net.wars

This week, some updates.

First up is the Court of Justice of the European Union's ruling largely upholding Article 17 of the 2019 Copyright Directive. Article 17, also known as the "upload filter", was last seen leading many to predict it would break the web. Poland challenged the provision, arguing that requiring platforms to check user-provided material for legality infringed the rights to freedom of expression and information.

CJEU dismissed Poland's complaint, and Article 17 stands. However, at a panel convened by Communia, former Pirate Party MEP Felix Reda found the disappointment is outweighed by the court's opinion regarding safeguards, which bans general monitoring, and, Joao Pedro Quantais explained, restrict content removal to material whose infringing nature is obvious.

More than half of EU countries have failed to meet the June 2021 deadline to transpose the directive into national law, and some that have simply copied and pasted the directive's two most contentious articles - Articles 17 and 15 (the "link tax") rather than attempt to resolve the directive's internal contradictions. As Glyn Moody explains at Walled Culture, the directive requires the platforms to both block copyright-infringing content from being uploaded and make sure legal content is not removed. Moody also reports that Finland's attempts at resolution have attracted complaints from the copyright industries, who want the country to make its law more restrictive. Among the other countries that have transposed the directive, Reda believes only Germany's and Austria's interpretations provide safeguards in line with the court's ruling - and Austria's only with some changes.

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The best response I've seen to the potential sale of Twitter comes from writer Racheline Maltese: who tweeted, "On the Internet, your home will always leave you."

In a discussion sparked by the news, Twitter user Yishan argues that "free speech" isn't what it used to be. In the 1990s version, the threat model was religious conservatives in the US. This isn't entirely true; some feminist groups also sought to censor pornography, and 1980s Internet users had to bypass Usenet hierarchy administrators to create newsgroups for sex and drugs. However, the understanding that abuse and trolling drive people away and chill them into silence definitely took longer to accept as a denial of free speech rights. Today, Yishan writes, *everyone* feels their free speech is under threat from everyone else. And they're likely right.

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It's also worth noting the early stages of the cybercrime treaty. It's now 20 years since the Convention on Cybercrime was formulated; as of December 2020 65 states have ratified it and four have signed it. The push for a new treaty is coming from countries that either opposed the original or weren't involved in drafting it - Russia in particular, ironically enough. At Human Rights Watch, Deborah Brown warns of risks to fundamental rights: "cybercrime" has no agreed definition and some states want expansion to include "incitement to terrorism" and copyright infringement. In addition, while many states back including human rights protections, detail is lacking. However, we might get some clues from this week's White House declaration for the future of the Internet, which seeks to "reclaim the promise of the Internet" and embed human rights. It's backed by 60 countries - but not China or Russia.

There is general agreement that the vast escalation of cybercrime means better cross-border cooperation is needed, as Summer Walker writes at Foreign Policy. However, she notes that as work progressed in 2021 a number of states already felt excluded from the decision-making process.

The goal is to complete an agreement by early 2024.

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Finally....20 years ago I wrote (in a piece from the lostweb) about the new opportunities for plagiarism afforded by the Internet. That led to a new industry sector: online services that check each new paper against a database of known material. The services do manage to find previously published text; six days after publication even a free example service rates the first two paragraphs of last week's net.wars as "100% plagiarized". Even so, the concept is flawed, particularly for academics, whose papers have been flagged or rejected for citations, standardized descriptions of experimental methodology, or reused passages describing their own previous work - "self-plagiarism". In some cases, academics have reported on Twitter, the automated systems in use at some journals reject their work before an editor can see it.

Now there's a new twist in this little arms race: rephrasing services that freshen up published material so it will pass muster. The only problem is (of course) that the AI is supremely stupid and poorly educated. Last year, Nature reported on "tortured phrases" that indicated plagiarized research papers, particularly rife in computer science. This week Essex senior lecturer Matt Lodder reported on Twitter his sightings of AI-rephrased material in students' submissions. First clue: "It read oddly." Well, yes. When I ran last week's posting through several of these services, they altered direct quotes (bad journalism), rewrote active sentences into passive ones (bad writing), and changed the meaning (bad editing). In Lodder's student's text, the AI had substituted "graph" for "chart"; in a paper submitted to a friend of his, "the separation of powers" had been rendered as "the sundering of puissances" and Adam Smith's classic had become "The Abundance of Countries". People: when you plagiarize, read what you turn in!

Illustrations: Adam Smith, author of The Wealth of Nations (portrait from the National Gallery of Scotland, via Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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"It's become the new cable," Andrew Lawrence writes about Netflix at the Guardian. He is expressing the theory that it's now Netflix's turn to suffer the fate of TV cable packages, which consumers have been cutting in favor of streaming, because, in his view, its content library has become stale, flat, and unprofitable. Ouch.

Lawrence was responding to Netflix's Tuesday evening announcement that the first quarter brought a loss of 200,000 subscribers and a projected second quarter loss of 2 million. About 700,000 of those were sacrificed when the company quit Russia as part of economic sanctions (some Russian subscribers are suing over this.)

Overnight, Netflix's shares dropped by 35%; having peaked at $700.99 on November 17, 2021, Thursday they closed around $218. One hedge fund sold off its 7% stake. Puncturing expectations of an ever-expanding future shrank Netflix's shares to something closer to their real value.

In the US especially, Netflix's trials may signal the beginning of a new industry phase. In Britain Netflix's biggest competitor remains the free-to-air BBC (for which we all must pay), ITV, and Channel 4, all of which commission world-class programming, plus, especially among younger people, YouTube. In the US, veteran screenwriter Ken Levine commented last week, broadcast networks are moving flagship content to their streaming arms. Eventually, he predicted, broadcast networks will "become the equivalent of the old neighborhood cineplex showing first run films a month after they've run everywhere else."

Another maybe-signal: on Thursday, Warner Bros Discovery (following a just-completed merger) announced it will close its month-old streaming platform CNN+ on April 30. At Axios, Sara Fischer reports that as of Tuesday the service had 150,000 subscribers, and that new owner WBD prefers to build HBO Max as a unified service.

I see this as a signal because the underlying question is: how many streaming services can people afford? Most of the cable cord-cutting Lawrence alluded to is for cost/value reasons.

Last week, Mark Sweney reported at the Guardian that due to the cost-of-living crisis the number of UK households that pay for at least one streaming service fell by 215,000 in the first quarter. Many still see Netflix as a "must-have"; first chopped are newer arrivals - Disney+ in particular. Amazon subscribers are also more likely to stay, perhaps because of Prime delivery. We'd guess also that the removal of pandemic restrictions coupled with warmer weather means people are going out more, which eats into both available time and entertainment budgets, and resuming commuters are rediscovering being time-stressed and cash-strapped.

Netflix has plans for recovery: it intends to create lower-priced subscription tiers part-subsidized by advertising and to crack down on the 100 million households it believes are sharing passwords instead of buying their own subs. The latter sounds like the next phase of the file-sharing wars; companies' reputations never came out well. In any event, it's unlikely Netflix will ever again see the adoption rates of the last ten years. It can put prices up for its ad-free tiers; it can (and almost certainly will at some point) pay artists less. In 2019, their outlays on talent led monopoly specialist Matt Stoller to call Amazon and Netflix predatory.

In order to build its own library of original content (the stuff Lawrence complained about), Netflix loaded up with as much as $16 billion in debt (at peak), apparently successfully. In January 2021 it announced an end to further borrowing because its subscriber revenues were now enough to support both operating costs and content investment. However, the company remains vulnerable to interest rate rises, given it still owes $14.5 billion.

At the Guardian, Alex Hern notes that Netflix, unlike competitors Amazon, Apple, and Disney, offers no news or sports, which people *will* pay to consume in real time, but adds that it has a gaming service for subscribers. Based on the complaints I see from subscribers, Netflix could also make its customers happier by improving its interface, particularly to aid content discovery.

The moment of peak streaming was always going to come. It's sooner because of the pandemic; it's later because the traditional broadcasters and media companies took so long to catch up with the technology companies who were the first movers.

For now, content is king, and all these companies hope their exclusive catalogues are sufficiently unique selling points to build their subscriber base. Anyone who was drawn to Netflix by Friends or The Office must now go elsewhere. Making new hits is *hard*. As Jeff Bezos recently learned, you can't make a new Game of Thrones by following a checklist.

Longer-term, the problem they all have is that no one cares about them. But we do care if every new series requires an extensive search and a new subscription. Even given apps like JustWatch, which find the best-priced option, piracy's single interface is far easier.

At a guess, there are three main future possibilities: the streaming services can consolidate, partner into something like cable packages, or open up content licensing and compete on pricing, features, absence of ads, interface design, and technical quality. Whatever its competitors do, Netflix's wild growth phase is over.

Illustrations: Lily Tomlin and Jane Fonda in the Netflix series Grace and Frankie.

net.wars does not accept guest posts, and does not accept payment, even in kind, to include links or "share resources". Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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In 1989, at 5-6 in the third and final set of the French Open women's singles final, 20-year-old Steffi Graf abruptly ran off-court. Soon afterwards, her opponent, Arantxa Sanchez-Vicario, completed one of the biggest upsets in the history of women's tennis.

Why did Graf do it? the press demanded to know in the post-march interview. When Graf finally (and slightly crankily) explained that she had her period. some journalists - Michael Mewshaw cites Italian Hall of Fame journalist Gianni Clerici for one - followed up by printing her (presumably imagined) menstrual cycle in the newspapers.

Mewshaw recounted this incident in June 2021 to illustrate the unpleasantness that can attend sports press conferences, in sympathy with Naomi Osaka. However, he could as easily have been writing about the commodification of athletes and their personal information. Graf got no benefit from journalists' prurient curiosity. But bettors, obsessive fans, and commentators could imagine they were being sold insight into her on-court performance. Ick.

This week, the Australian Science Academy launched a discussion paper on the use of athlete data in professional sport, chaired by Julia Powles and Toby Walsh. Powles and Walsh have also provided a summary at The Conversation.

The gist: the amount and variety of data collected about athletes has exploded using the justification of improving athletic performance and reducing injury risk. It's being collected and saved with little oversight and no clarity about how it's being used or who gets access to it; the overriding approach is to collect everything possible and save it in case a use is found. "It's rare for sports scientists and support staff to be able to account for it, and rarer still for sports governing bodies and athletes themselves," they write.

In the ASA's launch panel, Powles commented that athletes are "at the forefront of data gathering and monitoring", adding that such monitoring will eventually be extended to the rest of us as it filters from professional sports to junior sports, and onward from there.

Like Britain's intensively monitored children, athletes have little power to object: they have already poured years of their own and their family's resources into their obsession. Who would risk the chance of big wins to argue when their coach or team manager fits them with sensors tracking their sleep, heart rate, blood oxygenation, temperature, and muscle twitches and says it will help them? The field, Kathryn Henne observed is just an athlete's workplace.

In at least one case - the concussion in American football - data analysis has proved the risk to athletes. But, Powles noted, the report finds that it's really the aggregate counts that matter: how many meters you ran, not what your muscles were doing while you ran them. Much of the data being collected lies fallow, and no theory exists for testing its value.

Powles' particular concern is twofold. First, the report finds that the data is not flowing to sports scientists and others who really understand athletes (and therefore does not actually further the goal of helping them) but toward data scientists and other dedicated data-crunchers who have no expertise in sports science. Second, she deplores the resulting opportunity costs.

"What else aren't we spending money on?" she asked. Healthier environments and providing support are things we know work; why not pursue them instead of "technology dreams"? Her biggest surprise, she said, was discovering how cash-strapped most sports are. Even tennis: the stars make millions, but the lower ranks starve.

Professional athletes have always had to surrender aspects of their privacy in order to play their sport, beginning with the long, unpleasant history of gender testing, which began with men-only games in which competitors appeared nude, and continued in 1968 with requiring athletes wishing to compete in women's sports to prove they qualify. Then came anti-doping, which presumes everyone is guilty except when testing finds them innocent: urine tests under observation and blood tests for more sophisticated doping agents like EPO. In 2004, the anti-doping authorities initiated the "Whereabouts rule", which requires athletes to provide their location every day to facilitate no-notice out-of-competition testing. More recently, sporting authorities have begun collecting and storing blood and other parameters to populate the "athlete biological passport" with the idea that longitudinal profiling will highlight changes indicative of doping. An athlete who objects to any of this is likely to be publicly accused of cheating; sympathy is in short supply.

The report adds to those obvious invasions the ongoing blurring of the line between health data - which apparently is determined by the involvement of a doctor - and what the authors call "performance data". This was raised as an issue at the Privacy Health Summit back in 2014, where panelists noted that the range of sensitive data being collected by then-new Fitbits, sleep apps, and period trackers wasn't covered by the US health information law, HIPAA.

Athletes are the commodities in all this. It's not a big stretch to imagine the use of this data turning hostile, particularly as it extends to junior sports, where it can be notoriously difficult to pic future winners. Sports hold our interest because they provide the unexpected. Data-crunching by its nature tries to eliminate it. As Powles put it, "The story of sport is not just the runs and the goals." But that's what data can count.

Illustrations: Arantxa Sanchez-Vicario holding the 1989 French Open women's singles trophy.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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"This isn't over," we predicted in April 2021 when Amazon warehouse workers in Bessemer, Alabama voted against unionizing. And so it has proved: on April 1 workers at its Staten Island warehouse voted to join the Amazon Labor Union.

There will be more of this, and there needs to be. As much as people complain - often justifiably - about unions, no one individual can defend themselves and their rights in the face of the power of a giant company. Worse, as the largest companies continue to get bigger and the number of available employers shrinks, that power imbalance is still growing. Antitrust law can only help reopen the market to competition with smaller and newer businesses; organized labor and labor law are required to ensure fair treatment for workers (see also Amazon's warehouse injury rate, which is about double the industry average). Even the top class of Silicon Valley engineers have lost out; in 2015 Apple, Google, Adobe, and Intel were fined $415 million for operating a "no-poaching" cartel; Lucasfilm, Pixar, and Intuit settled earlier for a joint $20 million.

One lesson to take from this is that instead of treating multi-billionaires as symbols of success we should take the emergence of that level of wealth disparity as a bad sign.

In 1914, Henry Ford famously doubled wages for the factory workers building his cars. At Michigan Radio, Sarah Cwiek explains that it was a gamble intended to produce a better, more stable workforce. Cwiek cites University of California-Berkeley labor economist Harley Shaiken to knock on the head the notion that it was solely in order to expand the range of people who could afford to buy the cars - but that also was one of the benefits to his business.

The purveyors of "pay-with-data-and-watching-ads" services can't look forward to that sort of benefit. For one thing, as multi-sided markets their primary customers aren't us but advertisers who don't sell directly to the masses. For another, a company like Google or Facebook doesn't benefit directly from the increasing wealth of its users; it can collect their data either way. Even the companies like Amazon and Uber, that actually sell people things or services, see faster returns from squeezing both their customers and their third-party suppliers - which they can do because of their dominant positions.

On Twitter, Cory Doctorow has a long thread arguing that antitrust law also has a role to play in securing workers' rights against the hundreds of millions companies like Uber and DoorDash are pouring into lobbying for legislation that keeps their gig workers classed as "independent contractors" instead of employees with rights such as paid sick leave, health insurance, and workmen's compensation.

Doctorow's thread is based on analyzing two articles: a legal analysis by Marshall Steinbaum laying out the antitrust case against the gig economy platforms, which fail to deliver their promises of independence and control to workers. Steinbaum highlights the value of antitrust law to the self-employed, who rely on being able to work for many outlets. In what the law calls "vertical restraint", the platforms dictate prices to customers and require exclusivity - both the opposite of the benefits self-employment is supposed to deliver. Any freelance in any business knows that too-great dependence on one or two employers is dangerous; a single shift in personnel or company policy can threaten your ability to make rent. It is the joint operation of antitrust law and labor regulation that is necessary, Steinbaum writes: "...taking away their ability to exercise control in the absence of an employment relationship is a necessary condition for the success of any effort to curtail the gig economy and the threat it poses to worker power and to workers' welfare."

Doctorow goes on to add that using antitrust law in this way would open the way to requiring interoperability among platform apps, so that a driver could assess which platform would pay them the best and direct customers to that one. It's an idea with potential - but unfortunately it reminds me of Mark Huntley-James' story "Togetherness", which formed part of Tales of the Cybersalon - A New High Street. In it, a hapless customer trying to get a parcel delivery is shunted from app to app as the pickup shop keeps shifting to get a better deal. (The story, along with the rest of the Tales of the Cybersalon, will be published later this year.) I'm not sure that the urgent-lift-seeking customer experience will be enhanced by, "Sorry, luv, I can't take you unless you sign up for NewApp." However, Doctorow's main point stands.

All of this is yet another way that the big technology companies benefit from negative externalities - that is, the costs they impose on society at large. The content moderators who work for Facebook, Uber's and Lyft's drivers, the behind-the-scenes ghost-worker intermediaries that pass for "AI", Amazon's Amazon's time-crunched warehouse workers...together add up to a large economy of underpaid, stressed workers deliberately kept outside of standard employment contracts and workers' rights. Such a situation cannot be sustainable for a society.

Illustrations: Amazon warehouse workers protesting in Minnesota in 2018 (by Czar at Wikimedia, cc-by-2.0.)

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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"The airline probably needed to do a better job to make sure its pilots understood exactly what to do in case the aircraft was performing in a unique, unusual way, and how to get out of the problem," former National Transportation Safety Board chair Mark Rosenker tells CBS News in the recent documentary Downfall: The Case Against Boeing (directed by Rory Kennedy, written by Mark Bailey and Keven McAlester, and streaming on Netflix). He then downplays the risk to passengers: "Certainly in the United States they understand how to operate this aircraft."

Rosenker was speaking soon after the 2018 Lion Air crash.

Three oh-my-god wrong things here: the smug assumption that *of course* American personnel are more competent than their Indonesian counterparts (see also contemporaneous articles dissing Indonesia's airline safety record); the presumption that a Boeing aircraft is safe and the crash a non-recurring phenomenon; and the logical sequitur that it must be the pilot's fault. All that went largely unchallenged until the Ethiopian Airlines crash, 19 weeks later. Even then, numerous countries grounded the plane before the US finally followed suit - and even *then* it was ordered by the president, not the Federal Aviation Authority. The FAA's regulatory failure needs its own movie.

As we all now know, a faulty attack sensor sent bad data to the aircraft's Maneuvering Characteristics Augmentation System, software intended to stabilize the plane. The pilot did his best in an impossible situation. Even after that became clear, Boeing still blamed the crew for not turning off MCAS. The reason: Boeing didn't tell them it was there. In Congressional testimony, the hero of the Hudson, Captain Sully Sullenberger, summed it up thusly: "We shouldn't expect pilots to have to compensate for flawed designs."

This blame game was a betrayal. One reason aviation is so safe is that all sides have understood that every crash damages everyone. The industry therefore embraced extensive cross-collaboration in which everyone is open about the causes of failures and shares solutions. Blame destroys that culture.

All of this could be a worked example in Jessie Singer's recent book There Are No Accidents: The Deadly Rise of Injury and Disaster - Who Profits and Who Pays the Price. Of course unintended injuries happen, but calling them "accidents" removes culpability and stops us from thinking too much about larger causes. "Accident" means: "nothing to see here".

With the 737 MAX, as press articles suggested at the time and the documentary shows, that larger cause was the demise of Boeing's pride-of-America safety-first engineering culture, which rewarded employees for notifying problems. The rot began in 1997, when a merger meant new bosses from McDonnell Douglas executives arrived, and, former quality manager John Barnett tells the camera, "Everything you've learned for 30 years is now wrong." Value for shareholders replaced safety-first. Employees were thinned. Planes were made of cheaper materials. Headquarters left Seattle, where engineering was based, for Chicago. The culture of safety gave way to a culture of concealment.

Aviation learned early the importance of ergonomic design to avoid pilot error. This is where the documentary is damning: Boeing's own emails show the company knew pilots needed training for MCAS and never provided it, even when directly asked - by Lion Air itself, in 2017. Boeing executives mocked them for asking, even though its own risk assessments predicted a 737 MAX crash every fifteen years. Boeing bet it could fix, test, and implement MCAS before it caused more trouble. It was wrong.

A fully-loaded plane crash makes headlines and sparks protests and Congressional investigations. Most of the "accidents" Singer writes about, however - traffic crashes, house fires, falls, drownings, and the nearly 840,000 opioid deaths classed as "unintentional injury by drug poisoning" since 1999 (see also Alex Gibney's Crime of the Century) - near-invisibly kill in a statistical trickle. One such was her best friend, killed when a car hit his bike. All these are "accidents" caused by human error. But even with undercounts of everything from shootings to medical errors, the "accidents" were the third leading cause of death in the US in 2019, behind heart disease and "malignant neoplasms" (cancer), ahead of cerebrovascular disease, chronic lower respiratory disease, Alzheimers, and diabetes. We research all those *and( covid-19, which was number three in 2020. Why not "accidents"? (Note: this all skews American; other wealthy countries are safer.)

Singer's argument resonates because during my ten years as the in-house writer for RISCS, then-director Angela Sasse argued repeatedly that users will do the secure thing if it's the easiest path to follow, and "user errors" are often failed security policies. Sometimes, fixes seem tangential, such as lessening worker stress by hiring more staff, updating computer systems, or ensuring better work-life balance, which may improve security because tired, stressed workers make more mistakes.

Singer argues that the human errors that cause "accidents" are predictable and preventable, and surviving them is a "marker of privilege". Across the US, she finds poverty correlated with "accidental" death and wealth with safety. The pandemic made this explicit. But Singer reminds that the same forces frame people crossing the street as "jaywalkers" and blame workers killed on factory lines for not following posted rules. Each time the less powerful is framed as the cause of their own demise. And so it required that second 737 MAX crash and 157 more deaths to ground that plane.

Illustrations: The Boeing 737 MAX (Boeing).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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