As if it weren’t hard enough: @TheFOWShow Covers the Direct Shot Supply Chain Debacle

December 7, 2019 Leave a comment

If you are lucky enough to have an independent record store in your community today (mine is the fabulous Waterloo Records), you may not realize just how lucky you really are.  For an independent record store to have survived the last 20 years is something of a modern miracle.  (I think the Waterloo story should be a Harvard Business School case study, frankly.)

It’s also important to realize that physical configurations contributed to 25% of global recorded music revenues in 2018.  Vinyl alone accounts for 3.6% of global revenue.  But–all the majors have outsourced their U.S. physical distribution to a company called “Direct Shot” and the result is a disaster for this delicate ecosystem.  I find it hard to believe that any sales guys had much to do with that decision–it has that extra special Boston Consulting Group stench to it.

The point is that the one way that it could be harder for retailers than it already is due to contractions in the market and streaming cannibalization is if the labels also contracted their stock, shorted them, or just simply didn’t timely deliver the records the stores ordered.  It’s also a silly move for the labels–that’s a nice 25% of revenue you got there, be a shame if something happened to it.

This episode of the first-rate Future of What podcast hosted by the brilliant Portia Sabin is one of the first in depth public conversations on this vital topic.  You may also want to read the open letter from retailers to the major labels that appeared earlier this year, as well as an in depth post about the Direct Shot debacle in the MusicBiz blog.

Repost: The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

December 4, 2019 Comments off

[Editor Charlie sez:  This is a post from 2/6/18 with an update from this week as noted.  MTP readers also might want to re-read this post about Spotify lawyer’s gratuitous attack on David Lowery.]

UPDATE: Senator Thom Tillis and Representatives Ben Cline, Martha Roby, Ted Deutch and Harley Rouda have written a letter to the American Law Institute asking what they think they’re doing with the fake “Restatement of Copyright” being written by Spotify’s lawyers and recipients of Big Tech largesse.  

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Now it’s the “Restatement of Copyright”, which is rapidly becoming a desk reference for the anti-artist crowd, led in this case by Professor Pamela Samuelson and Professor Christopher Sprigman.  Sprigman enjoyed a walk-on for the Spotify legal team in the Nashville Cases.  (Having achieved victory with a new safe harbor with the Music Modernization Act, Spotify may find that the Nashville cases are the last copyright infringement lawsuits they will ever defend.  So Sprigman’s role is significant in the anti-artist community.)

Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand.

The potential for astroturfing is why the controversy should be of importance to artists–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 or lobbying were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice although that’s changing.

And yet the scandal is still a teachable moment for being far more selective and open-eyed about what we spend our time on and lend our names to.

What is a “Restatement”?

As Professor Risch notes in a 2015 blog post on the Restatement of Copyright controversy, there is a difference between the restatement approach and a treatise (such as Nimmer on Copyright) and should not be confounded:

Restatements generally boil the law down to a single rule (or few) on a given topic. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule. Quite often, referral to the treatise is really to the footnotes, looking for a case citation in a particular circuit. Treatises might present different rules in different circuits.

The current scandal is over copyright, but it appears that the Restatement of Copyright is simply the current manifestation–similar controversies face ALI on its “Restatement of Liability Insurance Law” project as well as its “Restatement of the Law, Consumer Contracts.”  There may be others.

What is the “Restatement”?  Justice Scalia provides us with an explanation (Kansas v. Nebraska, 574 U.S. ____ (2015) (Scalia, J. concurring in part, dissenting in part):

I write separately to note that modern Restatements—such as the Restatement [at issue in the case at bar]—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be….And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Enter Professors Samuelson and Sprigman.  Revising the law is just their game.  And so here we are.  (MTP readers will remember Professor Sprigman represents Spotify and came up with another example of “revisionist” argumentation to claim on behalf of Spotify that mechanical streaming royalties don’t exist.  This sent some running scared to take the bait in the recent Music Modernization Act.  And of course who can forget when 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 no less.)

It All Starts with a Cigar:  Samuelson Makes the Pitch

Professor Samuelson (she of the Samuelson-Glushko law centers, Silicon Valley’s answer to the Confucius Institutes) seems to have been the prime mover in the effort for a “Restatement of Copyright” as near as I can determine from a 2013 letter she wrote to the then-director of ALI:

You may remember that during the American Law Institute (ALI) Young Scholars Conference on Patent and Copyright Law held at Georgetown University Law Center in February 2013, I suggested that ALI should undertake a copyright reform project. I am writing now to follow up on that suggestion with a more concrete proposal for a project that articulates principles that courts, lawyers, and scholars can use without the need for legislation and that would provide an analysis and framework that would aid additional reform efforts. Such a project would enable the ALI to bring reason and order to this important area of the law and help clarify and simplify it in accordance with the lnstitute’s mission.

Of course, American copyright law is a creature of statute as they say.  Professor Samuelson knows this.  So when she proposes a “copyright reform project” that avoids the “need for legislation”, she is heading straight into Justice Scalia’s sweet spot regarding the restatements.  Or jar of vinegar, depending on your view.  It appears that the Restatement of Copyright was planned on being a cut above a 3L’s course outline and a notch below lecture notes from the start.

So–and we will come back to this–the entire Restatement of Copyright enterprise was doomed from inception.  Thousands of work hours were spent on this misadventure that was a results oriented process designed–as Professor Samuelson clearly states–to create an antidemocratic work around to the statutory copyright law.  Talk about your smoke filled rooms, Valley-style.

It’s Not Just Us:  Problems with Astroturfing on Other Restatements

It is cold comfort that this astroturfing may well be a pattern at ALI.  Consider complaints about the Restatement of Liability Insurance Law that could easily be made of the Restatement of Copyright:

The Restatement of the Law, Liability Insurance is the ALI’s first-ever project on the topic of insurance law and the ALI’s first-ever industry-specific Restatement. The ALI leadership made a sound decision to postpone a final vote of approval of this Restatement at the 2017 Annual Meeting to allow time for additional work on the project. The project Reporters’ subsequent announcement of a “listening tour” to address outstanding concerns with the Restatement also signaled the prospect of meaningful improvements. Despite these assurances, minimal changes have been made to this Restatement….The failure of the Reporters to meaningfully address key sections of the Restatement that generated concern at the 2017 Annual Meeting makes the ALI leadership’s decision to postpone the project ring hollow and suggests a “broken promise” to address legitimate outstanding concerns. Numerous aspects of this Restatement have generated concern for both insurers and non-insurers. The two examples discussed in the prior general counsel letter continue to illustrate key concerns. The Restatement continues to endorse a “new version” of the basic rule that contract terms are interpreted according to their “plain meaning” which would allow extrinsic evidence to be considered even when a contract is clear. This provision would create uncertainty, invite unnecessary collateral litigation, and set an unsound precedent with respect to the interpretation of insurance policy terms, and possibly terms in other types of contracts.

Sound familiar?  The pattern raises a much, much larger question about what is going on at ALI and how ALI is funded.

But in the Copyright restatement, it was clear from the beginning that Professors Samuelson and Sprigman were involved.  Who did Samuelson recommend to “help” the ALI with the Restatement of Copyright in her 2013 letter to ALI?

The Reporter or Reporters, the Advisers, and the Institute should be able to engage and draw on significant law school resources. These include, to give just a few examples, the Berkeley Center for Law & Technology at Berkeley Law (BCLT, http://www.law.berkeley.edu/bclt.htm), of which I am a Director and which has hosted important copyright events such as a conference commemorating the 300th anniversary of the Statute of Anne, a conference on orphan works and mass digitization, and a conference on copyright.formalities; the Center for Internet and Society at Stanford Law School (http://cyberlaw.stanford.edu/), which concentrates on public policy issues such as copyright and fair use; and the Berkman Center for Internet & Society at Harvard (http://cyber.law.harvard.edu), which focuses on cyberspace issues through projects and initiatives such as the Digital Public Library of America.

Does it really need to be said yet again that CIS and Berkman both get funding from Google?  And that Professor Samuelson’s interests are as close to Google’s interests as one is to two or that Professor Sprigman conducts Google-sponsored research?  For example, statutory damages for copyright infringement has long been an attack point of Big Tech and we get a preview of where they want it to go in Pamela Samuelson’s “Copyright Principles Project”–essentially abolished–like the controversial Music Modernization Act, another example of fake “unity.”

The Teachable Moment:  Take A Pass in Future

The result of participating in a project where Sprigman controlled the pen was knowable simply based on who was involved.  So why would anyone bother with these people and their Restatement of Copyright?  I bet the insurance lawyers are asking themselves the same thing about the Restatement of Liability of Insurance Law.

Did anyone really need to know of Samuelson’s 2013 letter or Sprigman’s 2014 proposal to have guessed that these people were not interested in the ALI’s founding principles, were agenda-driven and were unlikely to consider the interests of professional creators that drive our industry?

This is why the idea that there can be unity between the anti-copyright forces and the creative community is a farce.  I don’t know how many times these efforts have to blow up for people to understand that it is not worth engaging if you see certain names involved because the effort is not genuine.

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  And as Rogers & Hart wrote, unrequited love’s a bore.

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”  Or you can buy Bitcoin futures from the Winklevoss Twins.

Why Creators Should Care About Google v. Oracle in the Supreme Court–@artistrights Watch

November 26, 2019 Comments off

There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come:  Google v. Oracle.

[MTP readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion.  We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people dancing to Google’s tune.]

On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle.  But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.”  And when I say “Google”, I don’t really mean Google as a company.  I mean the insiders.  This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.

So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.

How did Google get sued by Oracle and not Sun?  According to Google’s SCOTUS brief (at 3):

Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.

Let’s not just blow past that statement.  (First of all, it’s not really true.)  That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights.  Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that.  Or said another way, 2+2=5.  And don’t you forget it.

You can see that Google would like to push that angle.

If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do.  That buyer then sues Google for those pre-acquisition infringements.  A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.

But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems.  As the amicus brief by the United States  tells us, one of the questions presented to SCOTUS is:

Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….

[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.

As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative.  Which is, of course, fair use.  Or was it a parody, I forget.

The brief by the United States disagrees, and so do I.

So let’s be clear:  This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can.  And then scream fair use.

You have to wonder why SCOTUS took this case.  I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.

 

The Return of 100% Licensing and the Expansion of the Blanket License

November 21, 2019 Comments off

Who can forget the nightmare of the Justice Department’s counterproductive flirtation with 100% licensing the last time the DOJ reviewed the consent decrees.  (We covered the 100% licensing head fake in a podcast and a guide to 100% licensing.)

Since then, the Congress passed the Music Modernization Act, which includes a massive overhaul of the mechanical licensing system which is currently the subject of an implementing rule making.  What does the MMA have to do with the PRO consent decrees?

More than you might think.  If you recall, one of the big justifications for supporting the MMA legislation that did not include a terrestrial performance right for sound recordings was due to the lobbying firepower opposing the terrestrial right.  We were told that artists were never going to win the terrestrial right (which is what the #irespectmusic campaign is all about) so we should just give up and think of England, so to speak.  Or more precisely, support the MMA.

If you drill down on Title I of the MMA (which creates the Mechanical Licensing Collective, etc.), what it does at a high level is create a compulsory license for certain activities, a global rights database, and a regulatory authority for all of the above.

Note–“certain activities.”  At the moment, those activities are limited to digital phonorecord deliveries, including on demand streaming, limited and permanent downloads.

But–guess what?  Those activities could be expanded to include compulsory blanket licenses for other exploitation rights of songs, like general licensing (bars, hotels, restaurants), broadcasting and anything else the lobbyists can jam through.  All administered by the Mechanical Licensing Collective, which if such an amendment comes to pass probably would have to change its name to something catchier like, you know, Skynet.

And remember, we don’t stand a chance against these lobbyists, right?  Remember?  Now whoever saw that coming?  And how might the lobbyists get involved with a DOJ consent decree review?  Well, because of what I call “Title IV,” which is the provisions of Title I that relate to Congressional approval of any consent decree reform for the PROs and a couple other things the PROs wanted.  (Congressional review because you have to keep an eye on the anticompetitive leanings of those pesky songwriters against MIC Coalition members with a $5 trillion market cap.)  So who are these masterminds and lobbyists?  (There is no actual Title IV by the way, that’s just a teaching tool.)

MIC Coaltion Members 2019

The MIC Coalition

Billboard reports that we’re not the only ones worrying about this angle:

Sources further say the PROs and some songwriter groups both fear that if the issue goes to Congress [under Title IV], the music business will face several industries with more lobbying power than themselves, all intent on getting legislation for a compulsory license. Even worse, music licensees would also likely push for the law to include 100% licensing — meaning only one songwriter’s consent would be needed for a song to be used— an outcome which publishers, songwriters and PROs have described in the past as a disaster.

But don’t worry, the smart people will figure this out.  Don’t bogart the popcorn.

@musictechsolve: Defiance or Collaboration? The Role of the Presidential Signing Statement in MLC Board Appointments

November 20, 2019 Comments off

[This post first appeared on MusicTech.Solutions]

Even though they have a long history, Presidential Signing Statements are not exactly front and center in every civics class or constitutional public law class in America.  You may be hearing about them for the first time now.  But that doesn’t mean they have not been an important part of Constitutional law-making and jurisprudence.

Presidential Signing Statements were first used by President James Monroe in 1822 in the form of a “special message” to the Senate. Presidents Andrew Jackson, John Tyler and Ulysses Grant also issued signing statements, but they were used infrequently until the 20th Century.  Then their use picked up quite a bit starting with President Theodore Roosevelt and continuing to the present day.  So the use of Signing Statements is quite bipartisan.  While Signing Statements may not themselves have any actionable legal effect, they should not be ignored, either.  As the MMA’s Signing Statement relates directly to corporate governance and accountability (one of our pet topics on MTP as applied to what SEC Commissioner Robert Jackson called “corporate royalty” at Spotify, Google, WeWork, Facebook and others), this post may be of interest on an issue that has not been covered by the music press.

The MMA Presidential Signing Statement

Not surprisingly, there is a Presidential Signing Statement accompanying the Music Modernization Act (“MMA”) specifically relating to Title I and at that specifically relating to the MLC board appointments.  The relevant language is:

One provision, section 102, authorizes the board of directors of the designated mechanical licensing collective to adopt bylaws for the selection of new directors subsequent to the initial designation of the collective and its directors by the Register of Copyrights and with the approval of the Librarian of Congress (Librarian). Because the directors are inferior officers under the Appointments Clause of the Constitution, the Librarian must approve each subsequent selection of a new director. I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.

Let’s explore why we should care about this guidance.

According to Digital Music News, there have been changes at the Mechanical Licensing Collective, Inc. (“MLCI”) the private non-profit permitted under Title I of the MMA:

[I]t appears that two separate MLC board members are jumping ship.  The details are just emerging and remain unconfirmed, though it appears that two members — one representing indie songwriters and the other on the publishing side — are out of the organization.

Because the board composition of MLCI is preemptively set by the U.S. Copyright Act along with many other aspects of MLCI’s operating mandate, the question of replacing board members may be arising sooner than anyone expected.  As MLCI is a creature of statute, it should not be controversial that law-makers play an ongoing role in its governance.

The Copyright Office Weighs In

The Copyright Office addressed board appointments for MLCI in its first request for information for the designation of the Mechanical Licensing Collective (83 CFR 65747, 65750 (December 21, 2018) available at https://www.govinfo.gov/content/pkg/FR-2018-12-21/pdf/2018-27743.pdf):

The MLC board is authorized to adopt bylaws for the selection of new directors subsequent to the initial designation of the MLC. The Presidential Signing Statement accompanying enactment of the MMA states that directors of the MLC are inferior officers under the Appointments Clause of the Constitution, and that the Librarian of Congress must approve each subsequent selection of a new director. It also suggests that the Register work with the MLC, once designated, to address issues related to board succession.

When you consider that MLCI is, for all practical purposes, a kind of hybrid quasi-governmental organization (or what the Brits might call a “quango”), the stated position of the President, the Librarian of Congress and the Copyright Office should not be surprising.

Why the Controversy?

As the Songwriters Guild of America notes in comments to the Copyright Office in part relating to the Presidential Signing Statement (my emphasis):

Further, it seems of particular importance that the Executive Branch also regards the careful, post-designation oversight of the Mechanical Collective board and committee members by the Librarian of Congress and the Register as a crucial prerequisite to ensuring that conflicts of interest and bias among such members not poison the ability of the Collective to fulfill its statutory obligations for fairness, transparency and accountability.

The Presidential Signing Statement, in fact, asserts unequivocally that “I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.”

SGA regards it as a significant red flag that the NMPA-MLC submission to the Copyright Office devotes the equivalent of ten full pages of text principally in attempting to refute this governmental oversight authority, and regards the expression of such a position by NMPA/MLC as arguably indicative of an organization more inclined towards opaque, insider management control than one devoted to fairness, transparency and accountability.

So the Presidential Signing Statement to the MMA is obviously of great import given the amount of ink that has been spilled on the subject.  Let’s spill some more.

How might this oversight be given effect and will it be in the public record or an informal process behind closed doors?  Presumably it should be done in the normal course by a cooperative and voluntary collaboration between the MLC and ultimately the Librarian.  Minutes of such collaboration could easily be placed in the Federal Register or some other public record on the Copyright Office website.  Failing that collaboration, it could be done by either the Department of Justice (unlikely) or by individuals (more likely) asking an Article III court to rule on the issue.

Of course, the issue should not delay the Copyright Royalty Judges from proceeding with their assessment determination to fund the MLC pursuant to the controversial voluntary settlement or otherwise.  One could imagine an oversight role for the CRJs given that Congress charged them with watching the purse strings and the quantitative implies the qualitative.  The CRJs have until until July 2020 to rule on the initial administrative assessment and appeal seems less likely today given the voluntary settlement and the elimination of any potential objectors.

Since the Title I proponents drafted the bill to require a certain number of board seats to be filled by certain categories of persons approved by Congress in a Madisonian balance of power, the Presidential Signing Statement seems well grounded and furthers the Congressional mandate.

Yet there is this conflict over the Presidential Signing Statement.  What are the implications?

A Page of History is Worth A Volume of Logic

The President’s relationship to legislation is binary—sign it or veto it.  Presidential Signing Statements are historically used as an alternative to the exercise of the President’s veto power and there’s the rub.

Signing Statements effectively give the President the last word on legislation as the President signs a bill into law.   Two competing policies are at work in Presidential Signing Statements—the veto power (set forth in the presentment clause, Article I, Sec. 7, clause 2), and the separation of powers. 

Unlike some governors, the President does not enjoy the “line item veto” which permits an executive to blue pencil the bits she doesn’t like in legislation presented for signature.  (But they tried–Line Item Veto Act ruled unconstitutional violation of presentment clause in Clinton v. City of New York, 524 U.S. 417 (1998).) The President can’t rewrite the laws passed by Congress, but must veto the bill altogether.  Attempting to both reject a provision of a new law as unconstitutional, announce the President’s intention not to enforce that provision AND sign the bill without vetoing it is where presidents typically run into trouble.

Broadly speaking, Presidential Signing Statements can either be a President’s controversial objection to a bill or prospective interpretive guidance.  Signing Statements that create controversy are usually a refusal by the President to enforce the law the President just signed because the President doesn’t like it but doesn’t want to veto it.  Or to declare that the President thinks the law is unconstitutional and will not enforce it for that reason—but signed it anyway.

The President can also use the Signing Statement to define or interpret a key term in legislation in a particular way that benefits the President’s policy goals or political allies.  President Truman, for example, interpreted a statutory definition in a way that benefited organized labor which was later enforced by courts in line with the Signing Statement.  President Carter used funds for the benefit of Vietnam resisters in defiance of Congress, but courts later upheld the practice—in cases defended by the Carter Justice Department.  The practice of using Presidential Signing Statements is now routine and has been criticized to no avail for every administration in the 21st Century including Bush II, Obama and now Trump.

Since the 1980s, it has become common for Presidents to issue dozens if not hundreds of Presidential Signing Statements during their Administration.  So it should come as no surprise if the Department of Justice drafted up the statement for the MMA prior to it being presented to the President to be signed into law.  (See the American Presidency Project archives https://www.presidency.ucsb.edu/documents/presidential-documents-archive-guidebook/presidential-signing-statements-hoover-1929-obama)

Defiance or Collaboration?

What does this mean for the MMA?  The President certainly did not call out the statutorily required board membership of the MLC as an unconstitutional overreach that he would not enforce.  To the contrary, the MMA Signing Statement expresses the President’s desire that the legislation comply with the requirements of the Constitution.

Moreover,  the MMA Presidential Signing Statement is not a declaration about what the President will or won’t enforce but rather interprets a particular section of a long and winding piece of legislation.  (Title I principally amended Section 115 of the Copyright Act—now longer than the entire 1909 Copyright Act.)  This kind of interpretation seems to be consistent with the practices of prior Presidents of both parties, not an end-run around either the veto power or separation of powers.

Failing to acknowledge the admonition of the signing statement would seem an unnecessary collision both with long-standing jurisprudence and with a sensible recommendation from the President of how the Librarian, the Copyright Office and the Justice Department expect to approach the issue in collaboration with the MLCI.  That’s possibly why the Copyright Office restated the Signing Statement in the RFP.

Title I of the MMA is a highly technical amendment to a highly technical statute.  A little interpretive guidance is probably a good thing.  Collaboration certainly makes more sense than defiance.

Why Worry About Political Ad Pinocchios With @Jack Dorsey’s Twitter BotNet Apps?

November 15, 2019 Comments off

Cancelling political ads that tread on (or even trample…or even incinerate) someone’s truth are all the rage.  Having skimmed the cream from political ad revenue, Twitter has announced it is banning political ads to great fanfare–after the cow escaped from the barn.  (What this “ban” actually means in practice remains to be seen.)  Twitter CEO Jack Dorsey said he would announce the policy today, although I haven’t seen it yet as of this writing.  (Almost sounds like…a publisher…don’t it?)

This banning announcement came directly from Jack in a series of platitudinous Tweets, one of which was particularly eye catching:

Jack Dorsey Pol Ads

What Twitter did not tell you is that while they may take a hit on revenue from dropping political ads and they feel great about preserving democracy, bot farming is alive and well on Twitter.  Let’s take two examples of apps that permit bot nets based on rules established by Twitter for this purpose.

Phone2Action

Phone2Action is a private for-profit company that has raised millions in the private VC market.  The company creates “civic engagement” tools used by some progressive campaigns and nonprofits, but also used by Big Tech for “grass roots” organizing.  In fact, the head of the Consumer Technology Association (remember him?) is closely tied to Phone2Action.

phone2action gary shapiro

“Civic engagement” by a corporation is also called “lobbying” in some circles.  David Lowery has some excellent research on why this “civic engagement” looks fake (a la the European Copyright Directive debacle that backfired on Google’s use of similar tools), but suffice it to say there’s some oddities about how Phone2Action pulls off this “civic engagement,” and their Twitter app is one of them.

These campaigns center around sending messages to elected officials with the client messaging and also some call-in apps that allow anyone from anywhere in the world to call elected officials in their country or another country to lobby on the client’s message.

Boaty

The call-in app has some spooky implications highlighted by that sturdy Scot Boaty McBoatface when demonstrating a similar fake call-in campaign from Fight for the Future:

 

Note–if Boaty hadn’t told Rand Paul’s office he was calling from Scotland, Sen. Paul’s office could have gotten the misapprehension that Boaty was a constituent.  You get the idea.

Take a close look at the permissions that Phone2Action requires from users of its app on Twitter:

P2A TWITTTER annotated

Call me cynical, but when I read these permissions they seem far beyond tweeting something like “I called my Member of Congress”.  It’s more like someone gets the ability to manipulate your own Twitter account without your knowing it is happening.  We’ve seen things like this in the past produce results like this disproportionate number of likes (from the European Copyright Directive):

Bot 4 1-5-19

Bots 14-2-19 Edited

So even if Jack thinks that he will get lots of praise for cancelling political ads on Twitter, as long as he allows for-profit companies to create botnets to lobby for their interests, that ain’t nothing compared to twitter bots he allows to masquerade as true grassroots.

TikTok

Not only does Jack allow Phone2Action to monetize bot farms on Twitter, he let’s TikTok do the same.  This is another element of the national security investigation into TikTok or should be.  Here’s the identical Twitter permissions granted by everyone using the TikTok app for Twitter:

TikTok Twitter

Again, Twitter allows TikTok to have extraordinary access to your Twitter account, just like Phone2Action.  And if you think the Chinese government doesn’t have access to your data, ask Jack Ma who really owns Alibaba.

So here’s a few questions that immediately come to mind:  How much does Twitter charge for this level of access?  Who gets the data?  How much of the data scraped from users and the “look alikes” (who you follow and who follows you) is sold and resold and to whom?

And of course, which messages are they sending out in your Twitter account?  One that relates to the campaign you originally signed up for?  Or something completely unrelated?

We’re way past political ads now.

 

Must Read: @realrobcopeland: Google’s ‘Project Nightingale’ Gathers Personal Health Data on Millions of Americans

November 13, 2019 Comments off

Wall Street Journal reporter Rob Copeland has unearthed another Google data scraping scandal, this time your private health information.  As usual, Google doesn’t want you to focus on how they use this data in the background for data profiling in ways that you don’t know is happening and that you were never asked to consent to.

The scandal isn’t that it’s illegal, the scandal is that it isn’t illegal.  Yet.

Remember that where Google gets into trouble is not necessarily because of what you can see, it’s what they do with the data that you can’t see.  For example, Google uses Google Books as a corpus to teach their translation algorithm in the background through a process of machine learning.  That was what the Google Books case was about–not the “Digital Library of Alexandria” BS.

Just like many Google products, the company uses the old head fake to get you thinking the deal is about one thing, but it’s actually about something else you wouldn’t like.

 

 

 

 

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