Music Technology Policy

This week the European Parliament issued a scathing rejection of Google and Facebook’s massive lobbying campaign against Members of the European Parliament over what’s often called “Article 13”, or the Directive on Copyright in the Digital Single Market.  Article 13 is the first meaningful attempt to reverse the European safe harbor income transfer and close the value gap.  

Europe’s Global Influence

Beyond its benefits inside the European Union, Article 13 is also a crucial step toward restoring creator rights outside Europe.  Passing this watershed legislation will be in important first step toward safe harbor reform around the world, hopefully as a positive influence on reforming the U.S. version commonly called the “DMCA” copyright infringement safe harbor. Congress may well pick up that DMCA safe harbor reform in this session.   

Another benefit to Article 13 is that it’s another step toward encouraging legislative bodies to continue closing Big Tech’s cherished loopholes in other areas of the law, such another U.S. loophole beloved by Big Tech that is commonly called “Section 230.”   Congress cut back Section 230 last session.

Section 230 not only allows Google to profit from a wide variety of non-controversial behavior, but also from human trafficking, illegal drugs and counterfeit goods.  Google’s Section 230 safe harbor was significantly rolled back with the Stop Enabling Sex Trafficking Act (“SESTA”) in the last Congress.  Google fought SESTA with by launching an “off the shelf” SOPA-style, faux apocalyptica, end-of-days campaign against the U.S. Congress to preserve their human trafficking profits and stop “SESTA”, but failed.

European Commission is Also Closing De Facto Loopholes

The European Parliament historic action on Article 13 likely was of particular concern to Google because the European Commission has been closing a de facto safe harbor that protected Google’s obscene commercial overreach.  The EC brought the first two of what may be many cases against Google for competition law violations with fines in the many billions of euros.  The most recent fine in those competition law cases came down days after the first of a series of votes on Article 13.  Personally, I feel that all these events must be read of a piece.

European Parliament Tells Us That Goliath Never Learns

Google’s response to all of them appears to me to also be of a piece—barrages of fake emails and robocalls to deceive MEPs into thinking there were actual constituents who supported safe harbors for multinational U.S. corporations that violate privacy and steal culture.  (If there were real constituent voices they were drowned out or irreparably tainted by Google’s fake lobbying.)

Of course, it must be said that Big Tech’s barrage of fakery was as much directed at artists as it was at elected officials.  The campaign against Article 13 is remarkable for how much it revealed that  Big tech is as out of step with cultural history in the countries where it does business as it is failing with honest advocacy.

The fakery has gotten so bad that the European Parliament found the need to release a “myths and facts” style question and answer document regarding Article 13.  Here’s a choice passage:

The draft directive has been the subject of intense campaigning. Indeed, some statistics inside the European Parliament show that MEPs have rarely or even never been subject to a similar degree of lobbying before (such as telephone calls, emails etc.). The companies to be most affected by the directive have multi-billion dollar yearly revenues (for example Google’s revenue for 2017 was $110 billion and Facebook’s was $40.7 billion).

Such wide-ranging campaigning generally does lead to impressive claims snowballing; there are claims that the draft directive risks “breaking the internet”, or “killing the internet”. Since the draft directive does not confer any new rights on creators, nor impose new obligations on internet platforms/news aggregators, such claims seem excessive.

There are numerous precedents of lobbying campaigns predicting catastrophic outcomes, which have never come true.

For example, telecom companies claimed phone bills would explode as a result of caps on roaming fees; the tobacco and restaurant lobbies claimed people would stop going to restaurants and bars as a result of the smoking ban in bars and restaurants; banks said they would have to stop lending to businesses and people, due to tougher laws on how they operated and the duty-free lobby even claimed that airports would close down as a result of the end of duty-free shopping in the single market. None of this happened.

The document comes down to this—the Parliament is not buying Google’s jive.  Let’s hope the U.K. Parliament and the U.S. Congress take note.

Europe Defends the Human Rights of Artists

For most of the 20th century, the world shared values that authors rights were to be respected and even cherished.  These values were passed into international laws that protected creator rights.  Authors rights are human rights and authors rights are memorialized in a host of human rights documents from the U.S. Constitution to the Universal Declaration of Human Rights and well beyond.  

Those rights were largely defended and violators of those rights were reviled.  A country’s treatment of artists from writers to poets to musicians and composers, screenwriters and directors defined that society. Crackdowns were shameful events, from the Red Scare to the gulags, from Tiananmen Square to the Arab Spring.

But when profit from violating the rights of authors becomes too tempting, the siren call of greenbacks breaks down what you learned from parents, teachers, rabbis, priests or pastors or even the very secular culture under attack.  In the 1990s and to the present day, a group of commercial actors in the Internet space demanded that they be given a special mandate in which to operate—a Neverland of legislated “safe harbors” ostensibly to protect the sainted innovation.  

Largely based in the Silicon Valley protectorate and backed by venture capitalists, these folks wanted a kind of autonomous or near-autonomous zone where the human rights of authors could be abridged and outright violated, largely with impunity.  Why?  Make no mistake, they didn’t do it for “freedom,” exploration of new frontiers, innovation or substantial non infringing uses—they did it for the money.

In fact, taking an inverted page straight out of Tom Wolfe’s Radical Chic and Mau-Mauing the Flak Catchers, violating the human rights of authors even became fashionable in the fast-buck, get big fast world of the dot bomb redshift of money, money, money.  Artists who expected their human rights would be at least tolerated by the anarcho-technocrats of the 99ers got a big surprise.  Imagine the hell-bent Kafka-esque spawn of Bill Jackson’s Youth of the Future and George Orwell’s Ministry of Truth.  The mish mash elites of Creative Commons, the Electronic Frontier Foundation and the Free Software Foundation sprang up from their Palo Alto petrie dish to mau-mau both Hollywood and Silicon Valley.  They gave us a mantra straight out of Orwell’s Minitrue:  WAR IS PEACE, FREEDOM IS SLAVERY and of course COPYRIGHT IS CENSORSHIP.

These first-generation Californian startup elites didn’t know Lawrence Ferlinghetti from Carol Doda or Sam Andrew from Neil Cassidy.  They didn’t know the Henry Miller’s Rosy Crucifixion series, but they knew all about the rights, preferences and privileges of the Series A.  They went to Silicon Valley for the same reason Willie Sutton robbed banks—because that’s where the money was.

And thus began in 1998 one of the biggest income transfers in commercial history that continues to this day.  But after 20 years, the tech bros who wouldn’t grow up may find that the world has had enough of their hysteria and heartlessness and that spring cleaning time has come for them.