Case Act Myths And Facts: EFF FUD Campaign

ARW readers will remember the Google Shill List.  The Shill List was part of a brilliant strategy deployed by Oracle in their copyright infringement case against Google (still going on, see my Hypebot post on the case that is now going to get review by the U.S. Supreme Court before Lessig buddy Justice Kagan).

The Electronic Frontier Foundation takes a leading role in the Shill List, and Google acknowledges paying the EFF–for what, I will leave to your own judgement.

Google Shill EFF

Needless to say, the Electronic Frontier Foundation has come out swinging on Google’s FUD campaign (“Fear Uncertainty and Doubt” campaign) against the Copyright Small Claims board in the CASE Act.  (Remember, the CASE Act already passed the House of Representatives by a 410-6 vote earlier this session.)

Like all good FUD campaigns, the EFF bases their arguments on a fallacy:

EFF Phone2Action

This fallacy is sometimes called the Fallacy of Condition or the Causal Fallacy.  The Causal Fallacy conflates the necessary with the sufficient condition for a proposition to be true.  Here’s an example:  “I don’t know why the car won’t run; I just filled the gas tank.”  True, filling the gas tank is a necessary condition for the car to run, but it is not the sufficient condition alone that makes the car run.

In the EFF call to action, the word “could” is the giveaway.  It could leave regular Internet users on the hook for illegal stuff if they (1) get caught, (2) have no lawful excuse and (3) lose the case. The ad boils down to if you get caught doing illegal stuff, you could be fined.

Again with the memes.  Google beat this horse to death in opposing the European Copyright Directive earlier this year.  It didn’t work, they lost big, but they can’t let it go.  It’s like a having a Plan A with no Plan B.

Also notice that EFF uses the Phone2Action dialer which creates a legal bot net of Twitter accounts if you sign up for the Twitter version:

P2A TWITTTER annotated

Just another day in the swamp.

@variety: New Netflix Original to Tell the Story of Spotify’s Creation

Variety reports that the Spotify corpcomms book “Spotify Untold” is getting an order from Netflix for a series telling the story of Spotify’s “creation” featuring–guess who?  The levitational awesomeness of Daniel Ek.  No word on who will play David Lowery, Melissa Ferrick, Bob Gaudio or Brownlee Ferguson.  So Netflix–which screws songwriters–is promoting Spotify–which also screws songwriters.  And joins into Spotify’s lawfare campaign against Apple.

Perfect.

According to Variety, it’s not a question of astroturf writ large, it’s “a case of one disrupter [Netflix] telling the story of another [Spotify], Netflix has boarded a series about the creation of Spotify, the Swedish startup that’s become one of the world’s leading music services.”

So where’s what’s not mentioned in the Variety story on the Netflix deal is the Bergman-esque cheap shot at Apple the “authors” of “Spotify Untold” take at Steve Jobs on his death bed.  This one is just bizarre and is the kind of thing you could imagine oozing from the mind of Daniel Ek.  Maybe instead he should have been styled in a badminton game with Jobs.  (I drill down on the loose ends in this storyin another post.)

As reported in an earlier story about the book in Variety:

Barely a page into the book “Spotify Untold,” Swedish authors Jonas Leijonhufvud (pictured at left) and Sven Carlsson paint an odd scene. The year is 2010 and Spotify co-founder and CEO Daniel Ek is facing a succession of obstacles gaining entry into the U.S. market — or, more specifically, infiltrating the tightly-networked and often nepotistic to a fault music industry. As stress sets in, Ek becomes convinced that Apple’s Steve Jobs is calling his phone just to breathe deeply on the other end of the line, he purportedly confesses to a colleague.

Which aspect of this story got them a Netflix deal?  Was it the heavy breathing?  Or maybe the corporate funding.

There’s a saying, “don’t speak ill of the dead.”  That’s probably a bit superstitious for the Spotify Untold authors, but is good advice.  It’s unbecoming and Spotify should denounce it.  There’s also a saying, “don’t mock the afflicted,” so before you laugh hysterically at the story, realize that Steve Jobs caring enough about Daniel Ek to do such a thing (which assumes Steve knew Daniel Ek existed) was something that was very important to Daniel Ek

One thing I can tell you is that the Steve legend (a competing hero’s journey myth–a real one) has some choice tales of voice mails.  None of them involved heavy breathing, and Variety reports that the authors were not able to confirm this rather insulting and perverse allegation.

So why bring it up in their book or in press interviews?

When you negotiate with the 800 pound gorilla, the gorilla usually gets what it wants. Therefore exactly what it wants can be very important. In case you were wondering, from a trade policy perspective the 800 pound gorilla is the United States, the world’s largest economy and a largely open market, although increasingly less so […]

via Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

Letter on “Restatement of Copyright” to American Law Institute from @SenThomTillis @RepBenCline @RepMarthaRoby @RepTedDeutch and Rep. @HarleyRouda A Leading Cause of Pearl Clutching

A group of legislators have written a letter to the American Law Institute asking for an explanation of why the ALI finds it necessary to draft a “Restatement of Copyright Law”.  They have good reason–historically, the Restatement series has been a crystallization of “”black letter law” on common law subjects such as Property, Agency, and other largely judge-made law that evolved from the curia regis in ancient times.

Copyright is not one of those topics–in America it is a creature of statute (Microsoft Corp. v. Grey Computer, 910 F.Supp. 1077, 1084 (D.Md.1995).)  So since the people make the laws of copyright through their representatives in Congress, the Congress is well within their lane to enquire of the ALI what the purpose of the Restatement of Copyright is intended to be.

However, one need look no further than the impetus for the Restatement of Copyright to gain an explanation.  And that explanation reveals that from its inception, the Restatement of Copyright was intended to be a vehicle to make an end run around the people’s house.

And it was an end run by two familiar faces: Professors Pamela Samuelson and Christopher Sprigman.  The real advantage of examining the record on the Restatement project is that you can read the story in their own words.

What we don’t know is who is paying for the cost of the Restatement of Copyright–and that really should be answered, given who is involved and the approach.

Professor Samuelson wrote a letter on September 12, 2013 to Lance Liebman, the director of the American Law Institute pitching the project.  Her letter clearly identifies the project as “reform” and not simply a black letter law project:

ALI should undertake a copyright reform project…that articulates principles that courts, lawyers, and scholars can use without the need for legislation…[and] that would aid additional reform efforts.

And then we have Professor Sprigman’s pitch memo to ALI.   (Sprigman is a Lessig acolyte, represents Spotify against songwriters and who has engaged in fundamental challenges to the Copyright Act that have all failed so far.  ARW readers may recall his unprovoked vulgar tweet storm rants against David Lowery and Blake Morgan.)

I think it’s plain that a Restatement of Copyright…could be enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need….I envision dividing principal responsibility for the subjects I have listed above among four Associate Reporters (I would like to name Profs. Neil Netanel (UCLA), Molly Van Houweling (Berkeley), Tony Reese (UC-Irvine) and Lydia Loren (Lewis & Clark) to these positions).

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

I think it’s fair to say that the rather desperate intention all along has been to use the Restatement to create a self-serving alternative to legislation, perhaps driven by Professor Samuelson’s largely failed testimony before the House Judiciary Committee in the last session. David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte.

Naturally, the pearl-clutching commenced in earnest when the Members of Congress sent their letter to the ALI.  Immediately, the Samuelson allies rallied around her to condemn the process without addressing the substance.  But this misses the real issue here that the Members politely left to the subtext.

The potential for astroturfing of the law itself is why the controversy should be of importance.  We don’t know who is paying for the Restatement but we do know who benefits.  Those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.

If the companies doing the astroturfing were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice.  And in a post-Cambridge Analytica world, these members of the professoriate may have backed the wrong horse.

Why Creators Should Care About Google v. Oracle in the Supreme Court

There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come:  Google v. Oracle.

[ARW readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion.  We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people.]

On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle.  But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.”  And when I say “Google”, I don’t really mean Google as a company.  I mean the insiders.  This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.

So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.

How did Google get sued by Oracle and not Sun?  According to Google’s SCOTUS brief (at 3):

Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.

Let’s not just blow past that statement.  That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights.  Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that.  Or said another way, 2+2=5.  And don’t you forget it.

You can see that Google would like to push that angle.

If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do.  That buyer then sues Google for those pre-acquisition infringements.  A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.

But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems.  As the amicus brief by the United States  tells us, one of the questions presented to SCOTUS is:

Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….

[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.

As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative.  Which is, of course, fair use.  Or was it a parody, I forget.

The brief by the United States disagrees, and so do I.

So let’s be clear:  This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can.  And then scream fair use.

You have to wonder why SCOTUS took this case.  I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.

 

MIC Coalition Filing Reveal: The Zombie Transparency in Music Licensing and Ownership Act

ARW readers will remember the horrific Transparency in Music Licensing and Ownership Act from the last Congress.  (See “The Transparency in Music Licensing and Ownership Act: The Domesday Book Meets A Unicorn“.)  Well, guess what–it’s not really dead!

MIC Coaltion Members 2019
MIC Coalition Members

The MIC Coalition cartel filed a comment with the Copyright Office that makes one thing clear–this rule making is going to be a scorched earth donnybrook of epic proportions.  The big reveal in the MIC Coaltion’s filing is based on this passage in the legislative history for the Music Modernization Act:

Testimony provided by Jim Griffin at the June 10, 2014 Committee hearing highlighted the need for more robust metadata to accompany the payment and distribution of music royalties. With millions of songs now available to subscribers worldwide, technology also has a role to play through digital fingerprinting of a sound recording. However, there is no reliable, public database to link sound recordings with their underlying musical works. Unmatched works routinely occur as a result of different spellings of artist names and song titles….Music metadata has more often been seen as a competitive advantage for the party that controls the database, rather than as a resource for building an industry on.

The entire concept of maintaining a static look up database of not only all songs in the history of recorded music, but also all sound recordings in the history of recorded music that can be queried in real time is really not that different than the Domesday Book–when William the Conquerer made a big list of all property, people and chickens in England in the “Great Survey” in 1086.  Like the Domesday Book, the “musical works database” will be full of mistakes due to the dynamic nature of the things it is purporting to count.

But the reveal is the heaping praise on the horrific Transparency in Music Licensing and Ownership Act which was designed to destroy the PRO system (just like the MIC Coalition):

In response to the Copyright Office recommendations, Representative Jim Sensenbrenner introduced the Transparency in Music Licensing and Ownership Act, H.R. 3350, in July of 2017, which was cosponsored by several members of the House Judiciary Committee. The bill would provide for a database, housed at and overseen by the U.S. Copyright Office, to aid businesses and establishments that publicly perform musical works and sound recordings in identifying and compensating the holders of rights in those works. 

Fasten your seatbelts, it’s going to be a bumpy night.

@kingthor: Personalization Has Failed Us

Behind every “you might also like” recommendation is an algorithm built on data you’ve provided. This includes the obvious stuff, like your viewing or listening history, but it may also factor in your age, location or gender. These algorithms are all a little different.  Spotify builds its recommendations by logging what you listen to, funneling that through a genre classification system, then pulling in songs from playlists from other users with similar tastes.

Spotify’s complicated algorithm struggles to push the boundaries of your own habits. Listen to a track from Nine Inch Nails and you’ll get more Nine Inch Nails on your algorithm-generated Discover Weekly playlist. Maybe it’ll toss in something similar sounding, but it’s just as likely to throw in a random pop song from the ’90s. If you go too off course and listen to a jazz playlist followed by some metal, the whole thing breaks down and you’re served up a nonsensical playlist for a week. Even in the best-case scenario, the experience is transactional, and without the thrill of self-discovery — part of the appeal of seeking out new media — the recommendations feel cold.

Read the post on the New York Times Privacy Project