An interesting battle between pro and anti-copyright industries in the US is being played out in submissions to the US Trade Representative’s Office (USTR) regarding whether South Africa should be stripped of its GSP (Generalized System of Preferences) status. According to USTR, “The GSP program provides for the duty-free importation of designated articles when imported […]

via Exporting the US “Fair Use” Doctrine to South Africa: The Battle Lines are Drawn — Hugh Stephens Blog

Where is Kim Jong-un When You Need Him: Google Pulls the Same Old Stuff on State AGs

Remember when Mississippi Attorney General Jim Hood sent Google a subpoena demanding answers to what Google was doing to comply with Google’s non prosecution agreement over selling illegal drugs that cost $500,000,000 of the shareholders’ money for the executives bad behavior?  And it just happened that “North Korea” hacked Sony’s studio unit right about that time and disclosed internal emails between Hood and film industry folk helping Hood fashion his subpoena?

hood2

And remember how if Google had answered any of those questions affirmatively that they’d probably all have gone to jail? And remember how Google sued Hood to keep from answering any of them in a long drawn out case that Google ultimately lost but never did answer the subpoena?  Remember that?  (Right after Eric Schmidt visited North Korea with Bill Richardson?  Just sayin’…)

ap_north_korea_eric_schmidt_google_thg_130109_wmain
That’s miss-iss-ippi…

So it should come as no surprise that creators across the copyright categories are given pause when challenged by Google because Google has an intimidating history of wielding power against even U.S. Attorneys and state attorneys general.  Thomas Catan, Did DOJ Apologize to Google for U.S. Attorney’s Comments?  Wall St. Journal (April 10, 2012); Redacted Transcript from Oral Argument on Defendant’s Motion for Summary Judgment and Rulings of the Court, DeKalb County Pension Fund v. Google Inc., Civ. Act. 6993, Delaware Chancery Court (Mar. 30, 2012) at 12; Brief of Amici Curiae Attorneys General for the Commonwealths of Kentucky, Massachusetts, and Pennsylvania, the States of Arizona, Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wisconsin, and the District of Columbia, Google Inc. v. James Hood III, Attorney General of the State of Mississippi, in His Official Capacity, Case No.15-60205 (5th Cir. June 29, 2015).

And, of course, there’s this report from the Huffington Post back when Eric Schmidt testified at the U.S. Senate:

SCHMIDT SAYS HE KNEW ABOUT GOOGLE STEERING FOLKS TO ILLEGAL CANADIAN DRUG SITES – News was actually made at [the] hearing. Ten gallon hat tip to Big John Cornyn, who asked Eric Schmidt about the $500 million settlement Google reached with the Justice Department over illegally advertising Canadian prescription drugs to Americans…. ‘Was it the result of oversight or inadvertence or were there some employees in the company that were doing this without your knowledge or…’ asked Cornyn (R-Texas). ‘Certainly not without my knowledge. Again, I have been advised — unfortunately, I’m not allowed to go into any of the details and I apologize, Senator, except to say that we’re very regretful and it was clearly a mistake’ [Schmidt said].”

Schmidt refused to answer questions under oath from Senator John Cornyn about the drug case in testimony in the Google Oversight hearing before the Senate Antitrust Subcommittee.  (Although later submitted carefully drafted responses in evidence for the record that contradicted his live testimony–no doubt after the lawyers figured out how to spin it.)

schmidt-senate
Eric Schmidt taking the 5th with David Drummond

Now they’re doing it again.  According to the Washington Post, Texas Attorney General Ken Paxton is leading the charge of state attorneys general against Google’s advertising monopoly:

Ken Paxton is no fan of Google. The Lone Star state’s Republican attorney general says he rarely even uses the company’s widely popular search engine, opting instead for rival services, because he has “always been concerned about tracking.”

But Paxton these days is more than a mere sideline skeptic: As one of the country’s most powerful law-enforcement officials, he’s forging ahead with a landmark investigation into Google’s decades-long dominance of the web, armed with the help of 50 other attorneys general, a stable of savvy experts that includes Google’s past foes, and a feeling that Washington for too long has turned a blind eye to some of Silicon Valley’s most troubling practices.

For now, the investigation, which Paxton and his peers announced in September, focuses on online advertising, responding to complaints that Google puts consumers and competitors at a disadvantage by controlling the exchanges where ads are bought and some of the most popular websites where they’re sold. It could result in tough punishments, Paxton signaled, if investigators determine Google broke the law.

And now the Wall Street Journal reports that:

Google is resisting efforts to surrender emails, text messages and other documents sought by state investigators probing possible anticompetitive practices, according to records and interviews.

That should sound familiar to Hood-watchers.  It’s just possible that the real downside to Google from allowing General Hood to force the production of the many documents he requested in his subpoena was that those documents–like the 4,000,000 documents Google produced in the drugs grand jury that it jealously guarded from being disclosed in the shareholder case–might have provided fuel to the shareholder lawsuit against Google over the drugs.  So it’s also possible that the real downside to Google from General Paxton and his colleagues is a brand new shareholder suit.  What’s worse than going to jail?  Going to jail AND having a billion dollar shareholder suit AND having to recast your earnings while you watch your stock tank.

Don’t think that Google won’t engage in intimidation tactics–we found out that Google’s top lawyer was doing his (weak) Tony Soprano impression over potential amicus briefs in the Oracle case before the Supreme Court.  Really?  Really?

According to Oracle’s head of government affairs:

Before we turn to the more than 30 amicus briefs filed in support of Oracle at the Supreme Court, we are obligated to highlight the conduct of Google’s head of Global Affairs and Chief Legal Officer, Kent Walker. Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle’s behalf to persuade them to stay silent.  We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts.

The chickens are coming home to roost at the Googleplex and North Korea won’t save them this time.  The epitaph on Texas Ranger Captain Bill McDonald’s grave says “No man in the wrong can stand up against a fellow that’s in the right and keeps on a-comin’.”

You think on that, Googlers.  Some people believe it like the Sun rising in the East.

Google’s Head Lawyer Accused of Intimidating Potential “Friends of the Court” in Oracle Case

This is one of the most astonishing lower lows, even for news from the Goolag.  According to Oracle’s head of government affairs:

Before we turn to the more than 30 amicus briefs filed in support of Oracle at the Supreme Court, we are obligated to highlight the conduct of Google’s head of Global Affairs and Chief Legal Officer, Kent Walker. Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle’s behalf to persuade them to stay silent.  We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts.

Amazing.  Read the post on Oracle’s site.

Must read by @SenThomTillis: ALI’s proposed Restatement of Copyrights has the potential to harm the creative industries

[Welcome Senator Tillis to shining sunlight on the astroturf “Restatement of Copyright”, which in our view is a epitoma suprema of Silicon Valley shillery.  The letter that Senator Tillis refers to is the December 3 letter his colleagues and he sent to the American Law Institute asking some questions about the proposed Restatement (which isn’t all that proposed anymore as the drafting is moving along briskly).  I gather from Senator Tillis’s op ed that he hasn’t gotten a reply yet.  Which must mean that the mumbletank in the Silicon Valley policy laundry hasn’t quite figured out how to reply.  But here’s the question that no one seems to have asked yet:  Who is paying for the Restatement of Copyright?  I don’t mean which non-profit accountability blocker wrote the check, I mean who is the ultimate donor who is the source of donor directed funds?]

With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.

It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.

Read the post on The Hill

You might also be interested in these MTP posts from 2018:

Shocker: Is Spotify Lawyer Leading “Scholarly” Project to Create Fake Treatise?

The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

A Look at Christopher Sprigman’s Recent Record

And from 2013 about the Copyright Principles Project, the precursor of the Restatement of Copyright:

The Copyright Principles Project: Selflessness, Valley Style Amongst A Dedicated Group of Likeminded People

 

The Singularity is Nigh: Amazon Fake Brand Personality Follows China’s Fake News Presenter with US Right of Publicity Infringement

Remember when China’s Xinhua News Agency debuted its first AI news presenter modeled after real Xinhua anchor Zhang Zhao (taking “fake news” to a whole new level)?

Not to be outdone, Amazon has taken fake presenters to a whole new level–fake endorsers!  No more celebrity endorsers with their inflated fees for endorsing products they may or may not care about.  Oh, no.  Amazon goes all the way to fake on a one way trip to Minority Report-land.  According to Venture Beat:

If Amazon has its way, companies will soon tap Amazon Web Services (AWS) en masse to create voices tailored to their brands. The Seattle tech giant today launched Brand Voice, a fully managed service within Amazon Polly, Amazon’s cloud service that converts text into lifelike speech, that pairs customers with Amazon engineers to build AI-generated voices representing certain personas….

But this is the most ridiculous part of the story:

Such technology has obvious commercial implications. Brand voices — such as Progressive’s Flo, who is played by actress and comedian Stephanie Courtney — are often tasked with recording phone trees for interactive voice response (IVR) systems or e-learning scripts for corporate training videos. Synthesization could boost actors’ productivity by cutting down on ancillary recordings and pick-ups (recording sessions to address mistakes, changes, or additions in voiceover scripts) while freeing them up to pursue creative work — and enabling them to collect residuals.

Right.  See, Amazon’s just trying to be helpful.  Because the actors will still “collect residuals”.  Really?  And if that’s even true, how long to you think that’s going to last?  It’s a rather selective fact choice anyway because the real question is how much longer until the actor is replaced altogether and how close can the fake AI actor get to the original before its a right of publicity case?

Even that issue will probably not be around for very long–the direction is to replace the actor altogether like Max Headroom.

So why is this man laughing at you?

Bezos Laughing

@telecomsense: Subsidizing the Platform Giants, Part 1: What If YouTube Paid for Content?

[This is an important post from Jonathan Lee (@telecomsense) that fills in some of the available data on just how much of YouTube is music and infers what that means for royalties.]

YouTube Is Primarily a Music Service

Given recent headlines criticizing YouTube’s algorithms for promoting home movies of pre-teens to pedophiles, violent videos to young children, as well as political extremism/bullying, you might have the idea that a lot of people watch these videos; they don’t. As this fascinating post–describing documents that surfaced in Viacom’s copyright suit against Google–explains, YouTube became popular not because of homemade videos, but because it embraced piracy.

The model of other people’s copyrighted videos driving user traffic remains the secret of YouTube’s success. Social media monitoring firm Pex recently calculated that less than 1% of YouTube’s videos–0.64%–were responsible for over 80% of video views. The majority of these videos are music videos.

Read the post on TelecomSense

@realrobcopeland: WSJ Reports Google Reveals YouTube Revenues of $15 billion of Value Gap, CEO Wants More–Where’s Ours?

Very insightful reporting from Rob Copeland at WSJ on Google’s revenue that culls out YouTube’s share of Google’s revenue–and boy are we getting hosed.

Alphabet said YouTube exceeded $15 billion in annual revenue in 2019. That would be on the lower end of projections for the video business, which has been the subject of educated guesses for years, and suggests that YouTube pulls in less than $8 a year from each of its 2 billion users. On a call with analysts, Mr. Pichai said he believes there is “significantly more room” to make money off YouTube’s users.

Read the post on the Wall Street Journal.

Given that YouTube is heavily dependent on music videos, it’s hard to explain how YouTube is dead last in royalty rates:

13407

And remember, according to BrandWatch, “[a]s of Jan 2020, the 93% of the most-watched videos [on YouTube] were music videos” and according to IFPI’s Music Consumer Insight Report, 47% of time spent by fans listening to on-demand music is on YouTube.  So it’s hard to explain why YouTube royalties are so low–and I would actually say that YouTube royalties are actually negative when you take into account the total cost of dealing with YouTube on DMCA, Content Management System and Content ID.

If you can afford it–remember the A2IM and Future of Music Coalition study that showed the main reason that independent’s don’t pursue their rights is because they can’t afford to.  Not a big leap that they definitely can’t afford to challenge Google.

A2IM FOMC Study Slide

It’s all a little hard to understand.  Even at 1% of YouTube revenue for publishing, comparable to the low public performance royalty at radio (distorted by the radio oligopoly), the songwriters alone should divide up $150,000,000–in a comparable deal.  Artists should be grossing well over that in line with historical ratios.  Given the outsized impact of music on YouTube’s revenue, shouldn’t the total industry-wide royalty payment be vastly more than $150,000,000?  Why do we get hosed so badly on YouTube revenues?  My bet is that it’s not at the negotiator level.  Those are some of the most talented negotiators in the world.

But they’re on a leash and Google knows it.  It’s always seemed to be a situation where eventually someone upstairs calls and says, thanks for the great work on YouTube negotiation–we’ll take it from here.  And you see the result.  Hard to explain any other way.

But it may help to explain why this person is laughing at us.

161102113717-susan-wojcicki-youtube-ceo-1280x720-1