We are thrilled to report that composer and big band leader Maria Schneider has sued YouTube in the prelude to a class action. It’s worth pointing out that this is the first time since the Viacom case that the creative community has taken on the Leviathan of Mountain View. It’s also worth pointing out that Google won’t be able to buy their way out of this one the way they have the others, they can’t give a job to somebody’s child, it’s just not going to go the usual way that Google thrives on corruption. The complaint is really well-written (as we would expect) and tells the all-too-familiar compelling story of the struggle of artists to deal with YouTube’s “whack-a-mole” business model (or what Chris sometimes calls the “ennui of learned helplessness”:
This case is about copyright piracy. YouTube, the largest video-sharing website in the world, is replete with videos infringing on the rights of copyright holders. YouTube has facilitated and induced this hotbed of copyright infringement through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.
Plaintiffs and the Class are the ordinary creators of copyrighted works. They are denied any meaningful opportunity to prevent YouTube’s public display of works that infringe their copyrights—no matter how many times their works have previously been pirated on the platform. They are thus left behind by YouTube’s copyright enforcement system and instead are provided no meaningful ability to police the extensive infringement of their copyrighted work. These limitations are deliberate and designed to maximize YouTube’s (and its parents Google’s and Alphabet’s) focused but reckless drive for user volume and advertising revenue.
Moreover, the Plaintiffs and the Class are not only prevented from using any meaningful enforcement tool, but the system in place actually exacerbates the harms caused to them including in a manner that bars Defendants from the protections of any safe harbors under applicable copyright laws such as the Digital Millennium Copyright Act (“DMCA”).
As someone who grew up in San Francisco and wrote the book on the shady history of Silicon Valley — I simply can’t let this go. I mean, check it out: Turns out that the guy running to unseat Nancy Pelosi from “the left” is a corporate Silicon Valley astroturfer from the Electronic Frontier Foundation.
His name is Shahid Buttar.
Why is this significant? EFF is America’s oldest and most influential internet business lobby — an organization that has played a pivotal role in shaping the internet as it exists today. That privatized telecommunication system that’s owned by giant monopolies, powered by for-profit surveillance and influence ops, dominated by spies, and lacking any democratic oversight? Yep, that one. EFF is directly responsible for bringing it into being — and for making sure it stays privatized, shitty, and oligarchic.
As I wrote in my massive investigation into EFF’s shady history and it’s pro-Silicon Valley astroturf tricks for The Baffler a few years back, this organization has done an amazing job convincing us that it’s one of the good guys on the Internet — that it’s grassroots and on the side of the people. In reality, EFF has always been on the side of corporations, fighting against democratic control of Silicon Valley — from making sure ISPs could grow into giant monopolies to blowing up the first (and only) attempt to regulate Google’s surveillance business model back in 2004.
[Editor Charlie sez: The Oracle v. Google case is going to be the most important copyright case in a very, very long time. Oracle won the case on appeal twice and Google got the Supreme Court to review. The case is about two issues being copyright in software and whether Google’s taking of Oracle’s code is fair use and permissionless innovation. Because of the fair use argument, this is not just some battle of tech companies because no one knows better than us that Google will take any win on fair use and push it even farther.
So all artists, songwriters, photographers, film makers, authors–all of us–are in the same boat with Oracle on this point. Sure Oracle is a big company, but Google is an even bigger company with a trillion dollar market cap and Google is trying to roll over Oracle the same way they roll over us.
In a must read “friend of the court” brief, Helienne Lindvall, David Lowery, Blake Morgan and the Songwriters Guild of America make this case as independent artists, songwriters and labels all harmed by Google’s policies that are out of touch with the market starting with YouTube.
As Beggars Group Chairman Martin Mills put it, “[P]olicing the YouTubes of this world for infringing content is a herculean task, one beyond all but the largest of companies. For my community, the independents, it’s a game of whack-a-mole they can only lose.”
Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is, in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.
Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Amici have experienced, observed and believe that Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model.
This is an open letter regarding Google’s serious and abiding rejection of the law in Europe requiring payments for Google’s use of news clips. If you’re interested in being a signatory, details are here.
Google once again above the law?
This Thursday, October 24, should have been an important date in the history of the internet. With new European copyright protections entering into legal force in France, the press should for the first time be receiving fair compensation for the news content that it produces and is then spread on Google, Facebook and other major platforms.
As journalists we have fought long for this protection. Because quality news costs money to produce. Because the existing situation, in which Google enjoys most of the advertising revenue generated by the news that it rakes in without any payment, is untenable and has plunged the media into a crisis that is deepening each year.
The European Parliament voted for the copyright directive in March. The French parliament voted overwhelmingly in favour of enacting this copyright protection into French law in July, and this move is soon to be followed by parliaments in other EU states.
Yet the law risks being stripped of all meaning before it even comes into force.Slamming the door on any negotiation, Google has cynically offered the media a choice between two bad deals.
On the one hand, the media are asked to sign a blank cheque to Google renouncing any payment for the use of their news. This would mean accepting the slow death that is emptying newsrooms in Europe as it has already done in the United States.
On the other hand, media may refuse to do so, holding out for fair payment. But Google promises them a formidable form of retaliation: reducing the visibility of their news content to a bare minimum. No photos or text would appear when users search for their news. Just a snippet of a headline, no more.
That would be suicide for the press. Because before landing on any news site, most users are guided by the world’s dominant search engine: Google. Other search engines are just not big enough. News editors know this: they simply do not have the financial means to survive the resulting plunge in internet traffic.
Google is making a ridicule of the law. It is exploiting the subtleties of national law so as to thwart its spirit. Just as it has done with national fiscal laws so as to avoid paying its fair share of taxes on a global scale.It is a fresh insult to national and European sovereignty. Google wants to demonstrate the powerlessness of public authorities to regulate platforms, and force the media to bend to its will and accept a principle of receiving no payment for its news content.
Google prefers to paint itself as being magnanimous, boasting of the financing it proposes for innovative media projects, a diversion that amounts to crumbs from the table of a group that enjoys annual revenues of $140 billion.
Now that disinformation campaigns are infecting the internet and social networks, and independent journalism is under attack in several countries within the European Union, surrendering would be a catastrophe.
We call on the public decision-makers to fight back. They must strengthen the copyright laws to prevent Google from hijacking them, and roll out a battery of measures to stop Google from abusing its overwhelming dominance in the global search-engine market.
On our side, we are calling for public support and we will lead this fight because at stake is the survival of a diverse and independent media, and the strength of our democracy.
The first time I met with the French Minister of Culture, we met at their offices at the historic Palais-Royal complex which is also home to the Comédie-Française, the oldest active theater group in the world (founded in 1630). The French take their culture very seriously. One would do well to remember that in your dealings with them.
But of course, Google doesn’t give a rip about France, culture, French culture or the French Minister of Culture. And as predicted, Google are refusing to comply with the new European Copyright Directive as transposed into French law. (Once passed by the European Parliament, the Directive must be implemented at the nation state level–Google has no time for the nation state, either. The law goes into effect in France on October 24.)
Having suffered a spectacular loss in the European Parliament, the American multinational Internet company is now going to bring Silicon Valley justice to France.
Google said Wednesday it will not pay European media outlets for using their articles, pictures and videos in its searches in France, in a move that will undercut a new EU copyright law.
The tech giant said it would only display content in its search engine results and on Google News from media groups who had given their permission for it to be used for free.
The announcement, which will result in free content gaining higher visibility, comes after France became the first EU country to adopt the bloc’s wide-ranging copyright reform in July….Google had warned after the European Parliament vote that the change would “lead to legal uncertainty and will hurt Europe’s creative and digital economies.”
Of course what Google meant was that Google will do everything Google can to hurt Europe’s digital and creative communities because they’re pissed. Make no mistake, it’s not Google’s compliance with the law that is producing harm in France, it is Google’s refusal to comply that does so.
“A company, even a very large company, cannot get away with it when it decides to operate in France,” the French president insisted, during a visit to mark the centenary of the La Montagne newspaper in the city of Clermont-Ferrand in central France.
“We are going to start implementing the law,” he said.
According to Emmanuel Legrand’s excellent newsletter, Google is refusing to pay French news publishers for free-riding on their expensive news when delivered in Google’s massive monopoly on news aka search results:
French minister of culture FranckRiester was particularly incensed by Google’s decision. “I met with the head of Google News [Richard Gingras] this morning at the Ministry of Culture,” said Riester to journalists on the day Google made its decision public. “I sent him a very strong message about the need to build win-win partnerships with publishers and news agencies and journalists. The answer he gave me a few minutes later was stonewalling. This is unacceptable.”
Apparently this philistine from Silicon Valley not only has no respect for the law or the democratic process, he also has no respect for French culture. Be clear on this–the French law was passed in the European Parliament over Google’s unprecedented astroturf lobbying campaign AND it was passed at the national parliament IN FRANCE. The people were heard TWICE.
And if Mr. Gingras wasn’t insulting enough to Europeans and the French people from his cozy option-packed Silicon Valley enclave, he sure doesn’t know how to handle himself with the French minister of culture. Here’s a hot tip–the Peter Pan thing is not a good look outside the Googleplex paedocracy.
But understand this–as I predicted, Google has no intention of complying with the Copyright Directive and will dump as much money as it takes in legal fees, PR campaigns, fake news and astroturf until it has exhausted all possible claims, trials, appeals, lobbying, the works. Why?
Because THEY LOST AND THEY ARE PISSED. What you are about to see play out is what happens when the richest and most powerful media company in commercial history strikes back. What happens when the Silicon Valley company with control over the world’s newspapers says a people should know when they’re conquered. No blow is too low. And I keep saying, there’s only one thing they understand which is not fines. You can’t get fines big enough to hurt them.
What gets their attention is anything that affects their behavior–and that means injunctions or prison. They have no appreciation for anything we do to create music, movies, news, photographs, illustrations or any other work of authorship. For them, it’s there for the taking.
In a prescient 2008 book review (entitled “Google the Destroyer“) of Nicholas Carr’s The Google Enigma, antitrust scholar Jim DeLong gives an elegant explanation of Google’s thuggish behavior:
Carr’s Google Enigma made a familiar business strategy point: companies that provide one component of a system love to commoditize the other components, the complements to their own products, because that leaves more of the value of the total stack available for the commoditizer….Carr noted that Google is unusual because of the large number of products and services that can be complements to the search function, including basic production of content and its distribution, along with anything else that can be used to gather eyeballs for advertising. Google’s incentives to reduce the costs of complements so as to harvest more eyeballs to view advertising are immense….This point is indeed true, and so is an additional point. In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….
Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – [news,] books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.
So, on the whole, Google can continue to do well even if leaves providers of is complements gasping like fish on a beach.
What you’re seeing in France is the onset of gasping.