Even More Bad Faith from @RonWyden on Copyright Small Claims Legislation

Senator Ron Wyden is up to his old tricks–he’s got a secret hold on the CASE Act and is taking his usual ridiculous positions just to see if he can get away with it.  His day of reckoning has been coming for a long time and may have just arrived.  We don’t come to the Congress looking for a fight, but he does.  Maybe now he’ll get one.  Like any other bully, there’s only one way to make it stop.

Why would Senator Wyden care about the CASE Act?  Because Google does.  And why does Google care?  Because the CASE Act would provide meaningful relief to artists in all copyright categories caught up in DMCA hell, the ennui of learned helplessness brought on by the call and response of notice and counter notice that gives Google domain over vast numbers of copyrights from people who can’t afford to fight back in federal court.  And Google cannot have that.

So what is going on that prompted a kind and reasonable fellow like Copyright Alliance chief Keith Kupferschmid to accuse Senator Wyden of bad faith negotiations in the above tweet?   Quick recap:  Remember there’s new legislation working its way through Congress that would establish a new “small claims court” in the US called the CASE Act.  The immensely popular and bipartisan bill introduced by Rep. Hakim Jeffries, passed the House of Representatives on a 410-6 vote.  Yes, that’s right–410-6 in favor of the CASE Act.  (If you’re interested, you can download the CLE materials I put together for a recent bar association panel on the CASE Act.  This has a detailed explanation of holds, copy of the bills, and some other public materials.)

The legislation is now in the Senate which is the land of legislative secret holds and the kind of faux collegiality based on unanimous consent voting outside of the procedures we normally think of, especially floor votes.  At a high level, here’s how it works:  The Senate staff essentially emails around legislation and if no Senator objects to it, it is passed by unanimous consent.  Called “hotlining” this is pretty common in the Senate.  It does not require scheduling floor time and gets things done.

But see what they did there?  If just one–one–senator who objects to the hotlined legislation, it all grinds to a halt.  This is called placing a “hold” on the Senate version of a bill.  Which brings us to Senator Ron Wyden.

Senator Wyden has a history of placing holds on copyright legislation.  Most recently, he placed a hold on the Music Modernization Act in order to extract some further punishment for the old guys and dead cats who saw a glimmer of hope in the pre-72 part of the bill (Title II).  In what has become standard practice, the banshees from the Electronic Frontier Foundation and Public Knowledge swing into action with their Fear Uncertainty and Doubt campaigns in an effort to weaken copyright in any way they can get away with.

You know, these guys:

PK Google Shills

EFF Shill

EFF and Public Knowledge treated us to this kind of propaganda:

EFF Phone2Action

PK Phone2Action

Both EFF and Public Knowledge used the Phone2Action tool which features this permission set for Twitter that sure looks like it’s designed to create a bot net:

P2A TWITTTER annotated

So back to Senator Wyden.  EFF and Public Knowledge are not the only ones with ties to Google in particular and Big Tech in general.  Senator Wyden represents Oregon, but he is actually from Palo Alto in what was once called the  Santa Clara Valley, but is now generally called Silicon Valley.  And what does Silicon Valley need that Oregon has?

us-data-center-power-consumption

Huge honking amounts of electricity to run the massive data centers that power Big Tech and allows them to store fuflops of data about you and me.  Remember–it takes about as much electricity to run YouTube as it does to light the city of Cincinnati.  And unlike Teslas, etc., that run on the magical power of cherubic elves jogging on golden flywheels, Google needs the same electricity that comes out of the wall from whatever source it is derived.  Here’s some data on the data centers:

Data Centers

Needless to say, when you are groovier than thou Googlers, this little fact is distasteful and really jacks with your self-image.  Hence, Google seeks out “green” power as part of the mix–and here’s where Oregon comes in.  Courtesy of the taxpayer, i.e., you and me, Oregon happens to have a bunch of hydroelectric power from the Columbia and Snake Rivers Hydroelectric Project  that also extends into British Columbia.

Well, it’s not just courtesy of you and me, it’s also courtesy of the sacred lands given up by Native Americans for The Dalles Dam (Google’s main Oregon data center is located in The Dalles). The Dalles Dam has an interesting history with Oregon’s local Confederated Warm Springs Tribes and the Yakama Indians, too.  Thanks to the ever efficient Army Corps of Engineers and a bunch of federal taxpayer money, the Dalles Dam hoodwinked the tribes into giving up sacred land, which is now at the bottom of the reservoir, but that’s a story for another day.

heres-steam-shooting-out-of-the-dalles-data-center-in-oregon-as-its-cooling-down

According to The Oregonian:

Data centers have become one of Oregon’s biggest industries, with Google, Apple, Facebook and Amazon spending billions of dollars to buy and equip online storage facilities in rural parts of the state. They’re lured primarily by tax savings, which can shave tens of millions of dollars from a server farm’s annual operating cost.

Earlier this week, The Dalles city council and Wasco County commissioners voted to approve a package of “enterprise zone” tax breaks that exempts Google’s buildings and computers from local property taxes. The pact could save Google tens of millions of dollars or more over the 15-year life of the deal.

In exchange, Google will make an up-front payment of $1.2 million to local governments and $800,000 annually after that.

And who was formerly the chair of the Senate Energy & Commerce Committee?  You guessed it.

So back to Senator Wyden and his hold on the CASE Act (I won’t blame you if you’d prefer a shower right about now).  Remember that the CASE Act is the biggest threat to Google’s DMCA-based business model to come along.  So Wyden’s marching orders on the CASE Act is the same as it was on MMA and the same as it’s been for years.  Slow it down, weaken it, let the process grind it to bits if possible or extract so many concessions that it’s toothless or as toothless as it can be.

And that is why a good guy like Keith Kupferschmid is calling out Ron Wyden.  Because there’s #JustOne senator standing in the way of justice.

Stopping Google’s End Run: No Safe Harbor Privilege in Trade Agreements

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  Less discussed is the part of USMCA  that incorporates concepts of the failed DMCA from US law.  The chances of doing something to lessen the blow are dwindling now that the USMCA has passed the House of Representatives and moved on to the Senate.  We still have a chance to have an impact in the Senate, but time is going by.

Google’s USMCA Back Door

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

What is to be Done?

There’s a few ways to do this.  First, the simplest thing is to ask your Senators to make a statement for the record opposing the safe harbors being included in any trade deal, including USMCA.

Then, realize that significant legislation comes with something called “legislative history” which is a stand alone document that is a narrative explanation of what the Congress intended with the bill.  The legislative history for USMCA has not been finalized yet, but the clock is ticking.  (You can read the legislative history from the House of Representatives on the Music Modernization Act if you want to get an idea of what this will look like.  Both House and Senate issue these “reports”.)

Courts often review the legislative history when trying to “say what the law is” as a way of defining the intentions of Congress, sometimes years or decades after a particular bill was enacted into law.  It’s important that the USMCA legislative history reflect that Congress was not throwing the door open to Google to incorporate special privileges.

One other way is to require the U.S. Trade Representative to consult with relevant committees of Congress before ever doing this again.  This takes the back room dealing out of it, or at least limits it.

Creators should be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 “(Legal Remedies and Safe Harbors)”–and that’s the problem floating beneath the surface of USMCA.  Just at a time when not only has the copyright small claims court bill (CASE Act) passed overwhelmingly in the House, but we are also expecting the Copyright Office report on the DMCA safe harbor and we are starting to win victories over the value gap in Europe, we don’t need US trade agreements to perpetuate and expand the bad DMCA safe harbors (17 USC Sec. 512 et seq for those reading along at home).  Particularly when the world is moving past those privileges and US law is frozen in amber.

These concerns arise because the USMCA incorporates the highly controversial “DMCA safe harbor ”. This perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades just at a time when the CASE Act is about to give some relief, especially to photographers, film makers and music artists. Creators simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States especially if the US ends up negotiating a bilateral trade agreement with the UK after Brexit.

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.” The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.  The House of Representatives has recently passed the CASE Act to deal with this very problem and I expect the Senate will take up the CASE Act in the coming weeks.  It would be a bizarre twist for the Congress to plug one loophole only to allow another through the back door of trade agreements. (Not to mention the showdown over Google’s fair use loophole brewing in the Supreme Court in the Google v. Oracle case.)

Even if the US rolls back the DMCA safe harbor, it’s possible that we may be stuck with whatever safe harbor privilege that Google snuck into the USMCA as a stand alone regime.  That would be unacceptable.

Take Action

I encourage readers to call on your representatives and ask that they include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of Article 20.89 that perpetuates the unworkable DMCA regime.  The legislative history should also disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors. This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the exact opposite direction of the Article.

If you agree with these concerns, I recommend that you call the Senate switchboard at 202-224-3121 and tell your Senators that you want (1) the USMCA legislative history to place a limitation on incorporating DMCA in future trade deals and (2) Congress to require the US Trade Representative to consult with Congress.  And you want them to make a statement for the record opposing inserting safe harbors in any trade deals, including USMCA.

The Artist Rights Watch motto is “Never Take It for Granted that Justice Will Be Done.”  We have a chance to fix this–if not us, then who, if not now, then when?

 

Is Streaming a New Shadow Economy?

…there was lunch in the larger, first floor cafeteria where, in the corner, on a small stage there was a man, playing a guitar, who looked like an aging singer-songwriter Mae’s parents listened to.

“Is that….?”

“It is,” Annie said, not breaking her stride.  “There’s someone every day.   Musicians, comedians, writers….We book them a year ahead.  We have to fight them off.”

The singer-songwriter was signing passionately…but the vast majority of the cafeteria was paying little to no attention.

“I can’t imagine the budget for that, ” Mae said.

“Oh god, we don’t pay them.”

The Circle, by Dave Eggers

The New York Times teased their reporting today by Andy Newman on “canning” entitled “Making ends meet, five cents at a time.”

In New York City, a shadow economy has sprouted up around recyclable bottles and cans. Dionisia Rivera, above, sells the items she collects on the Upper East Side.

Our reporter takes you inside the world of “canning,” which provides a lifeline to thousands as stable low-skill jobs disappear in the city.

“Five cents a time”?  Really?  That’s at least 10x more than a Spotify stream.  Maybe we’re in the wrong business.  In fact, maybe we should be in the business of canning at Spotify’s palatial offices in the World Trade Center.

It’s kind of amazing that Spotify doesn’t have “Cans for Musicians” as part of their extensive recycling program.  You know, help them musos get their side hustle on.

It may be the only thing green about streaming.

Photo by Andrew Seng for the New York Times

Google Says Don’t Break the Internet–Again–this time to Oracle at SCOTUS

His Master had told him to call for help should a Wolf attack the flock, and the Villagers would drive it away. So now, though he had not seen anything that even looked like a Wolf, he ran toward the village shouting at the top of his voice, “Wolf! Wolf!”

As he expected, the Villagers who heard the cry dropped their work and ran in great excitement to the pasture. But when they got there they found the Boy doubled up with laughter at the trick he had played on them.

The Boy Who Cried Wolf, Aesop’s Fables No. 210

DBTI Lemley

Quick–how many times have you heard Google try to beat back challenges to their bad behavior with the old “Don’t Break the Internet” meme?  We’ve seen it many times, of course, but repetition doesn’t make it right and it definitely doesn’t make it true.

DBTI EFF
The EU Copyright Directive is a “Looming Catastrophe”

If there’s legislation, a lawsuit or some policy action that Google finds a commercial threat to their vast riches, especially including ill-gotten gains, it’s only a matter of time until they summon the academic and NGO chorus of Cassandras to bemoan, wail and rend garments over the single most important existential threat to humanity since the plagues of Egypt–breaking the Internet.

DBTI Orlowski

Breaking the Internet takes a few different forms including crushing innovation (or in the Googleplex, stealing everything that they can get away with).  And yet after a decade or more of this bunk, the Internet still trundles on, some how squeaking to get by despite Google’s breathless warnings.  Not to mention the multi, multi million dollar megaphone they use to broadcast their message far and wide from the halls of Congress to the children of Members of the European Parliament.

Google’s at it again, this time as part of the litigation involving its theft of copyrights from Oracle.  The problem for Google is that they can’t just run roughshod over Oracle the way they can practically everyone else, including governments.  We should be paying attention because for once Google may actually get punished in a way that hurts unlike the multi-billion fines in Europe that they absorb as a cost of doing business.

Here’s the story this time.  Google was getting their lunch eaten by Apple’s iPhone and needed to get Android up and running fast.  Google wanted to license a bunch of Java applications that were owned by Oracle.  You may say, what about Sun Microsystems which created Java?  Correct, but Oracle bought Sun so that’s how Oracle got involved.  And extra points if you remember who used to work at Sun Microsystems?  That’s right–UNCLE SUGAR!  Eric Schmidt his bad self.  Strange coincidence, yes?  The same Uncle Sugar who mysteriously resigned as Google’s executive chairman.  Uncle Sugar says, “Me, too!”  Boy we miss you Unk.

of-all-the-ceos-google-interviewed-eric-schmidt-was-the-only-one-that-had-been-to-burning-man-which-was-a-major-plus
The masked man says “Me, too!”

But I digress.  So Google supposedly creates some of its own Java-related software.  Let’s get this straight–Google could have developed their own platform with identical functions to Oracle’s Java as did Apple and Microsoft.  But–and this is really what I think the case is all about–Google made verbatim copies of several Java APIs that they couldn’t reverse engineer…sorry, I mean work around.  This all to avoid getting a license.  And you know how they argue that they got around those verbatim copies?

DBTI Shapiro

You guessed it–fair use.  Laughable, but no more laughable that Google’s whack a mole DMCA fake license practices they are fighting us on with their opposition to the CASE Act based on..you guessed it, fair use.  Breaking the Internet, etc.  It’s funny until you realize they are not kidding.

DBTI Internet Society

Google lost twice against Oracle in the case, but appealed its most recent failure to the Supreme Court of the United States, or “SCOTUS” as it’s known.  So Google’s big strong line in their papers is this:

Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications….[If Google loses the case, the ruling] will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.

Yep…law and order every time, marshal.  Google wants to wrap itself in the flag of those plucky “developers” who are just incapable of speaking for themselves so Google must do it for them as well as truth, justice and the American Way.  This is about as believable as Google positioning themselves to be on the side of artists because they paid some YouTubers to make propaganda against the European Copyright Directive.

censorship_square_of_doom1

Will innovation survive?  Will the Internet be broken?  Or did the boy cry wolf one too many times?  Will justice be done for once and done to Google?

Stay tuned.  There may be another Wreck-It Ralph sequel in the works .

 

@Apple’s Response to Spotify Lawfare

[One thing you can count on–the Netflix series to be based on the Spotify corporate communications book “Spotify Untold” will not include anything about how Spotify robbed songwriters blind and forced the Music Modernization Act shakedown.  Or Apple’s side of the story.  This is from Apple’s company blog “Addressing Spotify’s Claims.”  Snappy title, but you get the idea.  My dealings with Apple have always shown the company to operate at the highest level of integrity starting with the late Kevin Saul, a prince among men.]

“What Spotify is demanding is something very different. After using the App Store for years to dramatically grow their business, Spotify seeks to keep all the benefits of the App Store ecosystem — including the substantial revenue that they draw from the App Store’s customers — without making any contributions to that marketplace. At the same time, they distribute the music you love while making ever-smaller contributions to the artists, musicians and songwriters who create it — even going so far as to take these creators to court.”

Read the post on Apple’s newsroom.

Press Release @TheJusticeDept : Two Computer Programmers Plead Guilty in Connection with Operating Two of the Biggest Illegal Movie and Television Show Streaming Services in the United States

A resident of Las Vegas, Nevada, pleaded guilty yesterday to multiple criminal copyright and money laundering charges related to his running of iStreamItAll, one of the biggest illegal television show and movie streaming services in the United States, and to his working as a computer programmer with co-defendants to help build Jetflicks, a similarly large illegal television show streaming service.  Today, a second defendant, who also resides in Las Vegas, pleaded guilty in the same court to a criminal copyright charge for his work as a computer programmer for Jetflicks.

Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division, U.S. Attorney G. Zachary Terwilliger of the Eastern District of Virginia and Assistant Director in Charge Timothy R. Slater of the FBI’s Washington Field Office made the announcement today.

Darryl Julius Polo, aka djppimp, 36, pleaded guilty yesterday in the U.S. District Court for the Eastern District of Virginia to one count of conspiracy to commit criminal copyright infringement, one count of criminal copyright infringement by distributing a copyrighted work being prepared for commercial distribution, one count of copyright infringement by reproduction or distribution, one count of copyright infringement by public performance and one count of money laundering.  In a separate proceeding today, co-defendant Luis Angel Villarino, 40, pleaded guilty to one count of conspiracy to commit copyright infringement.  Sentencing for both defendants will be before U.S. District Judge T.S. Ellis III of the Eastern District of Virginia, with Polo’s on March 13, 2020, and Villarino’s on March 20, 2020.

According to Polo’s plea agreement, Polo ran a site called iStreamItAll (ISIA), an online, subscription-based service headquartered in Las Vegas that permitted users to stream and download copyrighted television programs and movies without the permission of the relevant copyright owners.  Polo admitted that he reproduced tens of thousands of copyrighted television episodes and movies without authorization, and streamed and distributed the infringing programs to thousands of paid subscribers located throughout the U.S.  Specifically, Polo admitted that ISIA offered more than 118,479 different television episodes and 10,980 individual movies.  In fact, according to the plea agreement, ISIA had more content than Netflix, Hulu, Vudu and Amazon Prime, and Polo sent out emails to potential subscribers highlighting ISIA’s huge catalog of works and urging them to cancel those licensed services and subscribe to ISIA instead. 

According to Polo’s plea agreement, Polo obtained infringing television programs and movies from pirate sites around the world—including some of the globe’s biggest torrent and Usenet NZB sites specializing in infringing content—using various automated computer scripts that ran 24 hours a day, seven days a week.  Specifically, Polo used sophisticated computer programming to scour global pirate sites for new illegal content; to download, process, and store these works; and then make the shows and movies available on servers in Canada to ISIA subscribers for streaming and downloading.  Polo also admitted to running several other piracy services—including a Usenet NZB indexing site called SmackDownOnYou—and earning over $1 million from his piracy operations.

In addition, in Polo’s and Villarino’s plea agreements, they each admitted that they separately worked as computer programmers at Jetflicks, another online, subscription-based service headquartered in Las Vegas that permitted users to stream and, at times, download copyrighted television programs without the permission of the relevant copyright owners.  According to both plea agreements, Polo, Villarino and their co-conspirators at Jetflicks reproduced tens of thousands of copyrighted television episodes without authorization, and streamed and distributed the infringing programs to tens of thousands of paid subscribers located throughout the U.S.

Both Polo and Villarino also admitted that at Jetflicks they and their co-conspirators used automated software programs and other tools to locate, download, process and store illegal content, and then quickly make those television programs available on servers in the U.S. and Canada to Jetflicks subscribers for streaming and/or downloading.

In addition, as set forth in Polo’s and Villarino’s plea agreements, both Jetflicks and ISIA were not only available to subscribers over the internet but were specifically designed to work on many different types of devices, platforms and software including myriad varieties of computer operating systems, smartphones, tablets, smart televisions, video game consoles, digital media players, set-top boxes and web browsers.

The other defendants in the case are scheduled to go to trial starting on Feb. 3, 2020.

The FBI’s Washington Field Office conducted the investigation.  Senior Counsel Matthew A. Lamberti of the Criminal Division’s Computer Crime and Intellectual Property Section (CCIPS) and Assistant U.S. Attorney Alexander P. Berrang of the Eastern District of Virginia and are prosecuting the case.  The CCIPS Cybercrime Lab provided significant assistance.

RIP Scott Timberg and GoFundMe Page

We were devastated to hear of the death of Scott Timberg, a good friend of the artist rights movement and gifted writer.  His most recent work the definitive Culture Crash: The Killing of the Creative Class will be a vital resource for advocates for many years to come.

A GoFundMe memorial and college fund page was set up by David Dailey for Scott’s wife and son.  We urge everyone to contribute something however small.