We recently saw a Mercury News interview with Wendy Liu, a former Google software engineer turned techlash cheerleader, talking about her new book, “Abolish Silicon Valley.” And we found ourselves nodding in agreement with some of her concerns.
“Why are Google and Facebook so big? They have control over the advertising thing and used it for wealth extraction. Google and Facebook created a new system to deliver advertising. Tech companies are trying to make money as best they can and to have some sort of monopoly and extract rent from that.”
Yep, that sums it up pretty well. Unlike the creative industries that have built a business around investing in people and their stories, companies like Google and Facebook built their businesses on syphoning data about you and selling it to their real customers – advertisers. They work to make themselves the indispensable middleman to connect you with content, while investing as little as possible – and, in most cases, nothing – in that content’s creation. And if a pirate uses their platforms to distribute other people’s content illegally – well, that still puts advertising money in Google and Facebook’s pockets!
But after a strong start, Liu’s theories went awry. She attacked our country’s intellectual property laws which, she asserts, have “monopolized the landscape of cultural production.” She points to what she calls the “creative monopolisation over cultural treasures” by companies like movie studios.
“How would things look like if we had more variety?” she asks.
So, Liu thinks that our intellectual property laws stand in the way of having “more variety”? Apparently, she’s oblivious to the global explosion of content from more sources than ever before.
As of last year, Americans could choose from among more than 140 online services, which they used to access movies and television shows almost 236 billion times, nearly tripling the number of views from just four years earlier. And this explosion of new outlets didn’t just deliver films and television shows from the vaults – the number of original, online television series reached 385 in 2019, nearly five times as many as in 2015.
Nevertheless, premised on her argument that copyright constrains creativity, Liu says we need to “democratise both production and consumption, with better public funding to support artistic ventures, and vastly expanded libraries (physical and electronic) to decommodify access.”
We are a very fortunate country. We have higher levels of private investment in arts and culture than any country in the world, the highest levels of philanthropic support, and very substantial levels of public support at all levels of government. It is this investment, plus the ability of creatives to protect the rights to their works, that makes the U.S. the creative capital of the world. All of this investment is incentivized by copyright.
As Supreme Court Justice Sandra Day O’Connor explained in Harper and Row v. Nation Enterprises, “the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
Probably the biggest threat to American creativity is not copyright law, but Big Tech’s flouting of copyright law. Online platforms have become as big as they are, in large part, because they have facilitated billions of dollars’ worth of copyright infringement, with no regard for the people who are harmed. When Google acquired YouTube, they did so despite its executives “knowing beforehand that we’ll profit from illegal downloads.” And those illegal downloads have multiplied exponentially since Google took over.
Showing just how strong creativity is in America, consider that the film and television industry alone supports 2.6 million jobs and 93,000 small businesses – 87 percent of which have fewer than 10 employees. Smaller companies and their workers depend on copyright, not to mention the millions of independent and individual creatives themselves. That’s the magic of copyright – it protects all creatives, big and small.
The Digital Millennium Copyright Act (DMCA) was intended to protect creatives as the internet grew. It has not worked. Courts have interpreted the law to allow platforms to ignore infringement unless and until they receive an individual copyright takedown notice for each individual infringement, even if the exact same piece of content is illegally uploaded thousands of times in a single week. This has weakened copyright and helped foster a culture that causes the public to expect all content should cost zero and allows platforms to avoid accountability for astronomical volumes of infringements.
Contrary to Liu’s argument, copyright is actually a catalyst for greater equality in the creative space. Copyright gives creative people not only the incentive to create new works, but also the freedom to decide how their creativity is compensated.
Thanks to our copyright tradition, America’s creative industries have become an economic driver that pours $1.3 trillion into the U.S. GDP every year. Nevertheless, beginning well over a decade ago with the contraction of the music industry at the hands of Napster, Big Tech has always sought to erode copyright protections across the creative industries – from journalism to photography to film and television.
With the arrival of COVID-19 in March, this erosion of copyright has rapidly escalated as production has shut down across the country and streaming piracy has skyrocketed. Creative people are hurting more than ever –with Big Tech racing to consolidate its power even further.
By strengthening copyright protections online, we could force companies like Facebook and Google to clean up piracy on their platforms. We could ask Google to voluntarily de-list criminal piracy sites from its Search, or change the DMCA’s takedown process so that when a copyright holder tells YouTube that they do not grant permission for their work to be on that platform, the company must take the initiative to ensure it doesn’t appear again.
With the DMCA currently under reassessment in Congress, such tweaks are within reach. But the platforms do not need to wait for Congress to start making these changes. YouTube already has the technology to filter uploads against a database of copyrighted works. After just one notice from a copyright holder, YouTube could prevent that content from showing up illegally on the platform ever again.
They are other commonsense solutions that could help beleaguered creatives now. So, before Congress moves to drastically change the DMCA, maybe the platforms should go ahead and make the changes they can so easily make. Liu is right to be concerned about the power of Big Tech, but wrong to think that part of the answer is to weaken copyright. For creatives, copyright is our power, and strengthening it will strengthen all of us.