@naomielegant: The Internet Cloud [and @RonWyden] Has a Dirty Secret

[Editor Charlie sez:  Guess where some of Google’s data centers are located?  Senator Ron Wyden’s Oregon.  How’s that Green New Deal looking?]

The music video for “Despacito” set an Internet record in April 2018 when it became the first video to hit five billion views on YouTube. In the process, “Despacito” reached a less celebrated milestone: it burned as much energy as 40,000 U.S. homes use in a year.

Computer servers, which store website data and share it with other computers and mobile devices, create the magic of the virtual world. But every search, click, or streamed video sets several servers to work — a Google search for “Despacito” activates servers in six to eight data centers around the world — consuming very real energy resources.

Read the post on Fortune.

2013 Repost: An Answer for Mr. DeSantis: “Registration” and the Reformalization of Copyright Under Professor Samuelson’s Copyright Principles Project

[Some of you may have noticed that the U.S. Senate Committee on the Judiciary, Subcommittee on Intellectual Property is holding a hearing at the Senate on March 10 entitled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”.  Sounds like the witnesses would be from outside the U.S., right?  But the witness list is interesting because the only person not from the U.S. is Julia Reda, the former Pirate Party Member of the European Parliament.  Although you wouldn’t know about the Pirate Party fact from Ms. Reda’s Truth in Testimony biography.   We remember, of course, but it would be relevant for her to mention that affiliation given the topic.  Oh, well.  Recall that the Pirate Party frequently disclaimed any connection to the Pirate Bay.  There’s no connection, like the Pirate Bay’s co-founder Peter Sunde was just coincidentally running for the EU Commission Presidency on the Pirate Party slate at the time of his arrest and imprisonment in Sweden.  Also see one of the first posts on MusicTechPolicy, “But Do Their Eyes Glow: The Children of the Lessig God and the Viking Pirate Kings.

Another witness at the March hearing is Professor Pamela Samuelson.  We also remember Professor Samuelson’s 2013 testimony before the House Judiciary Committee regarding her Copyright Principles Project.  If you’ve been following the scandal regarding the American Law Institute’s Restatement of Copyright like Senator Tillis has, that name and that project may sound familiar–Professor Samuelson essentially is attempting to codify the Copyright Principles Project through the back door of the ALI Restatement.  This time with the assistance of Spotify’s lawyer Christopher Sprigman who recently launched a gratuitous savaging of David Lowery.

Sprigman Lowery
Pot, meet kettle

Back in 2013, I wrote a post on Music Tech Policy regarding an exchange between Samuelson and then-representative Ron DeSantis (now governor of Florida) regarding the issue of registration.  Remember, the Copyright Principles Project and Christopher Sprigman (and therefore Lessig) all are enamored of copyright registration (but never seem to address the expense to the Copyright Office).  I cynically believe that it is so that more people can get tripped up by failing to comply with the formalities such as we recently saw in the Woody Guthrie case which has a mind numbing reliance on flaws in the Luddite last-century formalities of the 1909 Copyright Act that was in effect for “This Land is Your Land.”

If you want to get the context of this reblog, you should read David Lowery’s post in Politico that came out a couple days before Samuelson’s 2013 testimony and featured prominently at the hearing.]

A question came up regarding copyright registration at the May 16, 2013 House IP Subcommittee hearing featuring Professor Pamela Samuelson.  Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at schools such as Fordham, American University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.

I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum.  The Samuelson Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”.  Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google.  This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.

The reason that Professor Samuelson was testifying before the IP Subcommittee is that she formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act.  As Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at the 2013 hearing, the CPP was convened by Professor Samuelson with one principal qualification for membership:  That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”).

In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform.”  The white paper has a list of those “convened” and based on the testimony of attorney Baumgarten and other information, there was little broad consensus about many of the “principles” but everyone was very polite to each other (as one might expect given that no one whose livelihood was at stake seemed to be included in the FOP “social network”).  The flaws of composition and conflict of interest in CPP is discussed elsewhere on MTP.

I mention the formation of the social network in relation to the (second) failed attempt to pass an “orphan works” law in the US for a reason.  This post is limited to the “reformalization” of copyright advocated by the Copyright Principles Project and the inevitable interaction of that new registration requirement with the orphan works issue.  It is well to remember actively that the word “registration” in the white paper has a special meaning, and not the meaning that we currently attach to a copyright registration, or even the meaning attached to copyright registration under the 1909 Copyright Act.  Although the word “registration” is the same in the past and current law and the white paper, the meaning is quite different.

Professor Samuelson described it to the committee as “rethinking registration in a way that will take advantage of the opportunities of the new information technology environment.”   We’ll come back to this–for now, realize that it is the intention of the CPP to use the “new information technology environment” to give effect to this new registration requirement.  That is, to burden creators, not to help locate creators.  The witnesses were asked what had changed since their 2010 paper, and they all mentioned cloud computing and the proliferation of devices.  None of them mentioned The Death of Privacy.  The Death of Privacy should make it easier than ever to track down a creator to ask their permission to use their works.

This was never discussed.

When combined with the orphan works recommendation advocated by the CPP, the concept of registration as described in the white paper seems designed to create a new class of works available for mass exploitation: works that are not registered, even without regard to whether the author could otherwise be found.  These unregistered works may or may not be true “orphans” in the sense that the author or owner cannot be found after looking in the right place; rather, the work is simply not registered for some reason known only to the creator.

This approach changes the default from the “get a license” requirement on the user, to a new “chase a license” burden on the creator.

There was a 6th witness at the hearing–one that was not actually present, but whose presence was felt by all concerned.  David Lowery had published an op-ed at Politico.com in the days prior to the hearing and it seemed that many of the Members of the IP Subcommittee had read it carefully.  Then Ranking Member Mel Watt even entered the Lowery post into the committee’s record.  David critiqued the CPP white paper and specifically called out this registration proposal.

When Representative DeSantis asked Professor Samuelson a direct question regarding registration based on the Lowery piece in Politico, I regret to say that the transcript reflects that she answered a different question, leaving many with the impression that David got it wrong (emphasis mine):

MR. DESANTIS

There was this article, I think it was in Politico, and it was a musician, he basically said that if some of what you were advocating was adopted that an individual could post a photo online, like a family photo that wasn’t registered [as defined in the white paper] and you could have a user just take that and use it for their commercial gain.  Do you agree, is that true?

PROFESSOR SAMUELSON

No I don’t believe that’s true at all.

MR. DESANTIS

Why not?

PROFESSOR SAMUELSON

Because one of the things we made very clear was that to the extent that someone is commercializing something that someone posts online that’s actually an activity that copyright law would apply to.  I think that’s very clear from our report, especially the discussion about commercial harm.

Note that Professor Samuelson did not answer the question that was asked.  Representative DeSantis, referring to the Lowery op-ed, correctly asked if a family photo was not registered as advocated by the CPP could that photo be exploited commercially by a “user”.  (A “user” could include Google.)

Professor Samuelson’s response did not address the “registration issue” at all, merely that the commercial use of a family photo would be subject to the copyright law.    Which, of course, would always be true.  Or at least one would hope so.

David Lowery’s point was that if he failed to register a family photo under the registration regime contemplated by the CPP, his rights to stop even a commercial exploitation would be reduced under that regime.  As it is burdensome to register family photos (if that would even be permitted under the CPP regime), it is more likely that such works would be exploited.  (This relates to the CPP concepts of “commercial value” and the “commercially dead” as we will see.)

As I think can be demonstrated and that you will see in later installments of this post, David Lowery got it right.

I wish I could say that there was some special insight that Mr. Lowery brought to the issue, but frankly this registration “gotcha” that’s in the white paper has been around for quite some time, certainly since the 2008 attempt to orphan works.  It’s kind of old news, so it’s surprising that the CPP is making another attempt to push it over the wall.

It was criticized in 2008 and has been criticized by a variety of creators on at least two continents (e.g., Stop43 in the UK).  It was extensively criticized by Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog last year.  It was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008.  It has been criticized in the current orphan works inquiry at the U.S. Copyright Office.

And it will be criticized in this post although I claim to bring no special insight, either.  The problems with reformalization are obvious and the result is easily anticipated–it is a system seemingly designed to create orphans, not to prevent them.  And create them on a grand scale in the millions of works.

We have to assume that it was this harsh reality that Representative DeSantis wanted the IP Subcommittee to discuss with the disinfectant of sunlight.

 

@margarethmcgill: Oracle counters Google’s innovation claims in Supreme Court fight

Oracle pushed back Wednesday against Google’s claims that the survival of software innovation rests on their long-running copyright battle, arguing an Oracle victory will ensure software makers enjoy copyright protections.

Why it matters: The Supreme Court is considering key questions related to software copyright and fair use — with billions of dollars in damages in the balance.

Read the post on Axios

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.

We’re All in it Together: @USSupreme_Court Friend of Court Brief in Google v. Oracle by @helienne, @davidclowery, @theblakemorgan and @SGAWrites

[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.

SCOTUS Brief Cover Page

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.”

Helienne, David, Blake and the SGA put that case squarely before the U.S. Supreme Court in this must-read friend of the court brief.]

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.

Read the brief on the Supreme Court of the United States.

 

@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

@loudmouthjulia: Creators finally know how much money YouTube makes, and they want more of it

[Editor Charlie sez:  Hey Susan, do you like apples?]

Alphabet CFO Ruth Porat told investors during an earnings call on Monday afternoon that YouTube pays out a majority of that advertising revenue to its creators. Although Porat wouldn’t say how much of the $15 billion goes to its content makers, she did specify those payouts belong to YouTube’s “content acquisition” costs, which run around $8.5 billion.

For people trying to make their living on YouTube, many feel like they don’t see nearly enough of that $8.5 billion. Top creators tend to earn the most ad revenue via higher rates — as long as their content is advertiser-friendly — because they generate a large number of views. Other advertising revenue then trickles down to the thousands upon thousands of creators who belong to YouTube’s Partner Program.

Many personalities have said they feel like they have to fight for advertising revenue, turning to subscription services like Patreon and signing brand deals since ad revenue isn’t reliable. Now, in the wake of major changes to YouTube’s advertising policies when it comes to content aimed at children (which may include popular video genres like gaming), advertising revenue looks even more fraught.

YouTube has long enticed creators to work on its platform with advertising revenue, but most creators didn’t know how much YouTube was making. Now they do — and, as one YouTube employee told The Verge, this feels like “a real seminal moment.”

Read the post on The Verge