Monday, December 01, 2008

year in technology and rights wrap-up (bye bye blogger)

(CC party info here)

It's been a great year as a columnist for WireTap. I feel like the many things I am involved in as a scholar, a DJ, and a journalist have all come together and helped me be a better advocate for some of the more incremental changes I think are possible, but also carve out more space for broader & deeper changes. But the change I'm going to start with is a very narrow specific change, what with the personal being political.

I'm going to try to migrate this blog off of Blogger by the end of the year. The reasons why actually tie together a great many of my posts from the past year at WireTap.

Here's why I am likely leaving Blogger.
I think they have handled the recent wave - the one directed at blogger - of RIAA crackdowns against music bloggers terribly. Blogger and Google (Blogger's parent company) have not respected the work of the people who make use of their service, and have gone beyond compliance to leaving their users stranded without recourse, plagued by bad-faith, automatized copyright complaints that are sweeping through the music blog world.

In many cases Blogger has taken down content that was up legally, as well as content that potentially or actually violates copyright law. So even bloggers trying to comply with the law at its narrowest are caught up in this. Those who engage with a broader vision of fair use and public discourse have been affected, alongside all kinds of other people who post music online.
In most cases they have not given sufficient information for bloggers to file a counterclaim. Not only have some posts disappeared without warning, but the content accompanying the links in question have disappeared. The Terms of Service say that Blogger will make a "good faith effort" to let you know, but that's clearly not a strong commitment to your work, since recently "good faith" has sometimes meant no notification at all. So take that as a sign of whose good faith they need the most. This is shady behavior, and it disrespects all the labor bloggers bring to Blogger, and all the value they create.

Blogger is a free service, so bloggers don't contribute directly financially. However as we participate in blogging, Google/Blogger mines our data like mad, getting information from the millions of eyes, click-patterns, and other information-generating practices of people who engage with Blogger products. In addition Blogger benefits from the prestige and cultural cache of the people who use it and read it. the more people participate, the more important it is, and the more valuable.

As Fred pointed out, Google has in the past taken on the legal defense of what he calls "silicon valley" - i.e. the tech companies that profit from enhancing or enabling our social practices. Many people have seen this as proof that Google (or technology) inherently supports our social practices - which also have rights attached. Freedom of speech and association, criticism, commentary, education, protest.. all of these rights are implicated by the practices tracked and presented by blogs, and people exercising these rights make use of technology like google's products. But Google and other companies have gotten a bit too much credit for the practices of the people who use them. These companies are not inherently engines for rights and freedoms. Because of how they are designed, they are as much likely to be engines of control or at least of surveillance. How do you think they gather the information that they profit from while providing so much free stuff?

I'm not pointing out a conspiracy as much as a mismatch of goals and functions. Even when they market themselves as a kind of a public service, and even as they come to function as one, they are private companies with private interests, mostly governed by private law. We saw this develop in the Net Neutrality debate - when the FCC classified what is transmitted on the internet as "information" instead of "communication. This defined actions on the internet as private/commercial, and not matters of public concern.

As a private company, Google also always has had the option to bargain over what they allow. They bargain directly with the other large corporations with in-house legal teams, and "bargain" with us over our uses of their services. Bargaining with the public, is what you see in Terms of Service agreements. How fair a bargain it is depends on how free you think people are to switch to a new service. In some cases, like ISPs or airwaves we don't have many chocies because there literally aren't that many. But even when there are techincally choices, the reality limits our choices in a few ways.

Paradoxically, the more useful, fun, and popular a service is, the less ability you have to bargain with them since they start monopolizing everything of value (ease of use, connection to others, fun). I have written about how unfair this bargain can be with respect to our privacy. It's also true that it can be hard to understand what you are bargaining over while the services understand extremely well the value of what you are giving them.

But that private bargaining goes against the effect and significance of these services' success: if blogs are a major way that we make ourselves present in the world, then they are an aspect of public life, and not just a private bargain like you have with a storage company who holds your extra furniture.

If you recognize the public functions of blogs - then Blogger's Terms of Service agreement have us grant away a lot that we might feel are similar to free speech rights. For example, bloggers have no legal recourse over their own content that Blogger deletes when it takes down a post.

So we contract out of our rights to engage with culture online, to converse & communicate online, to create, manipulate and use content online. Even though in the end we may not have so many choices, and though we may think it's worth it in this context or that, ultimately the scope of our rights are reduced.

But is the choice that we are offered is in bad faith? Sometimes - especially when they don't take our rights seriously as a baseline, as Blogger has demonstrated. That said, Blogger is under pressure from other companies or organizations like the RIAA and the AP was probably underpressure from having its business model collapse. My point is that the choice over these issues is not ultimately, a private one.

Until now, our expanded activities (sometimes misunderstood as expanded rights) have been the byproduct of Google's corporate interest, but only the most naive would argue that our rights are the same as Google's private business interests. And now we are seeing the fallout - it's been worth it to Google to settle with publishing houses over Google book search (with the result that we have no precedent about the public's right to read books and essentially the creation of a "license to read"). It seems unlikely that they will stand up to content owners on the more creative legal challenges to the takedowns - but the least they could do is actually give bloggers the information to challenge, and it would be best if they figured out a way to preserve everything but the offending link (block the site from public view but notify the blogger about the specific link so they can deal with it)?

Anyway, even though I don't post much in the way of mp3s, I'm pretty disgusted by the whole thing and will likely be migrating this blog away as soon as I can, hoping that the market solution will work in the short term. But these issues aren't going to go away, and ultimately we need to rewrite copyright law (shrink or alter the derivative works rights, expand fair use for starters) to prevent it from being used this way, and also alter internet law so that our human and constitutional rights are seen as present on the network rather than contracted away to all the private companies we use to get access to the network.

One ray of light: Google also has made grandiose claims about its value to society and its moral commitments, which lets us in on another kind of bargaining that the public may have some power over - the bargaining over public perception of the company. Google should be embarassed about how badly they have dealt with bloggers. Perhaps if there is more public criticism they will come up with fairer practices in the short term that treat us with more respect.

3 comments:

  1. I've definitely considered a migration but I don't know where to. The other well-known feature-rich blogging site, Wordpress, also does DCMA takedowns - so what smaller blogging systems are left?

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  2. It's very heartening to read this in conjunction with your earlier article for WireTap. This most recent wave of DMCA Takedowns is clearly having a critical effect on many bloggers perception of Blogger, and Google by extension.

    On entering this comment I was - to put it mildly - quite concerned that the comment above, presumably in reply to Birdseed's open query, had been deleted by a blog administrator. I am hoping there is an entirely innocent explanation for the deletion, but this current climate of arbitrary takedowns obviously induces a degree of paranoia.

    Keep up the great work, Larisa.

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  3. I have just discovered this problem on my blog as well, i have recently started a music blog and i state it clearly that the blog is to promote the music and the artists and is not meant to provide free downloads, I encourage people to buy the music, I have even posted up 4 links to 4 different online music stores to make it easy for people to just go and buy what they like yet I found that some of the more popular links and posts have been taken down and I have not been notified! I have been left confused and angry searching all day trying to find an explanation for this. I thank you for your post explaining the situation, i now understand what is happening and it is infuriating, i'm guessing there is absolutely no way to retrieve the deleted posts? If you know of anywhere I can host my blog instead please let me know. Thanks

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