copyright law are discussed.
I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
Jack Valenti, former president of the Motion Picture Association of America
The war against illegal file-sharing is like the church's age-old war against masturbation. It's a war you just can't win.
Lawrence Lessig, Harvard Law Professor and Creative Commons founder
In the early 2000s, the advent of peer-to-peer file sharing technologies à la Napster and The Pirate Bay dramatically increased the public’s consumption of digital media—concurrently causing a decrease in industry revenue, as well as an increase in social welfare (De Vany and Walls 2007 De Vany, A. S., and W. D. Walls. 2007. Estimating the effects of movie piracy on box-office revenue. Review of Industrial Organization 30 (4):291–301. doi: 10.1007/s11151-007-9141-0.[Crossref], [Web of Science ®] , [Google Scholar]; Rob and Waldfogel 2006 Rob, R., and J. Waldfogel. 2006. Piracy on the high C’s: Music downloading, sales displacement, and social welfare in a sample of college students. The Journal of Law and Economics 49 (1):29–62. doi: 10.1086/430809.[Crossref], [Web of Science ®] , [Google Scholar]). As a result of the potential threat posed by this technological shock to the long-term economic viability of creative works, copyright protection for digital goods emerged as a high stake legal issue (Li and Nergadze 2009 Li, X., and N. Nergadze. 2009. Deterrence effect of four legal and extralegal factors on online copyright infringement. Journal of Computer-Mediated Communication 14 (2):307–27. doi: 10.1111/j.1083-6101.2009.01442.x.[Crossref], [Web of Science ®] , [Google Scholar]; Nowak 2016 Nowak, J. 2016. The good, the bad, and the commons: A critical review of popular discourse on piracy and power during anti-ACTA protests. Journal of Computer-Mediated Communication 21 (2):177–94. doi: 10.1111/jcc4.12149.[Crossref], [Web of Science ®] , [Google Scholar]).
The past decade, however, has seen the rise of new market entrants (e.g., Spotify and Netflix), which leverage technology to engage in bundle pricing. This evolution in the business model largely restored industry revenue and profits (Aguiar and Waldfogel 2015 Aguiar, L., and J. Waldfogel. 2015. Streaming reaches flood stage: Does spotify stimulate or depress music sales? (NBER working paper no. 21653). Cambridge, MA: National Bureau of Economic Research.
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Also, media creators and distributors have evolved and adapted to digital piracy (Aversa, Hervas-Drane, and Evenou 2019 Aversa, P., A. Hervas-Drane, and M. Evenou. 2019. Business model responses to digital piracy. California Management Review 61 (2):30–58. doi: 10.1177/0008125618818841.[Crossref], [Web of Science ®] , [Google Scholar]). Spotify in particular—created in Sweden, the hotbed of piracy—drew significantly from the pirate content distribution model, and built a sustainable competitive advantage based on intuitive usability and an excellent understanding of customers’ needs (Sun 2019 Sun, H. 2019. Digital revolution tamed: The case of the recording industry. London: Palgrave Macmillan.[Crossref] , [Google Scholar]), as well as a clever combination of freemium and paid services (Yan and Wakefield 2018 Yan, J. K., and R. Wakefield. 2018. The freemium (two-tiered) model for individual cloud services: Factors bridging the free tier and the paying tier. Journal of Information Technology Management 29 (1):47–61. [Google Scholar]). The Spotify model is largely similar to that of Netflix (Aguiar and Waldfogel 2018 Aguiar, L., and J. Waldfogel. 2018. Netflix: Global hegemon or facilitator of frictionless digital trade? Journal of Cultural Economics 42 (3):419–45. doi: 10.1007/s10824-017-9315-z.[Crossref], [Web of Science ®] , [Google Scholar]; Lobato 2019 Lobato, R. 2019. Netflix nations: the geography of digital distribution. New York: NYU Press. [Google Scholar]). More traditional media corporations also try to adopt this model, even though they tend to be less successful than the new entrants, and face additional competition from tech giants, such as Amazon and Google (Wayne 2018 Wayne, M. L. 2018. Netflix, Amazon, and branded television content in subscription video on-demand portals. Media, Culture & Society 40 (5):725–41. doi: 10.1177/0163443717736118.[Crossref], [Web of Science ®] , [Google Scholar]).
Following the widespread diffusion of legal services for downloading and streaming high-quality content, the European Commission commissioned a study to inform the formulation of its copyright policy. Consistent with the academic literature cited above, the 2015 report concluded there was no robust statistical evidence of sales displacement by online copyright infringement. In effect, the practice of file sharing is both revenue neutral for the industry as well as globally welfare enhancing (van der Ende et al. 2014 van der Ende, M., J. Poort, R. Haffner, P. de Bas, A. Yagafarova, S. Rohlfs, and H. van Til. 2014. Estimating displacement rates of copyrighted content in the EU (final report). Brussels: Publications Office, European Commission. [Google Scholar]). Nevertheless, the tension between expanding the public domain and strengthening copyright protections for digital media continues to grow (Jetha, Berente, and King 2017 Jetha, K., N. Berente, and J. L. King. 2017. Digital and analog logics: An analysis of the discourse on property rights and information goods. The Information Society 33 (3):119–32. doi: 10.1080/01972243.2017.1294125.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]). The recent debates in the EU Parliament about Article 11 and 13 of the copyright reform, and the US advocating for both increased intellectual property protection and a free and open Internet (Haggart and Jablonski 2017 Haggart, B., and M. Jablonski. 2017. Internet freedom and copyright maximalism: Contradictory hypocrisy or complementary policies? The Information Society 33 (3):103–18. doi: 10.1080/01972243.2017.1294128.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]), are just two out of many examples.
In the meantime, the very notions of ownership and fairness when sharing digital goods (i.e., goods with zero reproduction cost) underwent significant changes. The understanding of what carries value, what ownership means, and what is fair, have all been largely redefined by consumers—with wide social acceptance of copying and sharing digital files, be it among the youngest generations (Altschuller and Benbunan-Fich 2009 Altschuller, S., and R. Benbunan-Fich. 2009. Is music downloading the new prohibition? What students reveal through an ethical dilemma. Ethics and Information Technology 11 (1):49–56. doi: 10.1007/s10676-008-9179-1.[Crossref], [Web of Science ®] , [Google Scholar]; Feldman and Nadler 2006 Feldman, Y., and J. Nadler. 2006. Expressive law and file sharing norms. San Diego Law Review 43:577–618. [Google Scholar]; Robertson et al. 2012 Robertson, K., L. McNeill, J. Green, and C. Roberts. 2012. Illegal downloading, ethical concern, and illegal behavior. Journal of Business Ethics 108 (2):215–27. doi: 10.1007/s10551-011-1079-3.[Crossref], [Web of Science ®] , [Google Scholar]; Wang and McClung 2012 Wang, X., and S. R. McClung. 2012. The immorality of illegal downloading: The role of anticipated guilt and general emotions. Computers in Human Behavior 28 (1):153–9. doi: 10.1016/j.chb.2011.08.021.[Crossref], [Web of Science ®] , [Google Scholar]) or the broader population (Mandel 2014 Mandel, G. N. 2014. The public perception of intellectual property. Florida Law Review 66:261–312. [Google Scholar]; Mandel, Fast, and Olson 2015 Mandel, G. N., A. A. Fast, and K. R. Olson. 2015. Intellectual property law's plagiarism fallacy. Bringham Young University Law Review (4):915–83. [Google Scholar]; Reyman 2009 Reyman, J. 2009. The rhetoric of intellectual property: Copyright law and the regulation of digital culture. London: Routledge.[Crossref] , [Google Scholar]; Svensson and Larsson 2012 Svensson, M., and S. Larsson. 2012. Intellectual property law compliance in Europe: Illegal file sharing and the role of social norms. New Media & Society 14 (7):1147–63. doi: 10.1177/1461444812439553.[Crossref], [Web of Science ®] , [Google Scholar]).
In spite of the changes in business models and social perceptions and norms, file sharing is typically prohibited (and severely repressed) across legal jurisdictions, and exceptions to this rule (e.g., the fair use doctrine in the US) are both rare and heavily restricted.1 In general lawmakers’ approach to copyright protection of digital media has mostly remained relatively stable over the past decade (Drahos 2016 Drahos, P. 2016. A philosophy of intellectual property. London: Routledge.[Crossref] , [Google Scholar]). Legal scholars have been calling for a rethink of the intellectual property regime (Kapczynski 2011 Kapczynski, A. 2011. The cost of price: Why and how to get beyond intellectual property internalism. UCLA Law Review 59:970–1026.[Web of Science ®] , [Google Scholar]).
Unlike previous studies based on perceptions of populations such as students and laypersons, we focus on how lawyers themselves perceive of file sharing. We elicit the views of an international panel of lawyers on the ethics of file sharing, and analyze their perceptions of fairness as a function of: (i) the rationale provided for infringing copyright, and (ii) lawyers’ personal characteristics.2 Two lawyer-specific characteristics are of particular interest to us in this respect: (i) their region of origin, and (ii) their intended sector of professional practice (i.e., public or private). These characteristics are especially relevant to file sharing ethics. First, developed and developing economies face very different challenges in terms of copyright protection, and lawyers coming from different cultural backgrounds could very well take different ethical stances with respect to file sharing practices. Second, lawyers operating in the public and private sector might strike an entirely different balance in the tradeoff between letting society benefit widely from creative works on the one hand, and properly incentivizing authors on the other.3
To this end, we studied the perceptions of international LL.M. (Masters of Law) students at Harvard University based on 109 completed quantitative survey questionnaires and 50 qualitative interviews.4 These students already had a law degree from their home countries, providing a unique opportunity to compare the perceptions of top-notch lawyers from around the world in a single setting.
We decide to conduct this study from the social studies of the information society perspective—not ethics. Broadly, in information society related research domains, ethics-focused decision-making has been quite well researched over the last two decades (e.g., Chen, Bharadwaj, and Goh 2017 Chen, Y., A. Bharadwaj, and K.-Y. Goh. 2017. An empirical analysis of intellectual property rights sharing in software development outsourcing. MIS Quarterly 41 (1):131–62. doi: 10.25300/MISQ/2017/41.1.07.[Crossref], [Web of Science ®] , [Google Scholar]; Moores and Chang 2006 Moores, T. T., and J. C.-J. Chang. 2006. Ethical decision making in software piracy: Initial development and test of a four-component model. MIS Quarterly 30 (1):167–80.[Crossref], [Web of Science ®] , [Google Scholar]; Walsham 1996 Walsham, G. 1996. Ethical theory, codes of ethics and IS practice. Information Systems Journal 6 (1):69–81. doi: 10.1111/j.1365-2575.1996.tb00005.x.[Crossref], [Web of Science ®] , [Google Scholar]). Specifically, in the case of unauthorized digital file sharing, the existing research can be broadly divided into: moral reasoning focused or solutions focused (see literature analysis in Siponen and Vartiainen 2004 Siponen, M., and T. Vartiainen. 2004. Unauthorized copying of software and levels of moral development: A literature analysis and its implications for research and practice. Information Systems Journal 14 (4):387–407. doi: 10.1111/j.1365-2575.2004.00179.x.[Crossref], [Web of Science ®] , [Google Scholar]). We are taking a somewhat different approach, following the call to shift from computer ethics to the practicalities of technology governance (Stahl et al. 2014 Stahl, B. C., G. Eden, M. Jirotka, and M. Coeckelbergh. 2014. From computer ethics to responsible research and innovation in ICT: The transition of reference discourses informing ethics-related research in information systems. Information & Management 51 (6):810–8. doi: 10.1016/j.im.2014.01.001.[Crossref], [Web of Science ®] , [Google Scholar]). We believe that it is important to zero in on the actors’ own conceptualizations and views, and avoid framing the conversation in terms of ethical models, while accepting that these views need not be theoretically coherent. Our findings do have clear practical implications—our purpose is mainly to understand and uncover something new about an understudied, yet highly relevant professional group for issues related to file sharing, rather than make an incremental contribution that refines the existing literature on proposed legal solutions (see, e.g., Aigrain 2012 Aigrain, P. 2012. Sharing: Culture and the economy in the internet age. Amsterdam: Amsterdam University Press.[Crossref] , [Google Scholar]).
Ethnographic research on digital file sharers shows that they are often aware of the illegal nature of their practices. They go through with file sharing anyway as their needs are not satisfied by the market, and eventually perceive file sharing as acceptable (Beekhuyzen, von Hellens, and Nielsen 2015 Beekhuyzen, J., L. von Hellens, and S. Nielsen. 2015. Illuminating the underground: The reality of unauthorised file sharing. Information Systems Journal 25 (3):171–92. doi: 10.1111/isj.12069.[Crossref], [Web of Science ®] , [Google Scholar]). The fear of punishment typically affects less habitual and less skilled downloaders (LaRose et al. 2005 LaRose, R., Y. J. Lai, R. Lange, B. Love, and Y. Wu. 2005. Sharing or piracy? An exploration of downloading behavior. Journal of Computer-Mediated Communication 11 (1):1–21. doi: 10.1111/j.1083-6101.2006.tb00301.x.[Crossref], [Web of Science ®] , [Google Scholar]). These insights suggest that self-policing and personal ethics—effective in restricting Internet uses in some contexts (e.g., Li et al. 2014 Li, H., R. Sarathy, J. Zhang, and X. Luo. 2014. Exploring the effects of organizational justice, personal ethics and sanction on internet use policy compliance. Information Systems Journal 24 (6):479–502. doi: 10.1111/isj.12037.[Crossref], [Web of Science ®] , [Google Scholar])—may not be sufficient for curbing unauthorized file sharing practices. For a nuanced understanding, identification of the contexts in which file sharing practices are perceived to be fair by different populations is critical (Jemielniak and Przegalinska 2020 Jemielniak, D., and A. Przegalinska. 2020. Collaborative society. Cambridge, MA: MIT Press. [Google Scholar]). Such understanding may also be a prerequisite for crafting effective policies.
It is rather surprising that no research to date has focused on lawyers’ perceptions of file sharing practices, especially since their expertise is regularly invoked in lay discussions on the nature of copyright and its regulation (Fiesler, Feuston, and Bruckman 2014 Fiesler, C., J. Feuston, and A. S. Bruckman. 2014. I am not a lawyer: Copyright Q&A in online creative communities. In GROUP’14: Proceedings of the 18th International Conference on Supporting Group Work, 291–94. New York: ACM. [Google Scholar]). While the attitudes of lay people on the ethics of file sharing are probably influenced by their misunderstanding of copyright law and its underlying objectives (Mandel 2014 Mandel, G. N. 2014. The public perception of intellectual property. Florida Law Review 66:261–312. [Google Scholar]), it is less likely to be the case with the lawyers (Mandel 2017 Mandel, G. N. 2017. What is IP for? Experiments in lay and expert perceptions. St. John's Law Review 90 (3):659–79. [Google Scholar]). Also, lawyers are at the forefront of the change in social norms brought about by digitization.5 Further, lawyers have political influence and are likely to hold extreme views with respect to file sharing (Eisenhardt 1989 Eisenhardt, K. M. 1989. Building theories from case study research. Academy of Management Review 14 (4):532–50. doi: 10.5465/amr.1989.4308385.[Crossref], [Web of Science ®] , [Google Scholar]; Pettigrew 1990 Pettigrew, A. M. 1990. Longitudinal field research on change: Theory and practice. Organization Science 1 (3):267–92. doi: 10.1287/orsc.1.3.267.[Crossref], [Web of Science ®] , [Google Scholar]). Therefore, an analysis of the attitudes of international elite lawyers toward copyright infringement would provide us with a good window into the gaps between emerging socio-ethical attitudes and practices and legal norms (Posner 2009 Posner, E. A. 2009. Law and social norms. Cambridge, MA: Harvard University Press. [Google Scholar]). Understanding how lawyers deal with and make sense of the dissonance between their own attitudes on ethics of filing sharing and legal norms would offer unique insights into the emerging social understanding of fairness in file sharing, which could open up new thinking for legal reform. (Ellickson 1998 Ellickson, R. C. 1998. Law and economics discovers social norms. The Journal of Legal Studies 27 (S2):537–52. doi: 10.1086/468033.[Crossref] , [Google Scholar]; Hart 2012 Hart, H. L. A. 2012. The concept of law. Oxford: Oxford University Press.[Crossref] , [Google Scholar]; Jemielniak 2014b Jemielniak, D., ed. 2014b. The laws of the knowledge workplace: Changing roles and the meaning of work in knowledge-intensive environments. Furnham: Ashgate [Google Scholar]; Ullmann-Margalit 2015 Ullmann-Margalit, E. 2015. The emergence of norms. Oxford: Oxford University Press. [Google Scholar]). To that end, this article presents the findings of a study addressing the key question: How do lawyers perceive file sharing practices from the standpoint of ethics?
It is abundantly clear that the perceptions of fairness in copyright as well as practice are increasingly diverting from the letter of the law (Haber 2018 Haber, E. 2018. Criminal copyright. Cambridge: Cambridge University Press.[Crossref] , [Google Scholar]) and the views of the lawyers (Litman 1996 Litman, J. 1996. Revising copyright law for the information age. Oregon Law Review 75:19–48. [Google Scholar]; Samuelson and Glushko 1989 Samuelson, P., and R. J. Glushko. 1989. Comparing the views of lawyers and user interface designers on the software copyright "look and feel" lawsuits. Jurimetrics 30 (1):121–40. [Google Scholar]). This is especially true of people actively engaged in online content creation (Fiesler and Bruckman 2014 Fiesler, C., and A. S. Bruckman. 2014. Remixers' understandings of fair use online. In CSCW'14: Proceedings of the 17th ACM Conference on Computer Supported Cooperative Work & Social Computing, 1023–32. New York: ACM. [Google Scholar]), who also often engage in discussions about the ethical and legal aspects of copyright protection (Fiesler, Feuston, and Bruckman 2015 Fiesler, C., J. L. Feuston, and A. S. Bruckman. 2015. Understanding copyright law in online creative communities. In CSCW’15: Proceedings of the 18th ACM Conference on Computer Supported Cooperative Work & Social Computing, 116–29. New York: ACM. [Google Scholar]). In these discussions, the point of view of lawyers as a group is often referred to by nonprofessionals (Fiesler, Feuston, and Bruckman 2014 Fiesler, C., J. Feuston, and A. S. Bruckman. 2014. I am not a lawyer: Copyright Q&A in online creative communities. In GROUP’14: Proceedings of the 18th International Conference on Supporting Group Work, 291–94. New York: ACM. [Google Scholar]). Even though there is no systematic research of what lawyers think about copyright, their views on regulation are generally more conservative than the average (Luban 1988 Luban, D. 1988. Lawyers and justice: An ethical study. Princeton, NJ: Princeton University Press. [Google Scholar]; Rotunda 2011 Rotunda, R. D. 2011. Why lawyers are different and why we are the same: Creating structural incentives in large law firms to promote ethical behavior-in-house ethics counsel, bill padding, and in-house ethics training. Akron Law Review 44 (3):679–726. [Google Scholar]; Tyler and Darley 1999 Tyler, T. R., and J. M. Darley. 1999. Building a law-abiding society: Taking public views about morality and the legitimacy of legal authorities into account when formulating substantive law. Hofstra Law Review 28 (3):707–39. [Google Scholar]). One of the reasons for this phenomenon is that the lawyers have highly regulated codes of ethics, requiring it to follow the letter of law in its daily conduct and to be generally law-abiding (Simon 2009 Simon, W. H. 2009. The practice of justice: A theory of lawyers' ethics. Cambridge, MA: Harvard University Press. [Google Scholar]; Zacharias 2007 Zacharias, F. C. 2007. The preemployment ethical role of lawyers: Are lawyers really fiduciaries. William & Mary Law Review 49 (2):569–641. [Google Scholar]). In fact, for lawyers, breaking the law can lead to social exclusion and disbarment (Ogando 1991 Ogando, J. C. 1991. Sanctioning unfit lawyers: The need for public protection. Georgetown Journal of Legal Ethics 5 (2):459–84. [Google Scholar]; Shaffer and Shaffer 1991 Shaffer, T. L., and M. M. Shaffer. 1991. American lawyers and their communities: Ethics in the legal profession. Notre Dame, IN: University of Notre Dame Press. [Google Scholar]). From a cross-cultural perspective, lawyers have also been found to be more conservative in their views on regulation (Abel and Lewis 1988 Abel, R. L., and P. Lewis, eds. 1988. Lawyers in cross-cultural perspective. Berkeley, CA: University of California Press. [Google Scholar]). We therefore hypothesize that part of the reason why copyright protection has proven so difficult to reform, even in the face of growing popular support, is because legal practitioners themselves adopt relatively conservative positions with respect to the existing legal regime:
H1: Lawyers typically take conservative ethical positions on the issue of online copyright infringement.
Further, there is a widely shared assumption among judges, lawyers, and other legal professionals that public sector lawyers should be held to especially high ethical standards, precisely because they represent the public interest (Berenson 1999 Berenson, S. K. 1999. Public lawyers, private values: Can, should, and will government lawyers serve the public interest. Boston College Law Review 41 (4):789–846. [Google Scholar]). In fact, these lawyers have a duty to acknowledge the public interest in their views on regulation (Dodek 2010 Dodek, A. M. 2010. Lawyering at the intersection of public law and legal ethics: Government lawyers and custodians of the rule of law. Dalhousie Law Journal 33 (1):1–53. [Google Scholar]). It is therefore likely that lawyers who orient themselves toward the public sector, or, alternatively, are socialized within the public sector will take a more progressive stance on copyright than their private counterparts.
This line of reasoning resonates strongly with the attraction-selection-attrition framework in management (Schneider, Goldstiein, and Smith 1995 Schneider, B., H. W. Goldstiein, and D. B. Smith. 1995. The ASA framework: An update. Personnel Psychology 48 (4):747–73. doi: 10.1111/j.1744-6570.1995.tb01780.x.[Crossref], [Web of Science ®] , [Google Scholar]), which postulates that individuals join and leave organizations based on a match on enduring characteristics, such as preferences and values. Applied to the management of public organizations, this framework has yielded the concept of “public service motivation” (PSM). PSM has been defined by Rainey and Steinbauer (1999 Rainey, H. G., and P. Steinbauer. 1999. Galloping elephants: Developing elements of a theory of effective government organizations. Journal of Public Administration Research and Theory 9 (1):1–32. doi: 10.1093/oxfordjournals.jpart.a024401.[Crossref] , [Google Scholar]) as a “general altruistic motivation to serve the interests of a community of people, a state, a nation or humanity,” and by Vandenabeele (2007 Vandenabeele, W. 2007. Toward a public administration theory of public service motivation: An institutional approach. Public Management Review 9 (4):545–56. doi: 10.1080/14719030701726697.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]) as “the belief, values and attitudes that go beyond self-interest and organizational interest, that concern the interest of a larger political entity and that motivate individuals to act accordingly whenever appropriate.” It follows from this conceptual framework that “the greater an individual’s PSM, the more likely the individual will seek membership in a public organization” (Perry and Wise 1990 Perry, J. L., and L. R. Wise. 1990. The motivational bases of public service. Public Administration Review 50 (3):367–73. doi: 10.2307/976618.[Crossref], [Web of Science ®] , [Google Scholar]). Similarly in economics, Besley and Ghatak (2005 Besley, T., and M. Ghatak. 2005. Competition and incentives with motivated agents. American Economic Review 95 (3):616–36. doi: 10.1257/0002828054201413.[Crossref], [Web of Science ®] , [Google Scholar]) and Auriol and Brilon (2014 Auriol, E., and S. Brilon. 2014. Anti-social behavior in profit and nonprofit organizations. Journal of Public Economics 117:149–61. doi: 10.1016/j.jpubeco.2014.05.006.[Crossref], [Web of Science ®] , [Google Scholar]) stress the difference between “profit-driven” and “mission-driven” organizations. The latter attract mission-oriented individuals who readily give-up high-powered monetary incentives schemes to improve the match between their own goals and values and that of the organization for which they work. In the remainder of the article, we loosely use the terms “public” and “private” sectors not to recoup the legal definition of the term, but to capture this important distinction between “profit-driven” and “mission-driven” organizations.6
As explained above, at the very core of the concept of copyright lies a clear-cut contradiction between private interests (of the right holders) and public interests (of society at large), which requires both balancing and mediating (Joyce et al. 2016 Joyce, C., T. T. Ochoa, M. W. Carroll, M. A. Leaffer, and P. Jaszi. 2016. Copyright law. Durham, NC: Carolina Academic Press. [Google Scholar]; Klein, Moss, and Edwards 2015 Klein, B., G. Moss, and L. Edwards. 2015. Understanding copyright: Intellectual property in the digital age. Thousand Oaks, CA: Sage.[Crossref] , [Google Scholar]). It is therefore likely that lawyers’ ethical stance on copyright infringement—precisely because it is both highly loaded and polarized—has the potential to capture respondents’ “public service ethos” and should predict their career choices. One advantage of our data in this respect is that not only can we test whether ethical attitudes correlate with respondents’ sector of occupation, we can also say something about whether this occurs as a result of selection (i.e., pro-sharing individuals orient themselves toward the public sector) as opposed to learning (i.e., individuals develop pro-sharing attitudes as a result of their exposure to public sector work)—a significant challenge in the existing literature (Wright 2008 Wright, B. E. 2008. Methodological challenges associated with public service motivation research. In Motivation in public management: The call of public service. eds. J. L. Perry and A. Hondeghem, 80–98. Oxford: Oxford University Press. [Google Scholar]; Wright and Christensen 2010 Wright, B. E., and R. K. Christensen. 2010. Public service motivation: A test of the job attraction-selection-attrition model. International Public Management Journal 13 (2):155–76. doi: 10.1080/10967491003752012.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]). We therefore hypothesize that lawyers who orient themselves toward the public sector should differ with respect to how much they lean more on the side of broad disclosure, social sharing and the ethical acceptability of copyright infringement:
H2: Lawyers who engage in public sector practice take relatively less conservative ethical positions on the issue of online copyright infringement.
Finally, legal ethics is also under the influence of local socio-economic standards and practices (Parker and Evans 2018 Parker, C., and A. Evans. 2018. Inside lawyers' ethics. Cambridge: Cambridge University Press.[Crossref] , [Google Scholar]). Attitudes toward file sharing have been argued to be significantly influenced both by culture (Sang et al. 2015 Sang, Y., J.-K. Lee, Y. Kim, and H.-J. Woo. 2015. Understanding the intentions behind illegal downloading: A comparative study of American and Korean college students. Telematics and Informatics 32 (2):333–43. doi: 10.1016/j.tele.2014.09.007.[Crossref], [Web of Science ®] , [Google Scholar]) and income levels (Karaganis 2011 Karaganis, J. ed. 2011. Media piracy in emerging economies. New York: Social Science Research Council. [Google Scholar]). According to those early studies, it is possible that lawyers who differ with respect to their culture and/or the level of economic development of their home country will also differ in terms of their attitudes toward copyright infringement. Given the exploratory nature of this conjecture, we loosely formulate our third hypothesis:
H3: Non-Western lawyers and/or lawyers coming from developing countries take different ethical positions on the issue of online copyright infringement.
We see this last hypothesis as expanding a descriptive line of work on individuals’ perceptions of copyright law started by Mandel (2014 Mandel, G. N. 2014. The public perception of intellectual property. Florida Law Review 66:261–312. [Google Scholar]), who argues that regardless of IP law’s policy objectives, how people understand the law is crucial to the success of the IP system. This is true both for creators who obtain IP rights and IP consumers who may be regulated by those rights (Mandel 2017 Mandel, G. N. 2017. What is IP for? Experiments in lay and expert perceptions. St. John's Law Review 90 (3):659–79. [Google Scholar]).
Following this reasoning, Mandel (2014 Mandel, G. N. 2014. The public perception of intellectual property. Florida Law Review 66:261–312. [Google Scholar]) leverages a representative sample of the US population to explore laymen’s intuitive understanding of copyright, also as a function of income, age, education, political ideology, and gender. The present article extends this approach to a sample of top international legal practitioners.7
One of the authors took advantage of a visiting position at Harvard University from August 2015 to September 2016 to develop informal links with the Harvard LL.M. (Legum Magister, a master’s degree in law) students from two consecutive cohorts. He did not teach any courses related to copyright or copyright law, or any courses taken by LL.M. students. He started the project by dedicating a whole semester to blending in informally: participating in the discussions of the closed Harvard LL.M. students’ Facebook group, attending private parties in dorms by invitation from the group members, giving advice on living as a foreigner in Cambridge, organizing a running club, and, in one case, helping a student with furniture assembly. He followed a strategy of entering the field, that is, typical for ethnography (Agar 1980 Agar, M. 1980. The professional stranger: An informal introduction to ethnography. New York: Academic Press. [Google Scholar]; Clifford and Marcus 1986 Clifford, J., and G. E. Marcus, eds.1986. Writing culture: the poetics and politics of ethnography. Berkeley, CA: University of California Press. [Google Scholar]), with some elements of digital ethnography (Jemielniak 2014a Jemielniak, D. 2014a. Common knowledge? An ethnography of wikipedia. Stanford, CA: Stanford University Press.[Crossref] , [Google Scholar]), focusing on gaining access and developing a social network (Feldman, Bell, and Berger 2003 Feldman, M. S., J. Bell, and M. T. Berger. 2003. Gaining access: A practical and theoretical guide for qualitative researchers. New York: AltaMira Press. [Google Scholar]). As a result, he was perceived as a valuable external member of the group, even though he clearly communicated the fact that he was not a student, but a visiting research fellow.
Social connections and acceptance as a useful contributor to the group proved priceless when he reached out to all students participating in the Facebook group in the spring and fall of 2016 for interviews directed at exploring their ethical perceptions of digital files sharing practices. The response was very positive and nearly all contacted students agreed to participate. But then, logistics of in-person data collection—time constraints and scheduling problems both on the side of the students and the author—reduced the overall number of filled in survey questionnaires.
About 200 students enroll in the Harvard LL.M. program each year, out of which 50 and 59 were interviewed in the spring and fall, respectively, through one-to-one meetings.8 All data were collected in one-on-one meetings in the vicinity of the Harvard campus, in a consistent setting. This approach was chosen to ensure that the respondents were limited to LL.M. students, and also to increase the level of engagement with the study (online questionnaires are notorious for obtaining negligent and un-reflexive responses). All 109 respondents were first reminded of the purpose of the research, given all relevant details regarding the measures taken to ensure their anonymity and privacy, and provided informed consent forms. They then filled a questionnaire presented in an anonymous window on the researcher’s computer.
The survey consisted of 3 sections. The first section elicited respondents’ age, gender, region of origin9, and current or envisioned occupation (for those who had no work experience). The last item was used to determine respondents’ (envisioned) sector of professional practice (public or private):
Works in following places were classified as public sector work: local governments, judiciary, NGOs (non-governmental organizations), international agencies, international intergovernmental organizations, and academia.
Work in law firms and corporations and also work as independent attorney/barrister was classified as private sector work.
The second section listed 17 specific copyright infringement scenarios, designed so as to distinguish between the many possible real-world motivations for infringing IP (see Appendix A for the full list of questions.) Respondents had to rate the ethical acceptability of each infringement scenario on a Likert scale ranging from “very unacceptable” to “very acceptable.” As a first approximation, the first step of our analysis does not distinguish between those various scenarios and motivations, and takes the average of respondents’ ratings over all 17 cases as the dependent variable of interest. In a second step, we disaggregate respondents’ answers and group the relevant scenarios in 5 infringement categories (see Appendix B for the list of questions falling under each category):
Infringement of copyright with a commercial purpose.
Infringement of copyright because of lack of legal access to the material.
Infringement of copyright because legal access to the material was not affordable.
Infringement of copyright to avoid payment.
Infringement of copyright for educational purposes.
It is important to note that the subjects were not primed to think about ethics through any particular philosophical angle, be it deontological (i.e., rights or duty-based), consequential (i.e., outcome-based) or virtue based (i.e., based on desirable characteristics of the agent performing the action).10 We did not do such priming to avoid framing/demand effects (Zizzo 2010 Zizzo, D. J. 2010. Experimenter demand effects in economic experiments. Experimental Economics 13 (1):75–98. doi: 10.1007/s10683-009-9230-z.[Crossref], [Web of Science ®] , [Google Scholar]) and invite respondents’ intuitive ethical judgment.11
It is also important to note that this design rests on the assumption that respondents do not distinguish between different types of creative works when it comes to assessing the ethical acceptability of copyright infringement. It is consistent with the idea that all copyrightable works share important features. This should especially hold in our population of lawyers because in law all copyrightable works, irrespective of the medium, fall under a common legal regime. As this assumption is important to our design (i.e., we aggregate our survey questions according to the justification provided for infringing copyright, not the type of work considered), we put it to test, as described in Appendix D.
Finally, the third section of the survey relied on Likert scales to elicit potentially relevant control variables:
Respondents’ personal values (Redding and Reppucci 1999 Redding, R. E., and B. D. Reppucci. 1999. Effects of lawyers' socio-political attitudes on their judgments of social science in legal decision making. Law and Human Behavior 23 (1):31–54. doi: 10.1023/A:1022322706533.[Crossref], [Web of Science ®] , [Google Scholar]): (i) left or rightwing in economic matters (e.g., state interventions, health care, education, pension system), (ii) left or rightwing in social matters (e.g., abortion, legalization of drugs, LGBTQ rights, gender roles), and (iii) level of religiosity.
Respondents’ computer knowhow and expertise in copyright law.
The third section of the questionnaire was added to the second data collection batch, so that we only collected the corresponding variables for 59 respondents.
The relevant criterion for ethical acceptability: No commercial purpose
One of the main legal challenges associated with file sharing practices is the law doesn’t distinguish that—with the important exception of the “fair use” doctrine—between the varieties of circumstances in which copyright infringement occurs. Table 1 presents some summary statistics on lawyers’ ratings of the overall acceptability of our 5 copyright infringement categories. We get a clear-cut picture: file sharing ranks relatively high in terms of ethical acceptability, irrespective of the stated reason for engaging in copyright infringement (on average 3.23 out of a 5 points scale, with a standard deviation (SD) of 0.80). The only notable exception is infringement of copyright with a commercial purpose, which ranks significantly lower in terms of acceptability (1.76 out of 5), with the difference being statistically significant at the 1% level with each and every other infringement category.12
Table 1. Descriptive statistics.
In contrast, the categories “infringe copyright because no legal access,” “infringe copyright because cannot afford” and “infringe copyright for educational purposes” do not significantly differ from one another, be it practically or statistically. It is interesting to note that this finding suggests that our respondents did not judge the ethical acceptability of the presented scenarios according to the degree to which they fit the American “fair use” doctrine (or its equivalent in other countries), that is, according to which the presented scenarios are a more or less clear-cut instances of copyright infringement. Had this been the case, the category “infringe copyright because cannot afford” should have ranked significantly lower in terms of ethical acceptability.13
Finally, while the category “infringe copyright to avoid payment” ranks lower than the above three categories by about 0.5 point out of a 5 points scale (statistically significant at the 1% level), this difference is strikingly low (less than half a SD on average) given the nature of the infringement scenario considered. It therefore appears that lawyers perceive file sharing practices as generally ethically acceptable—as long as individuals do not derive monetary benefits from them.
Not only is it surprising that lawyers’ ethical attitudes vis-à-vis copyright infringement is in line with that of students and laypeople, we find it striking that the relevant criterion they identify for ethical acceptability—no commercial purpose—is consistent with that of piracy communities (Shore et al. 2001 Shore, B., A. Venkatachalam, E. Solorzano, J. M. Burn, S. Z. Hassan, and L. J. Janczewski. 2001. Softlifting and piracy: Behavior across cultures. Technology in Society 23 (4):563–81. doi: 10.1016/S0160-791X(01)00037-9.[Crossref] , [Google Scholar]), where there was strong early evidence that charging for access elicited negative ethical judgments: “The adherence to a nonprofit mindset allowed pirates to portray themselves as non-criminals and, thus, morally acceptable. Those who made money were not, however, acceptable participants in the piracy subculture” (Holt and Copes 2010 Holt, T. J., and H. Copes. 2010. Transferring subcultural knowledge on-line: Practices and beliefs of persistent digital pirates. Deviant Behavior 31 (7):625–54. doi: 10.1080/01639620903231548.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar], 641). Similarly, “an act of file sharing may be classified into one of two broad categories: the activity of professionals who seek profit through copyright infringement or the selfless behavior of activists willing to make culture available to the community. The former will tend to evoke negative affect and ethical judgments, while the latter will typically be evaluated positively and induce feelings of gratitude. The key distinction between these two types is whether the individuals involved in piracy derive any direct material benefit from it” (Krawczyk et al. 2017 Krawczyk, M., J. Tyrowicz, A. Kukla-Gryz, and W. Hardy. 2017. Do pirates play fair? Testing copyright awareness of sports viewers. Behaviour & Information Technology 36 (6):650–61. doi: 10.1080/0144929X.2016.1272635.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar], 652).
A clash of cultures? How ethical attitudes determine the selection of lawyers into private versus public sector practice
Our most striking finding is the significant divide in attitudes on ethics of file sharing that appears between lawyers who operate in the “public” and “private” sectors.14 Figure 1 presents the distribution of lawyers’ attitudes toward copyright infringement on average—distinguishing between those who work (or intend to work) in the public sector and those who work (or intend to work) in the private sector. We see that the distribution of lawyers’ average attitudes toward copyright infringement differs significantly between the two groups. Public sector lawyers consider file sharing to be more acceptable than private sector ones (diff = 0.35; p = 0.02; N = 100). Consistent with the above finding that lawyers overwhelmingly reject file sharing as ethically unacceptable if it is done with a commercial purpose, this difference in attitudes between public and private sector lawyers vanishes when one focuses on the acceptability of for profit copyright infringement (diff = –0.06; p = 0.97; N = 109).
Importantly, the data suggests that this difference in overall attitudes is mainly due to selection as opposed to learning. This means that lawyers with stronger preexisting pro-sharing attitudes tend to orient themselves toward the public sector—as opposed to developing those attitudes as a result of their exposure to public sector practice. This can be seen by focusing the analysis on the youngest students in our sample, that is, those who were less than 27 years old at the time of the study. These students are very unlikely to have had significant work experience prior to their Harvard LLM studies, be it in the public or in the private sector. Since preferences typically take years to evolve (Carlsson, Johansson-Stenman, and Nam 2014 Carlsson, F., O. Johansson-Stenman, and P. K. Nam. 2014. Social preferences are stable over long periods of time. Journal of Public Economics 117:104–14. doi: 10.1016/j.jpubeco.2014.05.009.[Crossref], [Web of Science ®] , [Google Scholar]), finding a significant difference in attitudes on ethics of file sharing for young lawyers who only intend to work for “mission oriented” organizations constitutes evidence of value-based work selection.
We see that the observed difference in overall attitudes toward copyright infringement does replicate in this restricted sample (diff = 0.60; p = 0.04; N = 37). Since Harvard lawyers typically do not choose to work in the public sector because of other more lucrative alternatives (Weisbrod 1983 Weisbrod, B. A. 1983. Nonprofit and proprietary sector behavior: Wage differentials among lawyers. Journal of Labor Economics 1 (3):246–63. doi: 10.1086/298012.[Crossref], [Web of Science ®] , [Google Scholar]), we interpret this finding that the public sector oriented lawyers lean on the side of broad disclosure and social sharing as reflecting of a public goods oriented ethos (Loughlin and Tschorne 2016 Loughlin, M., and S. Tschorne. 2016. Public law. London-New York: Routledge. [Google Scholar]). This, in turn, incentivizes them to engage in public sector practice.
Finally, we confirm our results by exploring the factors that drive the ethical acceptability of file sharing practices in a regression framework. Table 2 presents OLS estimates of the effect of our individual level variables on the ethical acceptability of copyright infringement, averaging the answers over the 17 scenarios that were presented to respondents. The overall fit of the model is relatively good, with an adjusted R2 ranging from 0.07 in column (1) to 0.23 in column (3). We disaggregate our dependent variable according to the categories presented in Table 1 in Appendix B, without any major impact on our conclusions.
Table 2. Ethical acceptability of file sharing—average over all scenarios.
The fact that our respondents come from many different parts of the world (column (1) of Table 2)—a unique feature of our data—enables us to test for the impact of their region of origin on attitudes on ethics of file sharing.15 Surprisingly, we find that the region of origin does not influence evaluations of ethical acceptability of file sharing, despite the fact that it is found to be an important factor in studies on piracy, albeit not focused on lawyers (Bender and Wang 2009 Bender, M. T., and Y. Wang. 2009. The impact of digital piracy on music sales: A cross-country analysis. International Social Science Review 84 (3-4):157–70. [Google Scholar]; Rybina 2011 Rybina, L. 2011. Music piracy in transitional post-Soviet economies: Ethics, legislation, and expertise. Eurasian Business Review 1 (1):3–17. doi: 10.14208/bf03353795.[Crossref] , [Google Scholar]). While interesting, this finding should certainly not be taken as the final word on this issue. First, the measure of geographic location that we could derive from our data was relatively coarse: we did not ask for the country of origin to protect anonymity of the respondents (some countries have only one representative in the LL.M. program in a given year). Second, our population of lawyers was, by definition, a highly internationalized and relatively affluent one, so that their views might not adequately reflect the socio-economic condition of the populations in their respective countries.
In the same vein, column (2) replaces our 7 regional dummies with a single dummy variable indicating whether the respondent comes from an economically developed region.16 Here again, we observe that respondents who come from economically developing regions do not differ in terms of how much they think copyright infringement is acceptable.
In column (3), we add some control variables indicating whether the respondent identifies himself as rightwing in economic matters, rightwing in social matters, religious, or technically knowledgeable about computers and technology.17 Lawyers who self-identify as “leftists” in social matters are a lot more flexible in terms of copyright infringements, with each point increase in the leftwing social orientation scale (out of 5) being associated with half a SD increase in acceptability. 18
Finally, column (4) controls for respondents’ self-reported level of expertise in copyright law. There is a great deal of variation along this dimension within our sample.19 Perhaps surprisingly, we find that a higher level of expertise in copyright law is associated with a significant increase in the ethical acceptability of file sharing—a result consistent with that of Mandel (2014 Mandel, G. N. 2014. The public perception of intellectual property. Florida Law Review 66:261–312. [Google Scholar]), who leverages a broader sample of 1700 U.S. adults and finds that individuals who report having more experience with copyright law (e.g., working as an attorney, paralegal, creator of copyrighted work) tend to desire weaker copyright protection.20
As we have seen from Table 1, the ethical acceptability of file sharing is relatively high on average within our population. Even then, looking across all four columns in Table 2, our regression analysis confirms that lawyers who work (or intend to work) in the public sector consider file sharing to be significantly more acceptable—roughly amounting to half a SD increase in overall acceptability across all specifications. Interestingly, we see that gender plays no role in driving respondents’ ethical assessment of copyright infringement practices. The same goes for age, as the associated coefficient loses statistical significance and drops to a value close to zero when more control variables are included in the model (see columns (3) and (4)).
We end this section with a brief discussion of Tables C1–C5, where we disaggregate our main dependent variable from Table 2 according to the categories presented in Table 1: (i) “infringe copyright with a commercial purpose,” (ii) “infringe copyright because no legal access,” (iii) “infringe copyright because cannot afford,” (iv) “infringe copyright to avoid payment,” and (v) “infringe copyright for educational purposes.” Disaggregating our dependent variable in such a way does not significantly alter our empirical conclusions, so we do not report these tables in the main text. A few additional insights are nonetheless worth considering:
Consistent with our results presented in Table 2, respondents’ region of origin never impacts their assessment of the ethical acceptability of file sharing, except when it is done with a commercial purpose. In this case respondents from economically developed countries consider file sharing to be significantly more acceptable than respondents from developing ones, which makes for a counterintuitive result (see columns (2) and (3) from Table B1).
The difference in ethical attitudes between practitioners from the public and the private sector vanishes in two instances: (i) when copyright is infringed with a commercial purpose, in which case acceptability is relatively low in both groups (Table B1), and (ii) when copyright is infringed because there is no legal alternative available, in which case acceptability is relatively high in both groups (Table B2).
Compared with the estimates reported in Table 2, the magnitude of the difference in attitudes on ethics of file sharing between public and private lawyers increases when copyright is infringed specifically (i) to avoid payment (Table B3), (ii) for educational purposes (Table B5), and most strongly (iii) because one cannot afford to pay, where operating in the public sector is associated with a one SD increase in the assessed ethical acceptability of the practice (Table B4).
Summary of results
Because of its social function, legal practice is often viewed as a relatively conservative occupation (Freidson 2001 Freidson, E. 2001. Professionalism: The third logic. Chicago, IL: University of Chicago Press. [Google Scholar]; Jemielniak 2005 Jemielniak, D. 2005. Kultura: Zawody i profesje. Prace i Materialy Instytutu Studiów Miedzynarodowych SGH 32:7–22. [Google Scholar]). Therefore, we expected lawyers to take highly conservative ethical positions on the issue of online copyright infringement (H1). This hypothesis is strongly rejected by our data. We find that digital file sharing ranks relatively high in terms of ethical acceptability among our population of lawyers—with the only notable exception being infringing copyright with a commercial purpose. Moving away from the previous focus on laymen and undergraduate students, it therefore appears that the lawyers themselves perceive file sharing practices as ethically acceptable, as long as individuals do not derive monetary benefits from them. Those relatively liberal views are unlikely to be affected by income effects, as may be the case in many previous research settings (Rob and Waldfogel 2006 Rob, R., and J. Waldfogel. 2006. Piracy on the high C’s: Music downloading, sales displacement, and social welfare in a sample of college students. The Journal of Law and Economics 49 (1):29–62. doi: 10.1086/430809.[Crossref], [Web of Science ®] , [Google Scholar]; Smallridge and Roberts 2013 Smallridge, J. L., and J. R. Roberts. 2013. Crime specific neutralizations: An empirical examination of four types of digital piracy. International Journal of Cyber Criminology 7 (2):125–40. [Google Scholar]). As a matter of fact, most lawyers in our sample are in the top echelons of income in their home countries (Wilkins, Fong, and Dinovitzer 2015 Wilkins, D. B., B. Fong, and R. Dinovitzer. 2015. The women and men of Harvard law school: Preliminary results from the HLS career study (preliminary report). Cambridge, MA: Harvard Law School Center on the Legal Profession Research.
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Attitudes toward file sharing have also been argued to be significantly influenced by culture (Sang et al. 2015 Sang, Y., J.-K. Lee, Y. Kim, and H.-J. Woo. 2015. Understanding the intentions behind illegal downloading: A comparative study of American and Korean college students. Telematics and Informatics 32 (2):333–43. doi: 10.1016/j.tele.2014.09.007.[Crossref], [Web of Science ®] , [Google Scholar]) and income levels (Karaganis 2011 Karaganis, J. ed. 2011. Media piracy in emerging economies. New York: Social Science Research Council. [Google Scholar]). As a result, we expected non-Western lawyers and/or lawyers coming from developing countries to take different ethical positions on the issue of online copyright infringement (H3)—although given the exploratory nature of this test, we did not have a clear prediction as to the direction of the effect. This hypothesis is also not supported by our data. Instead, we find that lawyers’ region of origin (defined both geographically and in terms of level of economic development) has no consistent impact on their ethical views vis-à-vis file sharing. One obvious limitation of our study design in this respect is that most of the lawyers in our sample come from highly privileged socio-economic environments, so that their views might not accurately reflect those of the populations in their respective countries. At the very least, our results call for a more systematic investigation of the geographical distribution of attitudes toward copyright protection.
The only hypothesis which was strongly supported by our data was H2. To be sure, the current ideological struggle over the reform of copyright is largely the reflection of the highly loaded and polarized question of how to strike an efficient balance between the contradicting goals of incentivizing creative works on the one hand, and letting society benefit from their wide diffusion while preserving user privacy (Bakioǧlu 2016 Bakioǧlu, B. S. 2016. The gray zone: Networks of piracy, control, and resistance. The Information Society 32 (1):40–50. doi: 10.1080/01972243.2015.1107164.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]) on the other. This polarization is likely to embed itself in the organizational cultures of “profit-driven” and “mission-driven” organizations, respectively (Besley and Ghatak 2005 Besley, T., and M. Ghatak. 2005. Competition and incentives with motivated agents. American Economic Review 95 (3):616–36. doi: 10.1257/0002828054201413.[Crossref], [Web of Science ®] , [Google Scholar]). As a result, we hypothesized that lawyers who work (or intend to work) for the latter (which we loosely refer to as the “public sector”) would be significantly more tolerant of online copyright infringement. Beyond providing unambiguous support for this hypothesis, our data also suggests that this phenomenon is largely the result of self-selection: young lawyers who lean more on the side of broad disclosure and social sharing tend to orient themselves toward the public sector, while the reverse holds for those who are more defensive of copyright. Such an attitudinal divide might further hinder copyright reform in the face of increasing economic and social evidence of its inadequacy.
Three limitations of our research protocol need to be kept in mind while interpreting our results. The first one relates to our research sample. While our focus on Harvard LL.M. students provides a unique opportunity to study the ethical attitudes of a top-notch sample of (otherwise geographically dispersed) legal practitioners in a consistent way, only 37% of our respondents rated their expertise in copyright law as greater of equal to 3, out of a 5 points scale. Therefore, while our all of our respondents can be described as highly qualified lawyers, not all of them are copyright experts. Note, however, that our results hold when we control for expertise in copyright law in our regressions. Together with the fact that expertise in copyright law is actually associated with more favorable ethical assessments of file sharing practices, this suggests that our results are not driven by a lack of expertise in copyright law.
The second limitation relates to our finding that respondents’ region or origin and its associated level of economic development do not seem to influence their ethical perceptions of copyright infringement. Given the coarse nature of our geographical measures, this result should be considered as a first step toward a more conclusive test of our hypothesis, which would warrant some additional research efforts.
Third, the explicit focus of this article is on the factors that affect respondents’ perceptions of the ethical acceptability of file sharing on the “demand side” (i.e., their demographics, or the intended use of the good). As a result, our design largely abstracts from the “supply side” of the ethics equation. For instance, no scenario presented to subjects provided details on whether and how the content creator relied on sales to sustain his activity. Our results are therefore best thought of as “maintaining the supply side of the equation fixed.” In this respect, we assume that, all else equal, the more content creators depend on sales to sustain their activity, the more infringing their copyright rights will be considered unethical by respondents (provided that this fact is made salient to them).
Almost a decade after the Sony BMG Entertainment vs. Tenenbaum case in which student Joel Tenenbaum was judged liable for $67,500 in damages for downloading 30 songs via peer-to-peer networks—and following a significant restructuration of the creative works industry—evidence has accumulated that digital file sharing practices do not significantly displace revenue from copyright holders. Also, research has shown that younger generations as well as the general population increasingly consider file sharing practices as socially and ethically acceptable. Yet, the legal regime governing copyright protection has not seen any major evolution over the same period.
Given the prominent position that lawyers hold in politics and policy making (Manning 2017 Manning, J. E. 2017. Membership of the 115th congress: A profile.
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On a more general level, the fact that even the international elite lawyers perceive digital file sharing as generally acceptable signals that policies are increasingly misaligned with social practices. In this respect, it is striking that lawyers in our sample overwhelmingly used a non-commercial-purpose criterion to determine whether a file sharing practice was ethical. The same criterion had been put forward by the earliest proponents of the reform of copyright, such as the Pirate Party, to define the legal boundaries of a sphere of “non-market exchange” that would not be subject to copyright (Aigrain 2012 Aigrain, P. 2012. Sharing: Culture and the economy in the internet age. Amsterdam: Amsterdam University Press.[Crossref] , [Google Scholar]). When lawyers and pirates concur in terms of their ethical assessment of file sharing practices, the legal status quo appears to be more of a tool for advancing informational capitalism (Zukerfeld 2017 Zukerfeld, M. 2017. The tale of the snake and the elephant: Intellectual property expansion under informational capitalism. The Information Society 33 (5):243–60. doi: 10.1080/01972243.2017.1354107.[Taylor & Francis Online], [Web of Science ®] , [Google Scholar]) than reflecting everyday practices of common sense and fairness perception. These findings support the calls for further de-criminalization of copyright legislation (Haber 2018 Haber, E. 2018. Criminal copyright. Cambridge: Cambridge University Press.[Crossref] , [Google Scholar]).
Appendix A. Copyright infringement scenarios presented to respondents
• Do you have any friends who download TV shows from the Internet? (yes, no, other: explain)
The following 17 questionnaire items present hypothetical scenarios describing common copyright infringement situations. Respondents were asked to rate the described behaviors in terms of ethical acceptability on a 1 to 5 Likert scale (1 “very acceptable” to 5 “very unacceptable”). We used the average of their ratings as our main dependent variable.
1. X frequently downloads TV shows from the Internet through torrents. X could not have legal access to them (they are not available on the cable, nor through legal streaming).
2. X frequently watches TV shows on the Internet on unauthorized websites. X could not have legal access to them (they are not available on the cable, nor through legal streaming).
3. X frequently watches TV shows on the Internet on unauthorized websites. X could have legal access to them, but X would have to pay for streaming.
4. X frequently watches TV shows on the Internet on unauthorized websites. X does have legal access to them on the cable, but X would have to wait several weeks until the shows are released in the country.
5. X frequently downloads TV shows from the Internet (torrents). X could have legal access to them, but X would have to pay for streaming.
6. X frequently downloads TV shows from the Internet (torrents). X does have legal access to them on the cable, but X would have to wait several weeks until the shows are released in the country.
7. X frequently downloads current movie premieres from the Internet (torrents). X does not watch these movies later in the cinema.
8. X frequently downloads current movie premieres from the Internet (torrents). X still regularly watches these movies later in the cinema.
9. X frequently downloads music from the Internet (torrents). X could have legal access to it, but X would have to pay.
10. X frequently downloads cracked software from the Internet (torrents). X uses it only for private purposes and cannot afford a license.
11. X frequently downloads cracked software from the Internet (torrents). X uses it for commercial purposes but does not pay to save money.
12. X frequently downloads music from the Internet (torrents), but only the songs/albums X already has bought on CDs.
13. X frequently downloads fiction ebooks from the Internet to avoid payment.
14. X frequently downloads academic books from the Internet to avoid payment.
15. X frequently listens to music on YouTube and blocks all ads on the website.
16. X frequently reads newspapers online for free, and occasionally clicks ads on the websites (publishers use ad revenue to make content available).
17. X frequently reads newspapers online and blocks all ads on the websites.
The last two questionnaire items related to the file sharing behavior of the infringing person. We do not use these data in the analysis presented in this article.
18. X has bought a large collection of original DVDs and CDs. X made digital copies of them and frequently offers duplicates to friends.
19. X has a large collection of movies, TV shows, and music downloaded without paying. X frequently offers duplicates to friends.
Appendix B. Construction of the copyright infringement categories in Table 1
Infringement of copyright with a commercial purpose. Average rating for the following questionnaire item:
X frequently downloads cracked software from the Internet (torrents). X uses it for commercial purposes but does not pay to save money.
Infringement of copyright because of lack of legal access to the material. Average rating for the following questionnaire items:
X frequently downloads TV shows from the Internet through torrents. X could not have legal access to them (they are not available on the cable, nor through legal streaming).
X frequently watches TV shows on the Internet on unauthorized websites. X could not have legal access to them (they are not available on the cable, nor through legal streaming).
Infringement of copyright because legal access to the material was not affordable. Average rating for the following questionnaire items:
X frequently downloads cracked software from the Internet (torrents). X uses it only for private purposes and cannot afford a license.
Infringement of copyright to avoid payment. Average rating for the following questionnaire items:
X frequently watches TV shows on the Internet on unauthorized websites. X could have legal access to them, but X would have to pay for streaming.
X frequently downloads TV shows from the Internet (torrents). X could have legal access to them, but X would have to pay for streaming.
X frequently downloads current movie premieres from the Internet (torrents). X does not watch these movies later in the cinema.
X frequently downloads music from the Internet (torrents). X could have legal access to it, but X would have to pay.
X frequently downloads fiction ebooks from the Internet to avoid payment.
Infringement of copyright for educational purposes. Average rating for the following questionnaire item:
X frequently downloads academic books from the Internet to avoid payment.
Appendix C. Regression results by copyright infringement categories in Table 1
Table C1. Ethical acceptability of file sharing—for profit.
Table C2. Ethical acceptability of file sharing—no legal access.
Table C3. Ethical acceptability of file sharing—cannot afford.
Table C4. Ethical acceptability of file sharing—avoid payment.
Table C5. Ethical acceptability of file sharing—educational purpose.
Appendix D. Do ethics of file sharing depend on the type of digital file shared?
The main body of the article focuses on understanding lawyers’ attitudes on ethics of file sharing as per the rationale presented for infringement of copyright (i.e., the demand side) and leaving aside the potential impact of infringement on the dynamics of content creation (i.e., the supply side). While conducting this exercise, we assume that, when it comes to the ethical acceptability of copyright infringement, respondents treat different types of works similarly, so what really matters for assessing a particular case of infringement is not the kind of creative work considered, but its intended use. We make this assumption because copyrighted works share some important characteristics that justify their unification under a common legal regime, which our population of lawyers should be able to readily recognize (Landes and Posner, 1989 Landes, W. M., and R. A. Posner. 1989. An economic analysis of copyright law. The Journal of Legal Studies 18 (2):325–63. doi: 10.1086/468150.[Crossref], [Web of Science ®] , [Google Scholar]; Leaffer 2010 Leaffer, M. A. 2010. Understanding copyright law. New York: LexisNexis. [Google Scholar]). First, in the case of (non-scientific) creative works of the mind (stories, songs, drawings), once the initial cost of production is made, copies can be distributed at relatively much lower costs and near zero cost for digital ones. Second, the purpose of copyright is to protect the expression of the author’s creativity—a unique arrangement of words, musical notes, etc.—as opposed to the creation itself (i.e., the “new idea,” which can only be protected in the case of scientific innovations by securing a patent).
We tested this implicit assumption by examining whether attitudes on ethics of file sharing differ based on the type of creative works considered. To do so, we leverage the responses provided to questions 3, 5, 7, 9, and 13 in our survey (see Appendix A for the full list of presented scenarios). Table D1 provides the data on justification “avoid payment”—and reports averages of ratings based on the kind of creative works considered.
Table D1. Averages of ratings for questionnaire items related to the justification “avoid payment” based on the kind of creative works considered.
We can see from the table that our assumption is largely holds: on a 5 points scale, there are no practically significant differences in the reported ethical acceptability of copyright infringement across different types of media—TV shows, movies, music, and fiction books. (We did not ask this question with respect to software, unfortunately.) Consistent with the approach we take in the article, it is interesting to note that significant differences in ethical assessments arise again when one adds the “educational purpose” rationale to the last copyright infringement scenario presented in Table D1. This is done in survey question 14, which is different from question 13 only in the sense that it considers the case of copyright infringement for academic books (as opposed to fiction books). The average ethical acceptability in this case is 3.28, compared to the value of 2.71 in the case of regular fiction books (diff = 0.53; p = 0.001). Again, we take this as suggestive evidence that “intended use” dwarfs the “type of file considered” criterion when it comes to assessing the ethical acceptability of copyright infringement.
Until next week,
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