Case Act Myths And Facts: EFF FUD Campaign

Ross Never Spied sm
I got your meme right here

ARW readers will remember the Google Shill List.  The Shill List was part of a brilliant strategy deployed by Oracle in their copyright infringement case against Google (still going on, see my Hypebot post on the case that is now going to get review by the U.S. Supreme Court before Lessig buddy Justice Kagan).

The Electronic Frontier Foundation takes a leading role in the Shill List, and Google acknowledges paying the EFF–for what, I will leave to your own judgement.

Google Shill EFF

Needless to say, the Electronic Frontier Foundation has come out swinging on Google’s FUD campaign (“Fear Uncertainty and Doubt” campaign) against the Copyright Small Claims board in the CASE Act.  (Remember, the CASE Act already passed the House of Representatives by a 410-6 vote earlier this session.)

Like all good FUD campaigns, the EFF bases their arguments on a fallacy:

EFF Phone2Action

This fallacy is sometimes called the Fallacy of Condition or the Causal Fallacy.  The Causal Fallacy conflates the necessary with the sufficient condition for a proposition to be true.  Here’s an example:  “I don’t know why the car won’t run; I just filled the gas tank.”  True, filling the gas tank is a necessary condition for the car to run, but it is not the sufficient condition alone that makes the car run.

In the EFF call to action, the word “could” is the giveaway.  It could leave regular Internet users on the hook for illegal stuff if they (1) get caught, (2) have no lawful excuse and (3) lose the case. The ad boils down to if you get caught doing illegal stuff, you could be fined.

Again with the memes.  Google beat this horse to death in opposing the European Copyright Directive earlier this year.  It didn’t work, they lost big, but they can’t let it go.  It’s like a having a Plan A with no Plan B.

Also notice that EFF uses the Phone2Action dialer which creates a legal bot net of Twitter accounts if you sign up for the Twitter version:

P2A TWITTTER annotated

Just another day in the swamp.

@variety: New Netflix Original to Tell the Story of Spotify’s Creation

Variety reports that the Spotify corpcomms book “Spotify Untold” is getting an order from Netflix for a series telling the story of Spotify’s “creation” featuring–guess who?  The levitational awesomeness of Daniel Ek.  No word on who will play David Lowery, Melissa Ferrick, Bob Gaudio or Brownlee Ferguson.  So Netflix–which screws songwriters–is promoting Spotify–which also screws songwriters.  And joins into Spotify’s lawfare campaign against Apple.

Perfect.

According to Variety, it’s not a question of astroturf writ large, it’s “a case of one disrupter [Netflix] telling the story of another [Spotify], Netflix has boarded a series about the creation of Spotify, the Swedish startup that’s become one of the world’s leading music services.”

So where’s what’s not mentioned in the Variety story on the Netflix deal is the Bergman-esque cheap shot at Apple the “authors” of “Spotify Untold” take at Steve Jobs on his death bed.  This one is just bizarre and is the kind of thing you could imagine oozing from the mind of Daniel Ek.  Maybe instead he should have been styled in a badminton game with Jobs.  (I drill down on the loose ends in this storyin another post.)

As reported in an earlier story about the book in Variety:

Barely a page into the book “Spotify Untold,” Swedish authors Jonas Leijonhufvud (pictured at left) and Sven Carlsson paint an odd scene. The year is 2010 and Spotify co-founder and CEO Daniel Ek is facing a succession of obstacles gaining entry into the U.S. market — or, more specifically, infiltrating the tightly-networked and often nepotistic to a fault music industry. As stress sets in, Ek becomes convinced that Apple’s Steve Jobs is calling his phone just to breathe deeply on the other end of the line, he purportedly confesses to a colleague.

Which aspect of this story got them a Netflix deal?  Was it the heavy breathing?  Or maybe the corporate funding.

There’s a saying, “don’t speak ill of the dead.”  That’s probably a bit superstitious for the Spotify Untold authors, but is good advice.  It’s unbecoming and Spotify should denounce it.  There’s also a saying, “don’t mock the afflicted,” so before you laugh hysterically at the story, realize that Steve Jobs caring enough about Daniel Ek to do such a thing (which assumes Steve knew Daniel Ek existed) was something that was very important to Daniel Ek

One thing I can tell you is that the Steve legend (a competing hero’s journey myth–a real one) has some choice tales of voice mails.  None of them involved heavy breathing, and Variety reports that the authors were not able to confirm this rather insulting and perverse allegation.

So why bring it up in their book or in press interviews?

When you negotiate with the 800 pound gorilla, the gorilla usually gets what it wants. Therefore exactly what it wants can be very important. In case you were wondering, from a trade policy perspective the 800 pound gorilla is the United States, the world’s largest economy and a largely open market, although increasingly less so […]

via Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

Where’s the Money? What’s My Name? @CopyrightOffice Unclaimed Royalties Symposium Update from @SGAWrites

[Editor Charlie sez:  Here’s an update from Songwriters Guild of America counsel Charles Sanders on last week’s Copyright Office Unclaimed Royalties Symposium in Washington, DC.  The Copyright Office is supposed to post a video of the event at some point.]

WASHINGTON, DC: I had the opportunity yesterday to attend and participate in, on behalf of the Songwriters Guild of America (SGA), the US Copyright Office “Kickoff” symposium on the eventual disposition of unmatched mechanical royalties that will soon be turned over to the Mechanical Licensing Collective under the new Music Modernization Act.

It was a good start to a healthy music community discussion, provided that next time around we delve into the more difficult issues that have been pointed out by the US and global music creator community, as voiced yesterday by SGA. These include the fact that the creator community –despite dozens of requests over the past several years by SGA (and other attendees such as indie publisher Monica Corton and MLC Chair Alissa Coleman)– still does not know how much money in unmatched royalties is actually being held by the digital delivery services. The amount is suspected to be in the hundreds of millions. SGA was the only participant to raise this issue yesterday, and received no response.

SGA also noted for the record from the podium that the data points identified in the legislation for mandatory inclusion in the Musical Works Database still do not include the NAMES OF COMPOSERS AND SONGWRITERS, a serious omission (to say the least) that SGA has respectfully asked the US Copyright Office to address as soon as possible. It was further noted that SGA President and hit songwriter Rick Carnes, and the SGA board of directors, support strong Copyright Office oversight regarding the activities of the MLC, especially concerning identification of unmatched royalties, an issue fraught with potential conflicts of interest within the MLC board.

Society of Composers and Lyricist (SCL) president and composer/arranger /condutor Ashley Irwin, and Songwriter/Recording Artist Michelle Shocked, joined SGA in making very powerful points concerning the need to ensure the voice of the individual, independent music creator is heard on all MLC issues. They also noted for the record that the abrupt decision of independent Songwriter/Artist/Activist David Lowery to leave his position as an MLC committee member was not addressed at the meeting, nor was the process by which he will be replaced a topic of discussion. “The independent music creator community wants and should have a voice in that process,” said Irwin. “Creators have suffered grievous harm at the hands of the digital distributors,” added Shocked, “and we deserve to be heard.” She received an ovation following those very pertinent remarks at the very end of the program.

STAY TUNED.

Letter on “Restatement of Copyright” to American Law Institute from @SenThomTillis @RepBenCline @RepMarthaRoby @RepTedDeutch and Rep. @HarleyRouda A Leading Cause of Pearl Clutching

A group of legislators have written a letter to the American Law Institute asking for an explanation of why the ALI finds it necessary to draft a “Restatement of Copyright Law”.  They have good reason–historically, the Restatement series has been a crystallization of “”black letter law” on common law subjects such as Property, Agency, and other largely judge-made law that evolved from the curia regis in ancient times.

Copyright is not one of those topics–in America it is a creature of statute (Microsoft Corp. v. Grey Computer, 910 F.Supp. 1077, 1084 (D.Md.1995).)  So since the people make the laws of copyright through their representatives in Congress, the Congress is well within their lane to enquire of the ALI what the purpose of the Restatement of Copyright is intended to be.

However, one need look no further than the impetus for the Restatement of Copyright to gain an explanation.  And that explanation reveals that from its inception, the Restatement of Copyright was intended to be a vehicle to make an end run around the people’s house.

And it was an end run by two familiar faces: Professors Pamela Samuelson and Christopher Sprigman.  The real advantage of examining the record on the Restatement project is that you can read the story in their own words.

What we don’t know is who is paying for the cost of the Restatement of Copyright–and that really should be answered, given who is involved and the approach.

Professor Samuelson wrote a letter on September 12, 2013 to Lance Liebman, the director of the American Law Institute pitching the project.  Her letter clearly identifies the project as “reform” and not simply a black letter law project:

ALI should undertake a copyright reform project…that articulates principles that courts, lawyers, and scholars can use without the need for legislation…[and] that would aid additional reform efforts.

And then we have Professor Sprigman’s pitch memo to ALI.   (Sprigman is a Lessig acolyte, represents Spotify against songwriters and who has engaged in fundamental challenges to the Copyright Act that have all failed so far.  ARW readers may recall his unprovoked vulgar tweet storm rants against David Lowery and Blake Morgan.)

I think it’s plain that a Restatement of Copyright…could be enormously influential, both in shaping the law that we have, and, perhaps, the reformed law that in the long term we will almost certainly need….I envision dividing principal responsibility for the subjects I have listed above among four Associate Reporters (I would like to name Profs. Neil Netanel (UCLA), Molly Van Houweling (Berkeley), Tony Reese (UC-Irvine) and Lydia Loren (Lewis & Clark) to these positions).

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

I think it’s fair to say that the rather desperate intention all along has been to use the Restatement to create a self-serving alternative to legislation, perhaps driven by Professor Samuelson’s largely failed testimony before the House Judiciary Committee in the last session. David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte.

Naturally, the pearl-clutching commenced in earnest when the Members of Congress sent their letter to the ALI.  Immediately, the Samuelson allies rallied around her to condemn the process without addressing the substance.  But this misses the real issue here that the Members politely left to the subtext.

The potential for astroturfing of the law itself is why the controversy should be of importance.  We don’t know who is paying for the Restatement but we do know who benefits.  Those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.

If the companies doing the astroturfing were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice.  And in a post-Cambridge Analytica world, these members of the professoriate may have backed the wrong horse.

@musicbizworld: MY GOAL IS TO HAVE 250,000 SONGS AND BE WORTH $1 BILLION.’

[Editor Charlie sez:  Insightful interview with great indie publisher Jon Singer of Spirit Music.]

I’ll never forget. My bankers who helped me, when we closed [the Spirit deal], said, ‘Singer, you’re a crazy motherfucker.’”

Spirit Music Group boss Jon Singer candidly recalls the moment his $350 million recapitalization and buyout of the independent publisher was confirmed.

The exec tells MBW that he was given 60 days to close the deal after he told the company’s former owners – a private equity firm – that he wanted to buy it.

Singer and business partner Ross Cameron subsequently pulled off one of the boldest management buyouts in recent music business history.

Read the post on Music Business Worldwide