Affect and Value in Critical Examinations of the Production and ‘Prosumption’ of Big Data

In this paper I explore the relationship between the production and the value of Big Data. In particular I examine the concept of social media ‘prosumption’—which has predominantly been theorized from a Marxist, political economic perspective—to consider what other forms of value Big Data have, imbricated with their often speculative economic value. I take the example of social media firms in their early stages of operation to suggest that, since these firms do not necessarily generate revenue, data collected through user contributions do not always realize economic value, at least in a Marxist sense, and that, in addition to their speculative value, these data have value beyond an economic valence. Instead I argue that in addition to their function as systems for accumulation, social media and their associated data have an affective value, related closely to their economic value, and demonstrate the efficacy of social media as systems designed for the appropriation and circulation of user attention

Privatizing Copyright

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech on those platforms is governed by a series of highly confidential licensing agreements with large copyright holders. Yet despite the dominance of private contracting in ordering how millions of pieces of digital content are made and distributed on a daily basis, little is known, and far less has been written, on just what the new rules governing creative expression are. This is, in fact, by design: these license agreements contain strict confidentiality clauses that prohibit public disclosure of any and all of their contents. This Article, however, pieces together clues from publicly available court filings, news reports, and leaked documents. The picture it reveals is a world where the substantive law of copyright is being quietly rewritten. Agreements between digital platforms and rightsholders remove the First Amendment safeguard of fair use, insert a new moral right for works previously deemed ineligible for moral rights protection, and use other small provisions to influence and reshape administrative, common, and statutory copyright law. Further still, recent changes or lobbied-for changes to copyright’s public law seek to either enshrine the primacy of such private governance or altogether remove copyright rulemaking processes from government oversight, cementing the legitimacy of the new private governors. Changing copyright’s public law to enshrine the primacy of such private governance insulates the new rules of copyright from the democratic process, transforming public participation in, and public oversight of, the laws that shape our daily lives. Creative expression on the internet now finds itself at a curious precipice: there is a seeming glut of low-cost or free content, much of it created directly by and distributed to users—yet increasingly regulated by an opaque network of rules created by a select few private parties. An understanding of the internet’s democratizing potential for creativity is incomplete without a concomitant understanding of how the new private rules of copyright may shape, and harm, that creativity

Divino v. Google

Fourth Amended Complain

Patent Assertion and Startup Innovation

This report, supported by funding from the New America Foundation, details the experiences of startups with patent assertion based on surveys of about 300 venture capitalists and venture-backed startups conducted in 2013. According to survey responses, patents for novel inventions play a generally positive and at times crucial role for startups. They help to transfer technology, enable investment, and improve exits, particularly in bio/pharma industries. But patent assertions by NPEs, which at times hit startups when they are least able to fight them — on the eve of a funding or acquisition event, or, 40% of the time, in the context of the startups’ customers — can have significant and at times devastating impacts on companies. Though partnering with NPEs to monetize patents can be beneficial to companies as well, the benefits do not appear to offset the harms, according to survey responses and VC interviewees whose companies had been sold to and been sued by NPEs. Furthermore, many survey respondents do not find these to be socially productive assertions — but rather on the basis of patents that, though they may be valid, are viewed as frivolous or overbroad.Though the risks associated with patent assertions were described as feeling “unbounded,” startups are routinely expected to absorb these risks in their dealings with acquirers, investors, and customers. Overall, these assertions have added friction to technology transactions, reduced the value of pursued startups, and triggered large indemnities, according to study subjects. Specifically, the report finds: Finding 1: Based on survey responses, 75% of surveyed venture capitalists (VCs) and 20% of venture-backed startups with patent experience have been impacted by an NPE demand; nearly 90% of all tech VCs have been impacted. The demand was based on the startup’s adoption of another’s technology 40% of the time. Low quality and sofware patents were identified as problematic. Finding 2: Although NPE assertions are perceived as motivated primarily by money, respondents reported routinely experiencing non-financial consequences including delays in hiring, meeting milestones, and business line pivots and exits. Finding 3: Most VC respondents believe patents are important for innovation. An estimated 5% of startups have sold their patents to NPEs, experiencing positive benefits from doing so. However, 84% surveyed VCs, many whose companies had sold to NPEs, still believed that NPEs were harmful for innovation. Finding 4: Startup concerns with patent enforcement go beyond NPEs and extend to the disadvantages startups suffer relative to larger incumbents as a result of poor patent quality, high costs, and delays associated with the patent system, survey respondents told us. The inability of startups to defend their own patents and suits brought by “patent predators,” larger companies that sue with anti-competitive motives, also presented specific concerns.To ameliorate the harms of patent assertion on small companies, the report recommends several interventions, keeping in mind the special needs of startups, who, with their fewer resources, less time, and greater focus on building the business, are at a relative disadvantage when patent processes are expensive, slow, or require deep patent expertise (or “patent game”-playing skills). These include: Recommendation 1: Fully fund the PTO and its quality initiatives including tightening functional claiming and expand low-cost access to the PTO’s transitional program and other forms of post-grant review by reducing fees for small and micro entities and supporting and prioritizing collaborative challenges to patents asserted against large numbers of defendants, particularly by downstream users and small entities. Recommendation 2: Make patent cases about the merits, not about who can outlast or outspend the other side, by permitting more discretion in awarding fees and costs for non-core discovery and promoting uniformity and early dispositive rulings, for example by requiring the Patent Pilot Program to implement and measure the impact of best practices. Recommendation 3: Make patent risks more manageable for startups by requiring demand letters and complaints to disclose the real-party in interest, claim charts, related litigations and reviews, and licenses that could cover the target. Recommendation 4: Make startups less attractive targets by limiting the liability of downstream users and the precedential value of the settlements signed by small companies

Creators, Innovators, and Appropriation Mechanisms

Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who are aligned with them, as they push for copyright reform. The narrative being developed is that tech firms are simply trying to create the innovative technologies and digital platforms of the future, while being dragged down by behemoth content owners who are trying to thwart this progress to maintain the status quo of an analog content world that no longer exists. But this simple narrative is quite misleading and harmful to the kind of rational, objective debate necessary to accommodate the newest forms of digital and social media in the copyright ecosystem. Great creators are innovators and great innovators are creators. The content companies, including large legacy movie and music studios, have developed impressive new digital technologies. And digital technology and platform distribution firms are increasingly creating new content. In the middle, industries such as video gaming have always existed at the crossroads of developing cutting edge technology and content. What society is really witnessing is an explosion of creative innovation across a range of fields. But no matter what the field or form, creative innovation relies on some mode of appropriation. Without it, anyone can copy or use the innovation without payment or attribution to the original producer. In such a world, it seems likely that few will invest significant time or resources into fully developing and implementing their ideas for a particular creative innovation. They will still have the ideas, and they may be willing to implement them in some inexpensive, fast manner. While that may work for some kinds of creative innovation, it does not work for many others. Copyright is only one appropriation mechanism. There are many others, including the areas of intellectual property (“IP”) outside of copyright. A problem that underlies the emerging innovator-creator copyright debates is that creative innovators naturally want their inputs to be “free” (in both the cost and repurposing senses), while they need their outputs to be appropriable if they want to receive a return on investment for their innovations. As argued below, this appears to have led some tech firms and their advocates to engage in a diversionary sleight of hand in which they seek to minimize the appropriation mechanisms of those providing their inputs, while hiding or downplaying robust efforts to appropriate their outputs. This Essay explores the current state of this phenomenon, especially with regard to digital and social media. It argues that policymakers need to focus on this broader perspective and not allow some interested players to narrow the debate to the appropriation mechanisms of only one stakeholder group in creative innovation ecosystems

Fair Use, Fair Play: Video Game Performances and Let\u27s Plays as Transformative Use

With the advent of social video upload sites like YouTube, what constitutes fair use has become a hotly debated and often litigated subject. Major content rights holders in the movie and music industry assert ownership rights of content on video upload platforms, and the application of the fair use doctrine to such content is largely unclear. Amid these disputes over what constitutes fair use, new genres of digital content have arrived in the form of “Let’s Play” videos and other related media. In particular, “Let’s Plays”—videos in which prominent gamers play video games for the entertainment of others—are big business in the streaming and video upload world. Many video game producers vigorously assert the right to prevent the publishing of Let’s Play videos or to demand a cut of the revenues. This article discusses who legally possesses the right to distribute or profit from Let’s Play content under current law, and the way that courts ought to approach these disputes consistent with the principles of copyright protection. I conclude that the nature of video game content produces conceptual challenges not necessarily present in movies and music, and that these differences have a bearing on fair use analysis as it applies to Let’s Play videos

The Rise of the News Aggregator: Legal Implications and Best Practices

During the past decade, the Internet has become an important news source for the majority of Americans. According to a study conducted by the Pew Internet and American Life Project, as of January 2010, nearly 61% of Americans got at least some of their news online in a typical day. This increased reliance on the Internet as a source of news has coincided with declining profits in the traditional media and the shuttering of newsrooms in communities across the country. Some commentators look at this confluence of events and assert that, in this case, correlation equals causation -- the Internet is harming the news business.One explanation for the decline of the traditional media that some, including News Corporation owner Rupert Murdoch and Associated Press Chairman Dean Singleton, have seized upon is the rise of the news aggregator. According to this theory, news aggregators from Google News to The Huffington Post are free-riding, reselling and profiting from the factual information gathered by traditional media organizations at great cost. Murdoch has gone so far as to call Google's aggregation and display of newspaper headlines and ledes "theft." As the traditional media are quick to point out, the legality of a business model built around the monetization of third-party content isn't merely an academic question -- it's big business. Revenues generated from online advertising totaled $23.4 billion in 2008 alone.But for all of the heated rhetoric blaming news aggregators for the decline of journalism, many are still left asking the question: are news aggregators violating current law?This white paper attempts to answer that question by examining the hot news misappropriation and copyright infringement claims that are often asserted against aggregators, and to provide news aggregators with some "best practices" for making use of third-party content

“Rewarding Good Creators”: Corporate Social Media Discourse on Monetization Schemes for Content Creators

This discourse analytical article deals with the power relations between social media corporations and content creators in the context of monetization schemes of social media businesses, i.e., schemes that allow creators to monetize their social media content. Specifically, this study presents an analysis of discourse material pertaining to YouTube’s monetization scheme (the YouTube Partner Program [YPP]) to shed light on the broader point of how social media corporations position themselves in relation to creators who (seek to) earn money on social media. While some research on social media has focused on their potential to empower users/content creators, less optimistic scholars have addressed social media corporations generating massive profits by exploiting creators, for example, in the form of free digital labor. By comparison, there is a lack of research, especially empirical discourse analytical research, on creators’ paid digital labor and on how social media corporations conceptualize paid creators. This study redresses this gap regarding one of the oldest monetization schemes—the YPP. Using corpus linguistic tools to explore textual data from 46 YouTube sites detailing the YPP, this study homes in on references to content creators, YouTube, and how these players are connected to one another. The findings show that although the name YPP elicits the impression of cooperation on equal terms, YouTube represents itself as legislator, judge, and executive authority. This indicates that despite the ability of partnered content creators to share in the social media businesses’ profits, they do not inhabit a particularly empowered position

Mapping Disinformation During the Covid-19 in Indonesia: Qualitative Content Analysis

During life-threatening situations such as the Covid-19 pandemic, disinformation is rife. While people project their affective aspects into understanding the situation, their fear of Covid-19 interferes with their logical and reasonable assessment of disinformation. Less credible information such as rumors becomes reliable for some people. This study aims to map the disinformation category based on the Ministry of Communication and Information report from January to March 2020. There are 359 hoaxes with five categories and 30 sub-categories. This study uses qualitative content analysis as a method. The study results revealed that most of the disinformation during the Covid-19 pandemic was related to the spread of hoaxes on health issues. This research implies that several recommendations are made to respond to the urgency of handling disinformation during Covid-19 in Indonesia, such as initiating digital literacy and media literacy in the national education system