@musictechpolicy: Just Say No: Will Spotify Still Be Seeking Forgiveness During Its IPO?     

While Spotify’s technocrats may be breathing a sigh of relief after the company’s most recent multimillion dollar settlement with songwriters, it is well to remember that the company is probably not anywhere close to out of the woods.  As others have learned the hard way, once you replace the rights of songwriters and artists with your own lust for IPO riches, the lawsuits can go on for a very long time indeed.  You would think that after nearly 20 years of massive infringement online, the obvious answer would suggest itself to the “get big fast” group:  Don’t use music you don’t have rights to use.

Yes, that’s right.  Just say no.

The typical reason given by interactive services about why their need to offer unlicensed music exceeds their desire to offer only licensed music is because of competitive pressure from YouTube.  Why do they feel this competitive pressure?  Because their investors tell them at every board meeting that they should feel it.  But let’s be clear–I doubt that Tim Cook gets Eddie Cue in a headlock over the issue over at the Infinite Loop.  If you agree, then that kind of narrows it down.

But entertain that idea for a moment, however ill founded.  Why is YouTube able to sustain this competitive position that supposedly makes otherwise licensed services soil themselves with fear of being undercut and overrun by YouTube?

That’s right–the “DMCA license”, or YouTube’s absurd use of the “safe harbors” granted to them under the U.S. Copyright Act which YouTube likes to think makes them bullet proof.  (Which is also what Cox Communications thought until they weren’t and is probably what Facebook thinks, too.)

So get that straight–some would say that The Golden Child (aka Spotify) is to be allowed to limp their way to the increasingly inexplicable goal of some kind of big financial reward (or “exit”) in an IPO of whatever stripe while we are all asked to look the other way and allow them the same shite arrangements that YouTube enforces through lobbying, litigation and unprecedented monopoly position (aka crony capitalism).

And you thought it was all about the “Value Gap”?  Apparently not.

Read the post on MusicTechPolicy

@ddayen: Google Gets a Seat on the Trump Transition Team

GOOGLE IS AMONG the many major corporations whose surrogates are getting key roles on Donald Trump’s transition team.

Joshua Wright has been put in charge of transition efforts at the influential Federal Trade Commission after pulling off the rare revolving-door quadruple-play, moving from Google-supported academic work to government – as an FTC commissioner – back to the Google gravy train and now back to the government.

The Intercept has documented how Wright, as a law professor at George Mason University, received Google funding for atleastfour academic papers, all of which supported Google’s position that it did not violate antitrust laws when it favored its own sites in search engine requests and restricted advertisers from running ads on competitors. George Mason received $762,000 in funding from Google from 2011 to 2013.

Wright then became an FTC commissioner in January 2013, agreeing to recuse himself from Google cases for two years, because of his Google-funded research. He lasted at the FTC until August 2015, returning to George Mason’s law school (now named after Antonin Scalia). But Wright also became an “of counsel” at Wilson Sonsini Goodrich & Rosati, Google’s main outside law firm. Wilson Sonsini has represented Google before the FTC.

Wright’s leadership position in the Trump FTC transition flips him back into government work.

Read the post on The Intercept

@illusionofmore: How the “Dancing Baby” Case Went Crazy

When will tech companies start taking responsibility for DMCA counter notices that are obviously wrong?

Last week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case.  The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18 months old when his mother Stephanie video-taped him dancing to Prince’s song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden.  Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case.  For starters, Ms. Lenz had, on her own, immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly “frighted” about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rights holder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

Read the post on David Newhoff’s blog The Illusion of More 

This is What Monopoly Looks Like: Google Opponent @AGJimHood Gets Sued By Google, Then by Lame Duck Obama DOJ

Remember when Mississippi’s popular Attorney General Jim Hood got sued by Google for having the temerity to try to enforce his state’s laws against an out of state corporation’s violations of the Google Drugs settlement when the Google Justice Department failed to act?

And not only did the Google Justice Department fail to act, the Attorney General of the United States apologized to Google and “muzzled” the only U.S. Attorney with the balls to go after Google.

So in the waning days of the Obama Administration, it shouldn’t be surprising that the Mountain View Mafia is taking care of the family business while they still control the levers of power.

Yes, General Hood just got his payback:   After years of trying to negotiate with the Google Justice Department, the State of Mississippi just got sued by the Google Justice Department–the awesome power of the one plaintiff in the U.S. that actually prints money to pay its legal bills.

This press release from General Hood tries to make lemonade out of lemons, but it’s pretty obvious–as the only Democrat holding elected office in Mississippi, party loyalty goes right out the window if you cross Google.

Attorney General Jim Hood Calls for Collaborative Effort in Continuing to Improve State Mental Health Services

A lawsuit filed today by the U.S. Department of Justice against the state of Mississippi provides the most meaningful opportunity yet for leaders to work together to continue to improve the state’s mental health system, Attorney General Jim Hood said today.

The federal government alleges that the state has violated the Americans with Disabilities Act by housing mentally ill individuals in institutions rather than community settings. The Department of Justice has filed similar lawsuits in about a dozen states alleging violations of the U.S. Supreme Court’s Olmstead decision.

“This lawsuit is a clarion call to all of us in state leadership to consider how we care for the least among us and how we can make it better,” Attorney General Hood said. “I see this litigation as a challenge to our Legislature to find the resources we need to continue to expand mental health services. This is a clear opportunity for our Legislature, mental health professionals, our faith-based community and all of us as Mississippians to come together to determine an effective way to address issues related to our mental health delivery system for years to come. It’s our obligation as Christians and people of faith to take care of those who are unable to take care of themselves. It’s time for each of us to move forward to better fulfill that fundamental responsibility.

“The state has made great progress in expanding community mental health programs, and we will continue to push for expansion. We have come a long way, but further work remains to be done.”

Attorney General Hood said his office has been negotiating with DOJ for several years in an effort to avoid litigation, which is expected to be a considerable cost to the state at a time when tax cuts have caused significant budget problems. However, the Attorney General refused to accept the federal government’s demands for a court-ordered consent decree that would bind the state to perpetual federal oversight.

Attorney General Hood had also hoped that good-faith efforts to address the state’s mental health needs might allay the federal government’s concerns. Thus, the Attorney General has encouraged lawmakers for years to allocate additional resources to the Department of Mental Health. The Legislature did provide some extra funding in previous sessions, but this year actually cut the Department’s budget by $8.3 million. Since 2008, the Department has been forced to eliminate approximately 500 mental health beds, in addition to 34 beds in 2016 because of the Legislature’s budget cuts and its refusal to provide additional money for mental health programs.

“Not only did the Department of Mental Health take a substantial budget hit, the Legislature did not agree to a request for more than $12 million for community mental health programs,” Attorney General Hood said. “That would have helped us continue our expansion of community-based mental health services and kept us moving in the right direction, as we’ve consistently been doing already.”

AG Jim Hood Press Release
8/11/16

Stephen Carlisle: You Can’t Make This Stuff Up! The Department of Justice v. ASCAP

Seems like very recently, June 24, 2016 to be exact, I posted about how the 2nd Circuit Court of Appeals ruled that despite there being no language that appeared in any statute, any congressional history, and any opinion of the U.S. Copyright Office, somehow section 301 of the Copyright Act didn’t really say what it plainly said. 1 In other words, they just made it up.

Well, sad to say, they’re at it again, except this time, it’s the U.S. Department of Justice.

At issue are ASCAP and BMI and the consent judgements 2 entered into with the U.S. Department of Justice way back in 1941. ASCAP and BMI are “performing rights societies” (PRO’s) that collectively license musical compositions for public performance. As Forbes Magazine explains:

“Each songwriter belongs to a PRO. That PRO is responsible for collecting royalties on the songwriter’s behalf when a composition is licensed, including licenses for digital stream services, use in public places, on radio stations, TV shows, etc. When a song has more than one writer, it’s common for PROs to share administration rights to the song specific to their individual writer member, meaning each party must license the song to be used on radio or offered to a digital music company for performance rights licensing. For example, a song with three co-writers might be equally administered by BMI, ASCAP and SESAC depending on the PRO affiliation of the writers.” 3

The benefit of this is that anyone who performs a lot of songs (say a radio station) has the cost and complexity of licensing music greatly reduced. Imagine if a radio station had to negotiate with each and every songwriter before they could play the songs! This should be a good thing, right?

Read the post on nova.edu

Stephen Carlisle: Court Of Appeals Re-Writes the Copyright Act for pre-72 Artists

On June 16, 2016, the Second Circuit Court of Appeals released a truly horrific opinion in the case of Capitol Records v. Vimeo. 1

The case involved the Plaintiffs, all record companies with ownership of pre-1972 sound recordings, which are not governed by Federal law but have been ruled as having performance rights in California and New York. 2 Vimeo, as Jonathan Bailey over at Plagiarism Today quipped is best known as “not You Tube,” 3 makes performances of these sound recordings by allowing users to upload videos containing these sound recordings. Not only does Vimeo make performances of these sound recordings, but distributes copies of them by allowing viewers to download the videos and copy them for free. 4

If I might steal a page from the Electronic Frontier Foundation, the decision is “dangerous” in every sense of the word. It threatens to undo the clear intention of Congress by making the most basic error that a Court can make: ignoring the “plain meaning” of a statute.

In sum, the Court:

  • Ruled that even though “Pre-1972 recordings have never been covered by the federal copyright” 5 they nevertheless are covered by federal copyright for the purposes of notice and takedown.
  • Ruled the “safe harbor” provisions of section 512 apply to pre-1972 sound recordings, even though section 301 clearly says they cannot.
  • Ignored the contrary opinion of the Copyright Office that said safe harbor did not apply to pre-1972 sound recordings.
  • Called the notice and takedown system “an augmentation of rights of copyright owners, 6 but when challenged on this position by an amicus curae that the system “shortchanged” copyright owners, contradicts itself and says “we have no way of knowing.” 7
  • Says workers at Vimeo can’t be held responsible for knowing when something is infringing because they are not “an expert in music or the law of copyright.” 8
  • Examples of Vimeo employees encouraging users to upload infringing content “cannot support a finding of…generalized encouragement of infringement.” 9

So what happened? To my reading, the Court decided the result that it wanted to achieve, then worked backward to try and muster up some reason why this was so, tossing away all logic and the plain meaning of section 301 in the process.

Read Forget What Congress Wrote, Forget What the Copyright Office Wrote; Court Of Appeals Re-Writes the Copyright Act on NOVA.edu