@jonathantaplin: Google Doesn’t Want What’s Best for Us

[Editor Charlie sez: Must read insight by Professor Jonathan Taplin on Google’s “surveillance capitalism”]

Google processes more than three billion search queries a day. It has altered our notions of privacy, tracking what we buy, what we search for online — and even our physical location at every moment of the day. Every business trying to reach mass-market consumer demand online knows that Google is the gatekeeper.

The fact that it is a monopoly, with an almost 90 percent share of the search advertising business, is a given that we have all come to accept. It’s Google’s world; we just live in it. So it matters how this company works — who it hires, who it fires and why.

When a company is dominant enough, it sets the tone for an entire era.

Read the post on The New York Times.

@davidclowery: Does Sensenbrenner Bill Mean It’s Time for a Grand Jury?

What appears to be a backdated NOI sent to the author. If this was intentionally backdated this is fraud. Note MRI is simply a third party that sent the notice on behalf of the service.  All legal responsibility rests with the service. 

Digital music services are trying to end songwriters ability to ever sue broadcasters and digital music services for copyright infringement with this bill.   In order to sue for copyright infringement you have to mount a case in a federal court.  Not your local district court.  This is extremely expensive.   I would estimate you need about $250,000 to effectively fight a case.   This bill takes away statutory penalties and legal fees, even when the songwriter prevails.  This makes it impossible for independent songwriters to exercise their legal rights. NAB Broadcasters and digital services like YouTube and Spotify can safely ignore songwriters, especially independent songwriters with no resources. Songwriters and publishers would have never been able to achieve the recent settlements against Spotify, without statutory penalties and legal fees.

So this may surprise you but I say “fine!” Take away our ability to mount copyright infringement lawsuits?  We still have plenty of other (sometimes much more severe) remedies available.  Most songwriters don’t really care about the money.  The royalties are pretty paltry to begin with.  This is really about the principle. This is about justice.

I’m no lawyer but the more I learn about the predicament of songwriters in the US, it feels like something more than just copyright infringement seems to be going on.  My layman’s reading of the situation makes me wonder if this isn’t exactly what the authors of the RICO laws had in mind.  [RICO stands for “Racketeer Influenced and Corrupt Organizations Act”.  Copyright infringement has long been one of the RICO “predicates”.]

Read the post on Hypebot

@davidclowery: Here’s How You Know Mic-Coalition “Shiv Act” Is About Screwing Songwriters Not Transparency — The Trichordist

Yesterday we detailed one of the main problems with the so-called “Transparency in Music Licensing and Ownership Act” or as Artist Rights Watch termed it “The Shiv Act.” The bill would take away from songwriters legal remedies like attorney’s fees and statutory damages. Thus making it virtually impossible for individual songwriters and small […]

via Here’s How You Know Mic-Coalition “Shiv Act” Is About Screwing Songwriters Not Transparency — The Trichordist

@musictechsolve: Don’t Believe the Astroturf: Yet More Regulations Won’t Help Songwriters or Small Business

By Chris Castle

“[Government] interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.”

James Madison, The Federalist Papers No. 44

There is a bill in Congress backed by the mega lobbying juggernaut called the MIC Coalition that would force songwriters and artists to “register” with the government in order to protect their rights from the biggest corporations in the world.  Failing to do so would take away the stick of statutory damages and an award of attorneys fees to songwriters or artists who are victorious in copyright infringement litigation.  Statutory damages and attorneys’ fees are the only real protection that the government gives these creators–the smallest of small businesses.

Why?  Because the government does virtually nothing to protect the rights of artists.  If it weren’t for statutory damages and attorneys’ fees there would be nothing between a creator and the ravages of mega-corporations.  Try calling a U.S. Attorney and asking them to prosecute a massive infringer.  If it hasn’t happened yet given the rampant piracy we’ve seen over the last 20 years now, it should tell you that it’s never going to happen with rich corporations that run roughshod over artist rights.

Yet songwriters in particular are some of the most highly regulated workers in America.  The government forces songwriters to license their work and sets the price they can license at–yet does nothing to enforce the “compulsory licenses” it imposes on songwriters.  Not only is the government in their lives at every turn, songwriters are poorly treated by their government.  Why?  One reason is that songwriters are among the smallest of small businesses and have little political clout.

That explains why the government imposes wage and price controls on songwriters through consent decrees and rate courts, but forgets to raise their wages for 70 years.  Can you imagine how that would go down if the government tried doing the same to auto workers or even the minimum wage?

The Rate that Time Forgot

When the government enacted the Fair Labor Standards Act in 1938, the government-mandated minimum statutory rate for songs was 2¢ per copy.  The hourly minimum wage was 25¢.   The government didn’t get around to raising the minimum statutory rate until 1978 when they raised it to from 2¢ to 2.75¢–the hourly minimum wage had then been raised from 25¢ to $2.65.  Shortly after, the government started indexing the minimum statutory rate from the rate that time forgot–had the government indexed to the rate of inflation from 1909 to 1978, the rate would have been closer to 13¢, a level it has yet to reach over 100 years after it was first set–today the rate is 9.1¢.

That’s a cruel mess.

What happens if a music user wants to avail themselves of the statutory license but simply refuses to pay the paltry royalty rate?  Nothing happens.  At least not unless the songwriter or their publisher sues for statutory damages and attorneys’ fees.  If you’ve followed the class action cases brought by David Lowery and Melissa Ferrick against Spotify, you’ll know that these cases only involve small songwriters.  Now there’s two publishers suing in Nashville–again, small publishers.

If these plaintiffs didn’t have the statutory damages and attorneys’ fees, do you think anyone in the government would care that the government’s compulsory license was being misused?

We’re From Washington and We’re Here to Help

Individual music users like Amazon, Google, Facebook and Spotify have about as much political clout as any notorious monopolists in history from Standard Oil to United Fruit.  As an organized lobbying group, these companies have the political clout of Big Tobacco, Big Pharma or Big Bombs.

These companies are all part of the MIC Coalition (or are members of other lobbying groups that are).  The MIC Coalition is all about this new “government list” that’s supposed to protect small business by crushing small business.

Here’s the pitch on the government database from the MIC Coalition:

The lack of an authoritative public database creates problems for venues and small businesses including restaurants, taverns, wineries, and hotels. For example, venues are declining to host live musicians rather than risk potential liability due to lack of up-to-date and actionable licensing information. The lack of a database is also a challenge for local broadcasters and digital music streaming services that rely on accurate copyright information to provide music to millions of consumers.

The assumption behind this legislation is that if the government just forced songwriters and artists to register in the government’s list, that music users would actually use that database.  If there’s one common theme in the recent lawsuits against digital services it is that the services don’t seem to use the available data–except to file millions of mass statutory licenses using a loophole in the Copyright Act claiming the users can’t find the copyright owner of the songs they use in the current Copyright Office records and seeking the government’s cover from lawsuits as if they were legitimate users.

If they put the same effort into finding the songwriters that they do into filing millions of mass NOIs, these services might not have so many problems.  And instead of removing the loophole, the government now floats this “government list” database idea to create an even more complicated loophole at taxpayer expense.

Reject the 11th Century Solution to a 21st Century Problem

It’s important to realize two key causes for the licensing mess the government has created through over-regulating songwriters, one of which is not entirely the government’s fault.

The Government Should Allow Statutory Licensing by ASCAP and BMI:  Because the government imposes a near-compulsory license through consent decrees against songwriters who are members of the two largest performing rights societies (ASCAP and BMI), a perfect opportunity to streamline the compulsory license is simply lost.  ASCAP and BMI are prohibited from engaging in compulsory licensing.  If these PROs were allowed to issue licenses for all the rights digital services need, that would be a meaningful step forward.

This would make ASCAP and BMI similar to SESAC which can issue both performance rights licenses and mechanical licenses after SESAC’s acquisition of the Harry Fox Agency.  SESAC is not subject to a consent decree.  The MIC Coalition didn’t like that either and complained to the Department of Justice seeking an investigation into stopping an idea that could work.

Require Music Users to Search the PRO Databases for Song Ownership before Serving Address Unknown Mass NOIs at Taxpayer Expense:  There is nothing in the “government list” bill that actually requires music users to search or document that they have searched this new database.  Current law requires a search of at least the Copyright Office records (which Amazon, Google, Pandora, Spotify, Microsoft, iHeart and others are supposedly doing already by the millions) and in some circumstances permits a search of the performing rights society databases as well (see 37 CFR Sec. 201.10 h/t Richard Perna).

It is a short leap to require music users to search the publicly available databases of ASCAP and BMI as well as the public records of the Copyright Office before serving millions of address unknown NOIs on the Copyright Office.  This will be particularly relevant given the recently announced voluntary cooperative effort between ASCAP and BMI to combine their repertory databases (which could include other PROs).  While there is some complaining from MIC Coalition members that ASCAP and BMI won’t indemnify users of their databases for the accuracy of the data.

That simply isn’t true for parties to the ASCAP and BMI licenses, which after all is why the databases are created in the first place.  Since ASCAP and BMI have no idea what use anyone may make of the data and if that use is even authorized by the song or recording owners, how could they possibly be expected to indemnify all users for any use in any country of any song?  Those databases are not a search engine.  Nobody else does that, especially not search engines, e.g., Google’s disclaimer:

Our Warranties and Disclaimers

We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS OR ADDITIONAL TERMS, NEITHER GOOGLE NOR ITS SUPPLIERS OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE THE SERVICES “AS IS”.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

If the government wants to tinker with the Rube Goldberg system of music licensing that it has imposed on songwriters, it could start by making these two changes before imposing a 21st Century version of William the Conqueror’s Domesday Book, the Great Survey of England conducted in 1088.

Oh, and if they’re so fired up about forcing people to do things through regulation, why not force music users to license, pay and account in compliance with the law.

 

@eriqgardner: Google Has a Big Canadian Problem — and It’s Getting Desperate

[Editor Charlie sez:  Now all of the Google shills prattling about “censorship” as an excuse for Google’s promotion and profit from massive piracy may start to make more sense.  Read the complaint filed by Google’s go-to law firm Quinn Emanuel.]

If one didn’t know any better, it would be reasonable to assume that Google has lost its mind. See a lawsuit filed Monday by the web giant….

On June 28, Google suffered a humongous legal defeat. There are losses and then there are losses, and this one was a super duper very bad loss for the Menlo Park, Calif.-based company. In Canada, the country’s highest court upheld an injunction ordering Google to remove certain websites ruled to be infringing intellectual property from its search engine. GLOBALLY.

The details of what led to this decision —  a small Canadian tech company called Equustek Solutions suing a onetime distributor for trademark infringement and misappropriation of trade secrets — are not particularly important. What is significant is that the case dealt with intellectual property and the possibility that Google might have to do more than pay lip service to piracy….

The company has filed a lawsuit in California federal court against Equustek.

“Google brings this action to prevent enforcement in the United States of a Canadian order that prohibits Google from publishing within the United States search result information about the contents of the internet,” states the introduction in the complaint….

A federal judge can now give Google what it requests by issuing a declaration that the injunction is unenforceable as inconsistent with the First Amendment, the Communications Decency Act and international comity, but does it matter? What a U.S. judge can’t do is stop a Canadian court from imposing sanctions on Google for failure to comply with the injunction.

That’s right–Google is going for the Backpage defense of choice against human trafficking–the Communications Decency Act.  This is why Google tells people in other countries that they want U.S. law to apply to all their operations.  Imagine if Standard Oil got away with that.  Or if Google had been charged with material support for terrorists.

Read the post on the Hollywood Reporter.

And watch Eric Schmidt swallow his tongue when confronted about Google’s support for Backpage at a Google “stockholders’ meeting”.

 

@kostasrossoglou: How Google’s Local Search Results Harm Consumers and Why the EU Acted

[On June 27], the European Commission announced that Google has breached antitrust rules by manipulating search results to favor its own vertical search services. In a landmark decision, the EU antitrust enforcement body hit Google with a record fine of €2.42 billion and gave Google a deadline of 90 days to end all discrimination against rival services. We applaud the European Commission’s dedication to the issue and commitment to restoring competition in online search to the benefit of consumers.

Google ordered to cease anticompetitive practices

Google has been found guilty of engaging in illegal conduct with the aim of promoting its vertical search services. Although the decision addresses comparison shopping services, the European Commission has also recognized that the same illegal behavior applies to other verticals, including local search. To this end, Google has been ordered to cease abusing its dominant general search engine to give advantages to its own specialized search products. A similar order has the potential to neutralize the harm Google has inflicted to online search and to effectively address anticompetitive concerns over local search.

Why local search matters

Local search is one of the most important human behaviors on the internet. It is the bridge between online research and offline commerce. Local searches – people looking for a pediatrician in Munich, a hotel in Barcelona or a Thai restaurant in Copenhagen – comprise the largest single category of search, representing roughly one third of total desktop search volume, and over one half of smartphone search volume. Between the defaults on iOS Safari and Android’s pre-installed Chrome, Google enjoys a 98% market share on smartphones.

The European Commission has been investigating Google for seven years following a number of complaints by both European and US companies, as well as consumer groups. Yelp has been a complainant in the case and we have been engaging with the EU authorities providing evidence of consumer harm in the market of local search.

Read the post on Yelp’s Policy Blog

@davidemery: Fake Hits

One of the internet’s core strengths is its ability to create communities on a scale that were never possible before. People from around the world can loosely group together around a topic remarkably easily. What used to be a niche interest can suddenly be shared with millions of other people.

This has obviously had something of an impact on the music industry….

These “fake hits” are fascinating because they are hits. They have millions upon millions of streams, coming from a huge global audience. And those streams equal a very significant revenue stream. For example, if you get on “Today’s Top Hits”, the biggest playlist on Spotify, you can expect to get at least a couple of hundred thousand streams a day – more if you’re near the top of the playlist – and that adds up to a decent amount of money if you do the math. From one playlist, on one platform.

But they’re still fake. Outside of the bubble, there seems to be very little resonance or connection. You can’t sell out shows based on big streaming numbers alone. These numbers represent attention and revenue, which is great, but the engagement is transitory, at least to the scale that the numbers would suggest. They’re the start of a fan’s journey with an artist rather then the end. The fans listening to tracks on Today’s Top Hits are listening to exactly that – they’re listening to the playlist, not the tracks. There’s nothing inherently wrong with this – in fact, quite the opposite, it’s an amazingly powerful new mode of music discovery. Where things come unstuck is where this new pattern of engagement – curation bubbles and echo chambers – slams into the traditional record industry.

Read the post on de-online