The Obama Department of Justice filed notice on November 11 that it intended to use the peoples money to appeal BMI Rate Court Judge Louis Stanton’s devastating ruling against the DOJ’s bizarre position on “100% licensing”. Professor Steve Winogradsky and I summarized the results of the ruling in this post. Aside from the terrible legal […]
Editor Charlie sez: Remember that the U.S. Department of Justice Antitrust Division came up with a very Googley fairy tale about 100% licensing? Remember how the DOJ lost that case in the BMI Rate Court?
Now the U.S. government is appealing the case from the BMI Rate Court to the 2nd Circuit Court of Appeals to try to stick it to songwriters even harder.
Obama like many political leaders has relied upon songwriters to shape his public persona and image. But Obama has also allowed his antitrust division to relentlessly persecute songwriters in ways that benefit Silicon Valley firms that are among his largest campaign donors.
Politicians, especially democratic politicians have always appealed to songwriters and performers for help campaigning and in shaping their images. But once the election is over we never see anything in return. Not even a “thank you.” But our long running abusive relationship with politicians seems to have hit a new low. It appears the Obama DOJ purposely waited until after all those celebrity/songwriter/performer campaign rallies were finished before they renewed their “100% licensing” legal crusade against songwriter non-profits BMI and ASCAP.
And I do mean “purposely waited.” Let me explain.
Google has been on a quest to limit copyright holders’ rights when it comes to the written word, even winning a landmark Supreme Court case declaring that its Google Books program, which digitizes hundreds of [tens of millions] books, was creating “transformative works,” and not infringing on authors’ copyright.
Google appears to have already placed friendly officials high places, while using its sway with academics to make its case with the FCC that your cable — and cable’s copyrights — should be free.
Starting in 2016, Google-related appointees began appearing across the Obama Administration. Carla Hayden, who recently took over at the Library of Congress, was President of the American Library Association, a huge recipient of Google funding (largely because of Google’s digital library programs). The Library of Congress, of course, is home to the US Copyright Office, and the Register of Copyrights — America’s highest ranking copryight official.
When the set-top box proposal came to Congress, they of course turned to the US Copyright Office for insight as to whether Google, among other set-top box companies, might be infringing on cable’s copyright.
Google appeared to immediately exert its power. Five copyright academics sent a letter to the US Copyright Office defending set-top boxes, and all five had at least some ties to Google.
Signer Peter Jazsi was a member of Google’s policy fellowship program, an advocate on IP issues, and a founder of the Digital Future Coalition, which includes several organizations funded by Google. Signer Pam Samuelson, a Berkeley School of Information professor, is on the board of several non-profits that receive significant grants from Google. Signer Annemarie Bridy was a scholar at Stanford University’s Center for Internet & Society, whose largest corporate benefactor is Google.
Many of those same groups pushed back when Register of Copyrights Maria Pallante said it was likely set-top devices could infringe on cable companies’ copyrights. One group, Public Knowledge, even claimed Pallante was in the pocket of cable and entertainment interests.
Weirdly, as soon as the new Library of Congress head (Hayden) was sworn in, Pallante lost her job as Register of Copyrights. She was first demoted and then resigned, opening up a space — conveniently — for a friendlier Registrar.
Gary Shapiro, the long-time head of the Consumer Electronics Association (now called the Consumer Technology Association), posted a comment to an Artist Rights Watch post about Maria Pallante’s sacking at the Copyright Office. [UPDATE from Charlie: By popular demand, we have posted Mr. Shapiro’s comment as its own post.] The consensus of the editors here is that we’re both flattered and concerned that Mr. Shapiro is posting comments on ARW on a Sunday night. That effort deserves to be taken seriously and replied to.
First of all–it should be noted that Mr. Shapiro’s post falls into that category of public statements that I’d call a “non-denial denial”.
It’s also important to note that Mr. Shapiro’s comment is all about Washington, lobbyists, who did what to whom, settling old scores among the coastal elites, who owns who, who paid off who to do what, and so on. The funniest line in his post was that Google isn’t a bully. Now that is hysterical for those who have dealt with YouTube or tried to get anything from a jihadi recruitment video to “Banging Up for Dummies” taken down from any Google property. Almost as funny as blaming the Sony hack on North Korea.
I fear that it is necessary to point out to Mr. Shapiro that this blog is Artist Rights Watch, not Lobbyist Rights Watch, or Let’s Watch the Lobbyists. This may come as a shock to someone like Mr. Shapiro who’s been at this for so long, but it is very, very likely that anyone who reads this blog neither has any idea who he is nor cares very much.
If our readers know of the Consumer Electronics Association, it’s likely that they know the organization from its membership in the MIC Coalition.
The MIC Coalition is, of course, the multi-trillion dollar lobbyists who are trying to screw what’s left of the songwriting community and stop artists from being paid fairly for radio airplay.
Or they might know the Consumer Electronics Association from its funding of the group Fight for the Future, which conducted a rather shadowy campaign against the Copyright Office, including making statements at odds with the facts in fundraising emails.
That statement in the box? It never happened.
Here’s an excerpt from Schedule B of the 2014 tax return for Center for Rights in Action which is parent to Fight for the Future:
And then there was the classic line from David Lowery addressed to Michael Petricone (Mr. Shapiro’s right hand at CEA) when both were on a panel at the Future of Music Coalition Summit Poobahery in Washington regarding CEA’s support of the ill-fated Internet Radio Fairness Act: “Stop making shit up, man!”
Those are probably the ways that the vast majority of people who read this blog would know of the Consumer Electronics Association.
It would be well for Mr. Shapiro to observe that 2016 has seen the future–more artists have stopped looking to lobbyists to solve their problems. Those lawsuits against Spotify, Rhapsody, Sirius XM, Pandora and even the U.S. Department of Justice? All brought by individual creators with some courageous lawyers who are willing to take a chance–because of the statutory damages and attorneys fees provisions of the Copyright Act without which those creators would have to take yet more bullying from Mr. Shapiro and his members, Google or otherwise.
So hopefully Mr. Shapiro will understand my reaction to this statement in his comment:
[T]hankfully we won many battles as new forms of technology created huge new opportunities for our members…and for content creators.
If the last 15 years of Mr. Shapiro’s travails are what constitutes his “help” in fighting “battles”, if what we have to show for his “winning” these “battles” is the absolute skewering of songwriters, artists, authors, record producers, film makers, and everyone who works in these endeavors–not to mention the biggest income transfer in commercial history from creators to new boss tech companies as well as the commoditization of art and artists–I have one reaction that I think will be shared by “content creators” who read this blog.
Please stop helping us.
The US elections will take place on November 8, 2016. On that day, US citizens will not only elect a new President of the United States but also renew Congress, as a total of 34 Senate seats (out of 100) and all 435 House of Representatives seats are up for election.
Music Week asked music industry professionals two questions: 1) What would be the three main copyright-related issues that you’d like to see fixed by the next President/Congress? And 2) And what is the likelihood that these issues will indeed be fixed during the next four years? Here are their answers.
Chris Castle, Attorney, author of the blog Music Technology Policy.
The top three issues to me would be somewhat US centric. Each has a minor fix and major fix. Two of the three relate to songwriters who are probably the most highly regulated workers in US history.
ASCAP and BMI consent decrees: The major fix would be to acknowledge that the consent decrees are about as anachronistic as the piano roll and for the government to simply dismiss these antitrust cases and allow ASCAP and BMI to issue complete licenses for streaming services. And as this new rule [of imposing “full work” licenses] was created out of whole cloth by the Obama administration through an extraordinarily Kafkaesque process, it should be possible for a new President to simply extinguish it.
The government needs to take responsibility for the administration of its compulsory mechanical license. This is more than just setting a fair rate (something the government forgot to do between 1909 and 1978); it also involves allowing songwriters the ability to conduct a royalty examination of music users and creating some mechanism for music users to lose the right to rely on the compulsory license when they abuse it or fail to license substantial numbers of songs. The current compulsory license is silent on both these issues. That’s the minor fix, but it would require Congress to act. But can you really blame a music user who abuses the system and simply doesn’t obtain compulsory licenses for thousands or hundreds of thousands of songs if there is no downside for failing to do so – except a federal copyright infringement lawsuit that only a handful of songwriters can afford to pursue?
DMCA reform: The problems we have with safe harbours are not uniformly applicable to all who could qualify for it. For example, the telecoms who came together in the Copyright Alert System are not really the problem. The problems can be attributed to one large player in the DMCA game – Google’s legacy businesses like Search and YouTube. Google routinely abuses the safe harbours both in the US and in Europe. There’s no reason to lump all safe harbour users together. Rather than abolish the safe harbour altogether, it makes more sense to ally our interests with those of the participants in the Copyright Alert System and exclude companies like Google from the safe harbour. In addition to the fundamental problem with the safe harbours as applied to Google, the ruling in the Lenz case that anyone sending a DMCA notice needs to essentially get a legal opinion on whether the offending use fits the fact-dependent definition of “fair use” at US law needs to be extinguished. The average artist has no idea what the court’s idea of “considering” fair use means and can’t afford to hire a lawyer to tell them.
David Lowery, songwriter/performer/activist
Clinton has subordinated copyright to tech policy. It’s right there in her tech platform. Google chairman Eric Schmidt is deeply involved in her campaign. Google will block meaningful reform by exerting influence on Clinton. No hope.
Google seems to know it has a problem here in Tennessee. That’s why it’s out in the community sponsoring musicians’ workshops, funding “digital inclusion fellowships,” and making big promises about wiring the city with low cost internet – even as local pastors question whether all of our citizens including those in minority communities will get access. And unions question the company’s push for shortcuts and special rules for its projects that will cost us local jobs.
But for music creators, this is all a sideshow, a corporate feel good effort designed to yank our gaze away from the basic facts – Google is putting all its power and might into killing legal reforms artists and songwriters need to survive.
But we still have a voice.
We must continue to urge Congress to reform the DMCA so the next generation of songwriters, artists, and performers can thrive. We must continue to look skeptically at Google’s effort to paper over issues and distract our institutions and communities from its unfair exploitation of our work.
And we must pursue all avenues and remedies in Congress and the courts – like the landmark win on songwriter royalties that rejected the Google-friendly DOJ’s bogus ruling on “fractional” licensing of our work.
Read the post in The Tennesseean