Where I’m coming from in the Australia-versus-digital-platforms fight

The one thing you can say about any tech-policy dispute involving Facebook is that the ensuing discussion will take a while. Witness this week’s blowup in Australia, where the imminent passage of a bill (“News Media and Digital Platforms Mandatory Bargaining Code”) mandating a scheme of payments from the largest digital platforms to government-registered news publishers led Facebook to respond Wednesday with a news blackout. Now Australians can’t read or share news links on Facebook, Australian publishers can’t share their stories there, and Facebook users in every other country can’t share Australian news links either.

Photo of an inflatable globe, showing Australia

After writing about that fracas at Forbes on Wednesday, I spent too much time over the next day and a half in what may be my longest-ever tech-policy Twitter discussion. That left me feeling worn out–but also wishing I had taken a little more time to make my views clear. So for future reference, here are several things I think about this entire debate over what, if anything, tech platforms owe news sites.

Link taxes don’t make moral or economic sense. Not only does nobody need permission to link on the Web, a pointer to a news site–whether it’s a Google search result, a Facebook post or the blue text here–does not take from that site in any meaningful way. Well, not unless the nut of the story comes across in the headline and lead image, in which case the same story would likely go unread if seen on a newspaper’s home page. I’ve said this in various ways over more than a decade: the Washington Post in 2009, the Disruptive Competition Project in 2012, at Yahoo Finance in 2018, and at Glitch’s blog Glimmer last spring. (DisCo is a project of the Computer & Communications Industry Association, a trade group that counts Google as a member; as you can see, my judgment didn’t change before or after my one year contributing to its policy blog.)

We don’t need new forms of intellectual property. Trying to solve an economic or societal problem by expanding the reach of intellectual-property rights is almost always a bad idea, whether it’s allowing far more forms of human output to become eligible for patent protection, retroactively extending copyright terms by decades, or criminalizing certain categories of software because they could be used to infringe copyright. Every time, we wind up rewarding the biggest incumbents and giving more work for lawyers while doing much less to promote the progress of science and useful arts–as in, the reason the Constitution gives for Congress to grant these limited rights.

The vast reach of Facebook and Google is a legitimate cause for nervousness. I think both companies exercise more influence over our online lives than is healthy and have written multiple how-to stories (see, for instance, these stories from 2017, 2018, and 2020) to get people to spend less time at each. And I’ve practiced what I preach, including the defaults in my own browsers and the setup of this blog. Yet people keep sticking with Google, even though it’s trivial to change your search site. My WordPress stats show that of the 291,315 search-engine referrals to this blog since its April 2011 launch, 277,850 came from Google. Y’all couldn’t try making DuckDuckGo or Bing the default in even one browser on one device?

Antitrust laws exist for a reason. In retrospect, letting Facebook buy Instagram seems foolish, and waving through Google’s acquisition of a series of ad-tech firms looks like another missed opportunity. But if the underlying problem here is that these two companies have grown too big and too powerful, we already possess the tools to do something about that. Trustbusting may be the preferred remedy of Sen. Elizabeth Warren (D.-Mass.), but it was also a key plank of Theodore Roosevelt’s Republican administration. And it’s a group of Republican state attorneys general that have made the most serious charges of anticompetitive behavior by Facebook and Google.

Facebook’s political choices invite particular skepticism about its motives. Over the last five years, we’ve seen Facebook set aside its own rules about misinformation, wave aside obviously inauthentic behavior and reward right-wing outlets like Breitbart to placate the Trump wing of the Republican Party. Now it’s chosen to expel legitimate news for an entire continent, leaving News Feeds there wide open for memes at best, misinformation at worst. Does anybody think much of Facebook CEO Mark Zuckerberg’s sense of civic obligation after all this?

Online advertising is a big part of the news industry’s problem. The more I look at the machinery behind the online ads that supposedly prop up news sites–meaning the display ads programmatically inserted to match a reader’s perceived interests–the more I hate it. We’ve built a system that requires extensive tracking of people across the Web, somehow involves the work of a large set of intermediaries yet still winds up dominated at multiple levels by Google, struggles to keep out bad actors, and winds up delivering too little money to publishers. You know what doesn’t even touch this problem? Demands for link taxes.

If digital platforms can build new businesses with publishers, that’s not wrong even if it happens under political duress. Google has responded to demands like those in Australia and in Europe with something called the News Showcase, an enhanced news-search site that takes readers direct to stories and pays publishers. It’s ugly and sad that Google is doing this to pay off publishers who would otherwise try to break the open Web, but if it gets money to newsrooms more reliably than digital ads, I’ll take it.

News publishers can be their own worst enemy. Neither Facebook nor Google forced news sites to harangue visitors with solicitations to sign up for browser alerts or newsletters. The tech giants didn’t forbid paywalled newspapers from giving occasional or out-of-town readers some middle ground between opening a subscription and opening a private-browsing window. And they certainly didn’t force newspaper owners to sell out to such civic cancers as the newspaper-strangling hedge fund Alden Global Capital, new owners of the Chicago Tribune and the Tribune Publishing family of papers.

It’s fair to judge a political act by its ability to persuade. All of the above might suggest that I should be cheering on Facebook for defending the open Web against Australia’s intellectual-property land grab. But Facebook chose to respond in the most oafish manner possible short of deleting the accounts of individual Aussie news execs. Facebook didn’t try to target its response to publishers seeking to cash in on this law, subjected users in the rest of the world to an outburst of control-freakery, and can’t be bothered to make a real case to users who post an Australian news link and get an error message. The open Web no more needs this help than the argument over regulating “Big Tech” is helped by the grandstanding of Missouri’s sedition-abetting junior senator. So now I worry that Facebook’s arrogant, clumsy response will only goad legislators in Canberra into pushing this law through, just to show they won’t be bossed around by Zuckerberg.

Updated 2/21/2021 to note that the Australian bill would have the government determine which publishers qualified for these payments, a deeply problematic provision in its own right, clean up some tangled syntax, and to add a paragraph about antitrust that should have been in this post yesterday.

Weekly output: an expanding public domain

Four days to go in this year, less than 24 days to go in Donald Trump’s term.

12/24/2020: You’ll Be Able To Download A Lot More Stuff For Free—Legally—Jan. 1, Forbes

I had meant to write last year about the overdue reopening of the public domain after 21 years of its expansion being closed off because of the 1998 Sonny Bono Copyright Term Extension Act. But my friend Glenn Fleishman beat me to it with a terrific story for Smithsonian. Fortunately, Congress refrained from passing yet another retroactive extension of copyright terms, allowing me to celebrate the impending unlocking of 1925’s creative works for reuse and remix–and explain how we haven’t seen the old intellectual-property-policy script get yet another remake in Washington.

Weekly output: digital divides, copyright meets AI, COVID-19 tracing

This was my first Easter spent in the D.C. area since… sometime in the mid 1990s? I would like to know a more exact date, but those years passed when I still used paper calendars that I lost in a prior millennium.

4/6/2020: Gaps in Internet access, Al Jazeera

The Arabic-language news channel had me on to talk about inconsistent Internet access–some the fault of dysfunctional economies, some the fault of governments deciding that cutting off the Internet will help them manage domestic dissent. The next day, an e-mail from the advocacy group AccessNow scolded Qatar and its neighboring Gulf states for blocking WhatsApp, FaceTime and other Internet-calling apps.

4/9/2020: Who Wrote That Hit Song? It Depends on How Human They Are., Glimmer

My second post for the Web-creativity shop Glitch’s equivalent of an inflight mag covered how copyright law should treat works created by artificial intelligence. I haven’t had a chance to get into the weeds about intellectual-property policy like this since I was last writing for the Disruptive Competition Project seven years ago; I’m glad there’s still a market for that sort of wonky work.

4/12/2020: Using apps to trace COVID-19, Al Jazeera

AJ had me on a second time this week to talk about the potential of smartphone apps to help trace patterns of novel-coronavirus transmission–without giving your location history up to Google or the government or even sharing your name with the people you might have occupied some personal space with after catching this virus.

Weekly output: EU copyright, ICANN, self-driving cars (x2), MacBook battery

I could have had two other items on this list–Thursday, two different news networks asked if I could comment on camera about Yahoo’s data breach. I told each booker that as somebody who writes for a Yahoo site, it would be just a bit awkward for me to opine on camera about that issue. (Besides, it’s not like I had much free time that day in the first place.)

9/19/2016: The EU’s new copyright reforms could change the internet, Yahoo Finance

I filed this piece–a sequel of sorts to a post I did in 2012 for the Disruptive Competition Project about Europe’s doomed dream of getting search engines to pay newspapers for showing snippets of stories in search results–from the Online News Association’s conference Friday afternoon of the prior week. That scheduling seems to be the only consistently reliable way for me to get a post up on a Monday morning.

9/20/2016: No, Ted Cruz, the US isn’t giving away the internet, Yahoo Finance

I’d had this story on my to-do list for weeks, but finally writing it this week turned out to be good timing: The next day, Donald Trump came out against the planned handover of supervision of the domain name system, doing so with his characteristic lack of knowledge.

yahoo-final-round-interview9/22/2016: Stocks extend Fed-fueled rally, Yahoo Finance

I made my debut on Finance’s 4 p.m. “The Final Round” live show not to talk about the stock market, but to discuss the legal prospects for self-driving cars. I’m on from about 5:00 to 8:00 in the video, talking to host Jen Rogers about things like who might be likely to sue whom when one autonomous car hits another.

9/22/2016: How the government plans to make your self-driving car safer, Yahoo Finance

I wrote about half this story on the train up from D.C., with the remaining half done after watching a panel of lawyers debate this topic at the MarketplaceLive conference in New York. Because I was in Yahoo’s newsroom, I could go over the edits the old-fashioned way: by sitting down next to my editor instead of bouncing messages back and forth in Slack.

9/25/2016: How to prolong your MacBook’s battery life, USA Today

Not for the first time, my own hardware served up a good column topic that helped me learn a new troubleshooting step, which is always nice.

Weekly output: SXSW panel pitch, Verizon Wireless pricing, TPP, Winvote, retargeted e-mails

For much of this week, I took notes from a seat in a room while somebody else stood before me and others to deliver a lecture about one subject or another. It was a bit like college–except I used a laptop instead of paper, I was never unplugged from the outside world, and there was the prospect of getting paid for what I wrote about those talks instead of Mom and Dad paying for me to attend them.

SXSW panel on panels8/10/2015: A Panel On Panels: Things We’ve Learned Not To Do, SXSW PanelPicker

For the past couple of years, I’ve talked about pitching a SXSW panel about nothing other than the weird performance art that is participating in a panel discussion. I finally went ahead and wrote up a proposal, featuring me as well as ACT | The App Association’s Jonathan Godfrey and Tech.Co’s Jen Consalvo. Please vote for it, if you’re so inclined; if it gets a spot on the SXSW program, you’re welcome to show up in Austin and ask a question that’s more of a comment.

8/11/2015: Verizon Wireless’s new plans, WTOP

I answered a few questions from the news station about VzW’s switch to no-contract prices without phone subsidies–speaking via Skype on some iffy conference WiFi. How scratchy did I sound on the air?

8/11/2015: The Latest US Export: Bad Copyright Laws, Yahoo Tech

I’ve had “write a post about the intellectual-property implications of the Trans-Pacific Partnership trade deal” on my to-do list for a while, and the leak of a much more current draft gave me a reason to turn that into an actual column. Something tells me this won’t be among my most-read stories this month, but it’s a post I had to write.

8/14/2015: Unlocking Democracy: Inside the Most Insecure Voting Machines in America, Yahoo Tech

I spent most of Tuesday, Wednesday and Thursday at the USENIX Security Symposium in D.C., which gave me a chance to attend Jeremy Epstein’s entertaining and enraging autopsy of the incomprehensibly insecure voting machines on which I cast my ballot for over a decade. This post got a spot on the Yahoo home page over the weekend, in case you’re wondering how it racked up 665 comments.

8/16/2015: How ‘retargeted’ ads sneak into your inbox, USA Today

This is the column I’d meant to write last week–and could do this week when the reader who’d sent the e-mail I couldn’t find re-sent that message after reading about my holdup here.

Weekly output: 2014 tech policy in review, Mac scroll bars

LAS VEGAS–Here I am for yet another CES. Sad fact: I’ve made the trip to Vegas for the show so many times that I lost count in an earlier post whining about being badgered by CES PR pitches.

Yahoo Tech 2014 in review12/30/2014: Tech Policy 2014: Mistakes Were Made, Yahoo Tech

I came up with the photo illustrating this column last of all: As I was about to file the thing and stick my editor with the job of finding some stock art, I thought that a photo of OS X’s Calendar app showing “2014” with the setting sun in the background might work just as well.

1/4/2015: How to bring back scroll bars on your Mac, USA Today

Not for the first time, I used my USAT Q&A to revise and extend remarks I’d first made here. Your reward for reading to the end of a column that might otherwise seem too familiar: a tip about an OS X feature that Apple doesn’t seem to have documented.

Feed me, see more (The Magazine meets BuzzFeed)

This story originally ran in issue 15 of The Magazine. You can now read it here by virtue of that publication’s impressively author-friendly contract.

One of the Web’s most popular sites — and the exceedingly rare media property soaking up tens of millions of dollars in venture-capital financing — gets much of its content without asking permission to use it, much less paying for it.

The Magazine BuzzFeed coverThat’s not news. But if you talk to some of the people whose images wind up in BuzzFeed’s endlessly clickable and heavily clicked-upon photo galleries, you may have your expectations overturned, as mine were: most say thanks for the exposure.

BuzzFeed at first looked like an appropriator that took value without returning it, irritating professional photographers who find their work both increasingly valued and increasingly used without compensation. But on closer inspection, BuzzFeed may be finding its way toward a safer course — a careful combination of conventional licensing and curatorial selection.

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Weekly output: Web radio, Facebook privacy, Windows 7, Windows 8 backup

The good thing about driving home from Thanksgiving on a Monday is skipping the Sunday traffic. The bad thing about that strategy is giving yourself a four-day week when five days is the legal minimum to catch up on everything that got shoved aside in the previous week. And then I had to burn half a day on a solid-state-drive upgrade for a laptop that remains unfinished… but I’ll save the ugly details for later.

IRFA post11/26/2012: The Internet Radio Fairness Act, And Two Things I Hate About Copyfights, Disruptive Competition Project

It had been a few years since my last rant about the illogical and unfair royalties charged to Web radio outlets (as compared to satellite and, especially, FM and AM), so I was already due. Then a few weeks of seeing Pandora demonized in ads and Congressional testimony further set me off, resulting in this essay about the inanity of intellectual-property absolutism. Fortunately, I’m not the only one thinking such subversive thoughts.

11/28/2012: Facebook Privacy Changes Not as Bad as You Think, Discovery News

Over the Thanksgiving weekend, something else irked me: Yet another round of uninformed panic over a proposed change in Facebook’s terms of service, this time featuring Facebook users sharing copied-and-pasted gibberish asserting their rights under the nonexistent “Berner Convention.” I hope this post didn’t make me sound like an apologist for a company I don’t trust completely.

12/2/2012: Tip: You can still buy a Windows 7 PC, USA Today

A reader wrote in to ask about putting Windows XP on a Windows 8 computer, which my editor and I thought a bit out there. (Seriously, about XP: Let it die already.) But we did see sufficient interest in a piece about getting a new computer with Windows 7. The column wraps up with an item about Windows 8’s backup options, which are sufficiently complicated that I may have to revisit them at greater length later on.

Weekly output: Mobile patents, Facebook, Tech Night Owl, Twitter fakes, Facebook again

This list below shows me spending more time talking about my job than actually doing it, which isn’t really something to brag about. But I also filed one short piece for print that will hopefully pass muster with the editors involved. And if I hadn’t run into some technical issues trying out a new app, I would have had a post for Discovery here as well.

10/16/2012: Will $Billions in Patent Lawsuits Kill Smartphone and Tablet Innovation?, Advisory Committee to the Congressional Internet Caucus

I discussed the smartphone-patent situation with lawyer and activist Marvin Ammori, American University law professor Jorge Contreras and George Mason University law professor Adam Mossoff, with Internet Caucus legal policy fellow Eric Hinkes moderating. InfoWorld’s Grant Gross wrote up the event and was kind enough to let a quote from me serve as the last word.

10/18/2012: Is Facebook Losing Its Cool?, Mid-Atlantic Marketing Summit

That link only points to an agenda page, not a recording or report of this panel I moderated at a marketing conference in Baltimore. But I assure you that we–meaning me, Mitch Arnowitz of Tuvel Communications, SocialCode’s Cary Lawrence, Kari Mitchell of HZDG and marketing guru Geoff Livingston–had a great discussion about the changing engagement of Facebook’s audience and how that differs from the crowd you might draw at Twitter, Pinterest or some other social network.

10/20/2012: October 20, 2012 — Rob Pegoraro and Joe Wilcox, Tech Night Owl Live

Once again, I was a guest on Gene Steinberg’s tech-news podcast–this time, with BetaNews editor Joe Wilcox. I talked about satellite Internet access and broadband access in general, the almost-guaranteed arrival of an iPad mini this week and Windows 8’s potential fit with consumers.

10/21/2012: Don’t get fooled by fake Twitter accounts, USA Today

In this week’s column, I ticked off a few ways to spot a phony or parody Twitter account, from the lack of a blue “verified” checkmark to a sneaky use of the number “1” in place of a lowercase “l” in a handle. Then I share a tip about inspecting how often and in what ways you’ve interacted with Facebook friends on that social network.

Moderating a copyfight at the Tech Policy Summit

NAPA–I spent Wednesday and Thursday in this idyllic locale at the Tech Policy Summit, an annual gathering for tech-industry types to debate many of the issues I cover and care about: intellectual property, Internet governance, online identity, telecom competition and American competitiveness.

My contribution to the proceedings was moderating a discussion on copyright policy Wednesday afternoon between Jonathan Taplin, a professor at the University of Southern California and director of USC’s Annenberg Innovation Lab, and Mike Masnick, founder of Floor64 and editor of Techdirt, a regular read of mine.

I knew that the two would disagree about quite a few things, especially after re-reading this post from Masnick critiquing an earlier talk by Taplin–and that I’ve agreed with a lot of Masnick’s tech-policy work. So I thought I’d try to start on neutral ground, by observing how using technology to automate and accelerate a human activity can upset people who had no earlier objection to it.

I brought up one of my favorite examples of this, noting that after my car stereo was stolen with a CD in it, nobody would have objected if I burned a new disc from a digital copy I’d made myself–but what if that copy was a friend’s? What if it was a stranger’s, found online? (The prop I used at the podium was my copy of The Band’s The Last Waltz; Taplin produced the movie that yielded that soundtrack.) Then I observed that Masnick wasn’t a fan of using software to automatically ticket red-light violators, asked my first question–and things got a little contentious.

When the organizers post the video of the conversation, you’ll want to watch it. In the meantime, you can get a sense of the proceedings from the tweets by audience members, archived after the jump.

Update, 6/25/2012: The video of our panel is now up at the TPS site. Enjoy!

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