Tag DMCA

Giving copyright the $5m finger

Check this out.

bo.lt is a startup in what seems to have become the classic west coast model.

Silly domain name? Check!

Bullshit mission statement? Check!

SF address and previous startup credentials Check!

Big money funding? Check!

Business model entirely dependent on other peoples content? Check!

It’s really extraordinary. Let me quote from the website:

Grab the pages that interest you. Cut out what is distracting, corporate, and irrelevant. Drop in images and text that can make the page come alive again. And share what you have done. Content wants to move in the social world. Give it a boost.

We have created software that helps *you* make the web more interesting to the people you care about. With BO.LT we have taken the shackles off. It’s your turn.

So let me put that another way.

Copy content. Amend it however you like. Change the meaning if you want. Remove the branding, links, context, design (or don’t, even if you have changed the meaning and message of the content). Add some stuff of your own. Re-publish it somewhere else.

Kind of an encyclopaedia of what copyright is meant to prevent. This is a product of the crazy internet utopia that so many west coast startup people seem to live in, believing it to be real. Act as if the world is the way we want it to and maybe it will come true!

There’s a reason why this stuff is illegal. In the case of bo.lt lots of them. I find it hard to fathom that it has to be spelled out. All you have to do is put yourself in the position of whoever created a page or site or piece of content in the first place.

Are they necessarily happy for anyone else to use it however they want? Do they mind if someone alters the content but makes it look like they didn’t? Do they mind if it’s commercially exploited by someone else? Do they care if someone’s marketing department wants to tweak their article to make it a bit more favourable? Do they mind if their brand is mis-used whimsically by anyone who happens to swing by bo.lt?

Perhaps they would like to have a say. Perhaps they would like people to ask first. Perhaps they want to be able to say no if they don’t like it. All these rights are given to them by the law, yet here someone has set up a business as if the law simply didn’t exist.

I know that these things go on. I have spent years stopping the most egregious mis-uses of content and brands which I have been managing. But I haven’t often seen quite such a blatant attempt to commercialise what to me is quite clearly illegal activity (bo.lt is a “freemium” service – prices for corporate users start at $2000 per month).

So, if this seems so clearly illegal, how are they getting away with it? Why on earth did someone put $5m into it?

Well, it seems that is all part of the game. Whether something is legal or moral doesn’t really seem much of a consideration. And in the case of bo.lt they reckon the law has given them a killer get-out-of-jail card. They are protected, they say, by the “safe harbour” provisions of the Digital Millennium Copyright Act. Nothing their users do is their problem until someone tells them about it. Never mind their role in facilitating and hosting the infringement – as long as someone else actually did the deed of initiating it, they’re OK.

You can tell how much they care about copyright by looking at their terms and conditions.

If you’re a user you have to agree – by accepting the terms of service – that you will not:

violate or infringe the copyrights, rights of privacy or publicity, or any other rights of any person;

which you will, of course, almost always be doing unless you’re using it to adapt your own owned or licenced content or webpage which would seem a little odd. There may certainly be non-infringing uses of the service but they seem unlikely to be the majority. They have to put that little thing in their terms, to at least try to stay on the right side of the DMCA, but note the informality of it. Nothing done to enforce or check compliance, just a sentence buried in the small print nobody ever reads.

Compare and contrast to what you have to do if your copyright has been infringed:

It is Boltnet’s policy to respond promptly to claims of copyright infringement and to remove or block access to any infringing material as described below. If you believe that any content or pages served by the BO.LT network contains infringing material or property, then please notify us as soon as possible.

If you believe that your work is the subject of copyright infringement and appears on our Site, Services or any pages on the BO.LT network, please provide Boltnet’s designated agent the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a full list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Boltnet to locate the material.
  • Information sufficient to permit Boltnet to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Boltnet’s agent for notice of claims of copyright infringement on this Site can be reached as follows:

By Mail: Boltnet.Inc,

Attn: Ben Smith

3 Pier, Suite 105

San Francisco, CA 94111

By Phone: 415.742.8418

By E-mail: copyrightclaims@boltnet.com

While they’re prepared to take their users implicit word for it that they’re not infringing anyone’s copyright – no need even for a statement “under penalty of perjury” to confirm – despite that being almost vanishingly unlikely in a huge proportion of cases, they are a little less inclined to take a copyright owner’s word for it when their work has been infringed.

So while anyone can effect an infringement by simply pasting a URL into the bo.lt website, the work of a second or two, anyone wanting to protect their work has to not only actively track it down but also provide a slew of paperwork and scary legal documentation to get it removed.

Even after that, it would seem the best you can hope for is that they’ll take down or block access to the content. Nothing there about damages, identifying the user they’re hiding behind to get their DMCA protection, helping right any wrongs. Just the minimum the law demands of them.

It’s a sort of distillation of the contempt with which parts of the online world regard other peoples property. They see it as a free resource, a route to a swift $5m in “series A funding”. The idea that the person who owns something might have something to say about it, or that what they’re doing is simply legally and morally wrong, seems not to come into it.

For sure, it confirms what is already obvious: the DMCA is bad law and gives rise to bad outcomes. Somehow, though, it is worse than that. It seems so cynical, showing a metaphorical finger to copyright and laughing all the way to the bank. I honestly thought it was a spoof. I hope it is. But sadly it seems real.

Footnote: while they seem quite laissez faire about other peoples copyrights, bo.lt are a bit more protective of their own, bringing the full force of the law to bear on anyone who does to their content the thing that they will happily do to anyone else’s

From their terms of service again (emphasis added by me):

Unless otherwise specified in these Terms of Service, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Boltnet, Copyright 2010 Boltnet, Inc.. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor. You agree not to copy, reverse engineer, or otherwise infringe on our complete right, title, and interest to the business processes, technology, interfaces, designs, or other proprietary property contained in the Boltnet Site or Service.

Ha! Stick their own URL into their service and wait for the knock on the door. Perhaps I’ll try it!

What do you use, in the end? End (re)users and the evolution of licensing

End users are the focus of everyone in the creative industries. But they’re strangely neglected. It’s time to think of them as active, not passive, customers.

The customer is always, um, licenced

End users are strange beasts, in the copyright world. They’re the ultimate goal of all creative endeavours… what’s the point of creating something nobody wants to see?

But in terms of their interaction with the actual nuts-and-bolts of how copyright works they’re treated almost as an afterthought. They’re the passive recipients of content and they are expected to stay passive.

So while the business of passing copyright around, licensing and trading, is a very active, involved and evolved one for everyone else in the chain – the creators, the publishers, the distributors and others – it’s curiously ossified for End Users.

“Not to be shown on oil rigs”, the warning sternly says at the start of a DVD. That’s a licence, of sorts, but not one you get much say in. “Not to be stored in a retrieval system” say books before you get to the actual story.

You’re not allowed to do anything other than what they say, you’re positively discouraged from doing so. I have no idea what is involved in legally showing a DVD on an oil rig, and the warning notice doesn’t explain, but I’m sure it’s not simple and not cheap.

Previously passive

There are good reasons for this. Principal among them the fact that in the past end users only wanted to consume things. They were naturally passive creatures in a disconnected world. Which is good, because managing the complexity of everyone needing a slightly different licence was way too expensive for the mass market. It all came together in what management consultants would call a virtuous circle, passive consumption leading to a mass market for cheap products, leading to a huge diversity of products and generally falling prices.

But it has changed now. End users are no longer passive. They do things other than just sit and stare. They tweet, they blog, they email, they chat, they link, they post, they comment, they mash-up. They include the content they consume in the output of their online life.

The era of End Re-users

They – we – are not End Users any more. We’re End Re-users.

As far as I know, the term “End Re-user” was coined in the News Corporation submission to the Hargreaves Review of Intellectual Property in the UK (I had a hand in drafting this submission).

I think it’s a useful concept, because it encapsulates both the challenge and the opportunity for the future.

The challenge: End Re-users are often accidental infringers

The challenge is the obvious one. If users want to do all sorts of “use” of content, they’re no longer passive and they’re straying outside the boundaries of the licences they have been given. That makes them infringers. And that fact alone gives rise to a range of proposals from legislators, anti-copyright activists and an assortment of thinly disguised vested interests to change the law. It can’t, many say, be a good law if it throws so many people into breach of it.

Considering this from the point of view of the law is the wrong perspective, though. The law gives end users virtually no rights at all. The thing which allows a user to do something with a piece of content is the licence from the content owner, not the law. The problem isn’t with the law, it’s with the paperwork.

The opportunity: more use of content creates a new market

Which leads to the opportunity. Very few businesses have become really successful by refusing to give their customers what they want. This emergent generation of End Re-users should represent a huge new business goldmine.

All these people who want to user material in different ways are potentially more valuable customers. Every time they want to do something beyond just sit and consume, they’re creating value.

They might not be worth much individually, but there are millions of them out there. And as long as you can collect it simply, even a few pence can be profitable. Just ask The Sun.

The practical barrier to treating them as an opportunity, the complexity of managing all those licences and payments, ought to be eliminated by technology.

A quick word about cost vs value

Some people argue that technology, because it drives the cost of copying content to zero, will inevitably lead to content being valued at zero.

I would make a different argument. In freeing ourselves from the limitations of the physical supply chain for creative products we have also freed ourselves from the mass market constraint that every customer has to want, and get, the same thing.

The real liberation of the move from atoms to bits isn’t the end of cost and price, but the end of the need for one size – and one price – to fit all. It ought to be feasible to cater for the blogger, the passive consumer and the large scale commercial publisher individually and cheaply.

The advent  of the zero-cost copy frees the creative industries, and their customers. from the straitjacket of mass production. Technology creates the opportunity for fabulous growth and innovation, with everyone’s needs met by the right content and a fair price for them.

Meanwhile, back in the real world…

All of which sounds wonderful, but it doesn’t bear much resemblance to the real world of the internet today. If this huge opportunity is lurking in the shadows, why hasn’t it come out into the open yet?

Surprisingly, the answer is only partly that the technology doesn’t yet exist. Most of it does, and what’s left really needs a market to evolve around, at which point it will begin a symbiotic flourishing along with the market.

Perhaps the same could be said of many of the existing media businesses. Incumbent players are rarely the best innovators – they need to be shown the way forward, usually by younger, nimbler competitors snapping at their heels.

But those new entrants don’t really exist, leaving the existing media companies and their still substantial existing businesses with the classic innovators’ dilemma. The absence of these new entrants is another signal that all is not as it should be.

So things grind on, slowly

So evolution online, when it comes to content businesses, has moved at a glacial pace in the last ten years.

New entrants restrict themselves, by and large, to gaming the advertising market with low content costs and clever search optimisation.

Older players, with their high investment in content, struggle to find success to match their huge online audiences.

The underlying issues

In my view the enemies of change in this area are the vested interests of the dominant players on the internet and to some extent the law.

Many companies which make fortunes from the internet depend on the chaotic and un-evolved market of today remaining.

What is needed is technology to manage billions of complex licences, at low cost, on behalf of millions of creators and hundreds of millions of consumers.

The potential of technology to manage these relationships remains unfulfilled not least because it would damage the business of Google (whose aggressive lobbying against the Automated Content Access Protocol betrays their real fears in this area). And without Google’s support, or at least compliance, anything which affects the web broadly has little chance of getting established.

Anyone making billions of dollars a year from the ability to treat the whole internet as a free resource understandably wants to maintain the status quo. As the ultimate re-user they would have lots to lose, and at first glance little to gain, in a world where their use, along with everyone else’s, could be properly licenced.

The law, often, doesn’t help

The law, in the form of various internetfriendly statutes enacted to protect the then nascent ISPs and search engines, to a great extent enshrines and protects this status quo. So it shares the blame.

While copyright law may remain largely intact, the law creates perverse incentives which, my providing immunity for ISP and service providers, effectively protect the interests of infringers. As long as the law makes infringing use of content free and virtually risk-free, it will be hard for competitive new markets to emerge. So the law preserves and protects the new status quo.

But the status quo, while serving a narrow range of limited interests well, serves everyone else badly. End Re-users, the obvious big opportunity online, are un-served by antiquated processes and approaches to licensing. A range of entrepreneurs who would like to be able to use content more easily in their businesses, find it difficult and frustrating to do so. And content owners are wilting in the harsh reality of a digital environment in which audiences generate pitiful returns.

The End Re-user is always an opportunity

So I think we should all keep the End Re-user in mind when we consider the online landscape. Their interests are paramount not just to them, because they want to be able to do what they want with the content they like, but to everyone in the digital ecosystem because well-served end-users will be the generators and beneficiaries of much of the unfulfilled potential of the internet.

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