Tag: Google

@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.

MIC Coaltion

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.

hesse

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.

 

@andreworlowski: Google goes home to Cali to overturn Canada’s worldwide search result ban

What should govern the behavior of huge multinationals like Google: the law Google makes for itself, or the laws that people make?

The former view has been dubbed cyber-libertarianism. In 2015, Canadian judges delivered that particular school of thought a blow, in the case of Equustek Solutions, a network equipment manufacturer in British Columbia, Canada.

The year before, Google was told by a Canadian court to remove search results that linked to knockoff versions of Equustek’s products. The web giant offered to strip the links from its Canadian site but that wasn’t enough for Equustek, which wanted them deleted worldwide.

The California internet giant eventually complied, removing scores of links worldwide, but was upset it had to remove the links globally, claiming this censorship had little effect on Equustek’s rivals. Google appealed in 2015, and lost.

In 2017, the internet goliath went to Canada’s Supreme Court to end the Earth-wide blackout, arguing the Canadian judgment clashed with free-speech protections in other nations. It lost again. The Supremes said it was purely theoretical that the removal of the links would trample on other countries’ laws. If a jurisdiction outside Canada is unhappy with the Canadian court’s decision then that jurisdiction should speak up so it can be considered by Canada’s Supremes, Google was told.

And so on Monday this week, Google asked a California court to decide whether or not the Canadian case’s outcome runs counter to America’s First Amendment. In effect, Google is asking US judges to reject their Canadian counterparts’ findings, allowing it to challenge the search result ban.

Read the post on The Register

@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”.

 

@andreworlowski: Trump meets Google – exclusive transcript

schmidt_maga_red_2

After meeting Kanye West, President-elect Trump will meet Google and other Silicon Valley leaders today. We’ve imagined how the conversation might go.

RUSHED TRANSCRIPT

TRUMP: So. Peter tells me you’re the smartest guys in America. How do you like the furniture?

PAGE: Very nice Mr President Elect.

TRUMP: Where’s the Russian?

PAGE: Sergey [Brin]?

TRUMP: Yes

SCHMIDT: Sir, the Secret Service detained him. We warned him not to try to get into Trump Tower wearing his Google Glass, but he won’t take them off. Well. We want to thank you for inviting us to Trump Tow—

TRUMP: Let’s just cut the crap. I know you did everything you could do get Hillary [Clinton] elected. I know you worked for Obama’s team, Eric [Schmidt]. I know you hate me and I don’t care. But you have 10 minutes to tell me what you want so I can figure out how useful you can be, and how much damage you can do. Go.

PAGE: Er, right. Well. Top of our agenda is ensuring that America’s wealth-creating technology companies – that’s us – have a vital supply of top technology talent.

SCHMIDT: Mr President, as I said two years ago, ‘we take very, very smart people, bring them into the country, give them a diploma and kick them out where they go on to create companies that compete with us’.

TRUMP: What happens to those companies they create?

SCHMIDT: We buy them and close them down. Or our VC friends close them down. As Peter Thiel says: Monopoly is good.

TRUMP: Well, hmmm.

SCHMIDT: Mr President, engineers are expensive, would you use the most expensive labour you could? Employers need to keep wages down.

TRUMP: Which of course I love. But you see, I just got elected on jobs. That’s how I won. I got 2 million fewer votes than Crooked Hillary, but I got them where it counted, right in her backyard. And you’ve created a two-caste economy. Maybe you can employ some American engineers?

SCHMIDT: Uh. In a global interconnected world, Sir, that would be…

TRUMP: Spare me the Thomas Friedman crap. You’re toxic. The DoJ said your cartel fixed wages for a million workers.

SCHMIDT: We’ve fixed the DoJ now, Sir. We run it.

Read the post on The Register

@wsj: A Copyright Coup in Washington: The new Librarian of Congress ousts a federal copyright defender [Congress should investigate]

[Editor Charlie sez: This opinion post is from the Wall Street Journal editorial board calling out the Librarian of Congress for a “botched personnel dispute” that is tainted by Hayden’s longstanding relationship with entities funded by Google.]

PHOTO: ASSOCIATED PRESS
Nov. 2, 2016 6:51 p.m. ET

Most Americans think of Google as a search engine doing unalloyed social good, but the company also wants to make money and wield political influence along the way. So you don’t have to be a conspiracy theorist to notice that an abrupt change of leadership at the U.S. Copyright Office is good news for Google, which aims to pay less for profiting from the property of others.

Maria Pallante served for more than five years as the U.S. register of copyrights, a division of the Library of Congress. Two weeks ago Ms. Pallante was reshuffled to an advisory post for “digital strategy” she never sought, a job that included expanding the library gift shop. Three days later she resigned in a letter to the Librarian of Congress, Carla Hayden, who had been sworn in mere weeks earlier. What happened?

***

Ms. Hayden’s allies say she simply wants to install her own loyalists, and maybe so. Ms. Pallante favored reorganizing the copyright office as an independent agency, which might have felt threatening to Ms. Hayden. But we can find no similar removal of a copyright register, and the details are unusual.

 The Library’s public announcement said nothing more about Ms. Pallante’s tenure than that it “laid the groundwork for important modernization.” But in a memo to Ms. Pallante that leaked to the press, Ms. Hayden stipulated that her new job did not include “any communications” with Congress, which was reviewing copyright laws with Ms. Pallante. The House Judiciary Committee put out a bipartisan statement calling Ms. Pallante’s departure a “tremendous loss.”

There is some circumstantial evidence that Google’s lobbying influence was brought to bear in removing Ms. Pallante, though both Google and Ms. Pallante declined to talk to us. Google’s business model is essentially making money off other people’s content, and the company’s strategy has been to infringe on copyrighted material like books and fight it out later in court. The copyright office administers laws that protect owners.

For example, Ms. Pallante’s office opposed a Justice Department interpretation of licensing that would have undercut collaborations. As it happens, that change was reportedly pushed by a former outside counsel for Google who had moved over to Justice. Ms. Pallante’s view won in court.

Earlier this year the Federal Communications Commission proposed something known as the set-top box rule. The thrust was to force cable companies to build a universal adapter so Google and others could broadcast content without paying licensing fees or abiding by carriage agreements. Google supported the new rule. Less pleased were creators, who wouldn’t be paid for their work.

Read the full post on the Wall Street Journal