Article 13 Passes in European Parliament
In a major defeat for Google’s astroturf campaign, the European Parliament has passed the new European Copyright Directive. Big step forward for closing the greatest income transfer of all time, aka the value gap.
Google’s Cambridge Analytica-inspired tactics were very reminiscent of scams run in other countries, not to mention SOPA.
Looking forward to that apology from Torrentfreak.
Using Forks and Knives to Eat Their Bacon: More Misdirection and Dodgeball from SiriusXM
Right on cue, SiriusXM attacks the Music Modernization Act at the 11th hour with a frothy op-ed in Billboard that strings together what I would argue are a lot of half-truths and misrepresentations in a desperate effort to fool both artists and the Congress into preserving the Sirius crony insider deal on subsidized royalty rates.
Sirius’s whingey post is a failed dezinformatsiya campaign focusing on a feigned concern for artist welfare that’s about as convincing as an ivory poacher joining PETA. Sirius then makes mysterious assertions about how artists have given up getting a broad performance royalty for terrestrial radio which Sirius surely knows is false as negotiations continue between MusicFirst and the National Association of Broadcasters, and for a big finish adds some rhetorical bobbing and weaving that seems to boil down to kvetching about why can’t Sirius get recordings and songs for free.
Only a monopolist could pull off this kind of rhetorical thimblerig with a straight face and only a media consolidator like Sirius’s and Pandora’s owner Liberty Media could feel entitled to do so. Sirius is getting bad advice–yet again.
The Charade of Horribles Begins Here
Sirius starts off with a blatant misdirection–somehow the monopolist satellite radio operator is oh so very concerned about how artists are paid under Sirius’s “licenses” for pre-72 works. According to Sirius, “The Company wants to make sure that a fair share of the monies it has paid, and will pay, under these licenses gets to performers.” Sounds good, right?
Wrong. The statement is pure deception. Sirius leaves important facts out of the argument: the only reason that Sirius is paying anything at all on pre-72 artists is because The Turtles and the major labels each sued Sirius in litigation that Sirius fought for years with all the wrath of big law firms trying to crush uppity artists.
The Sirius post in Billboard addresses the major label settlement of that lawsuit which itself had two components–a lump sum payment of $210 million that the labels have distributed or have committed to distributing to artists, and also a go-forward license.(The Turtles got even more for the class action settlement–check here to see if you’re in the class.)
When Sirius refers to a “license” without also referring to the lawsuit that produced the license, it sounds like the “license” is just normal course business. Not true–Sirius had to be dragged kicking and screaming through courts in California, Florida and New York to get to any conclusion at all. So pretending there was a license without the lawsuits that drove Sirius to the table is quite the equivocation.
And frankly if it weren’t for The Turtles there probably would be no solution at all. It sounds quite different to say that Sirius is so concerned about artists that they allowed themselves to be sued and are cheesed that artists still mistrust them as royalty deadbeats, right?
Not to mention–it’s unclear that there actually are any licenses to pay on in the first place if you think a license should actually have like, you know, terms and stuff. Sirius evidently is taking extreme positions in a negotiation of those terms with the major labels that is very contentious according to the New York Times. So the reality doesn’t exactly comport with the Sirius fantasy. Shocking, I know.
Now Sirius wants to run to Congress at the 11th hour to use the MMA to amend a private settlement agreement because they are so concerned about payments to artists under private contracts? Sorry, that dog won’t hunt. If there’s a royalty dispute between artists and labels, it’s not going to get fixed by either SiriusXM or the U.S. Congress. It will get fixed by artists, their managers and lawyers just like always.
What Sirius want to do is gin up a fake 11th hour issue to try to derail the MMA altogether. Why? They’re doing it partly because it looks like MMA is going to limp across the finish line in the coming weeks, but they’re doing it mostly because they think we’re all idiots.
So don’t come crying to me about how much Sirius care about artists when they would be happily stiffing artists to this day if the artists hadn’t sued them into submission.
My, What Big Teeth You Have
Sirius then goes on to spread squid ink about the Congress getting out of the free market by ending the Sirius subsidized royalty rate–subsidized by the very artists who they profess to care about so much–in favor of the “willing buyer/willing seller” standard which tries to approximate a free market negotiation. You have to love the irony in this line from the Sirius op-ed:
The willing buyer/willing seller standard functions well in competitive markets. In fact, it would work great if there were 100 labels to buy music from, but there isn’t — in an overwhelming majority of cases there are only three.
Actually–there are well over 100 labels to “buy music from”, and saying otherwise is an insult to independent labels around the country and all over the world. But…there’s only one monopoly satellite radio carrier–SiriusXM, which itself is a combination by takeover of Sirius’s competitor XM Radio which we remember fondly as the brainchild of one of the greats, Lee Abrams.
Sirius’s point is exceptionally ironic and some might say entirely disingenuous when you consider the company’s control over Pandora acquired as a result of corporate hard ball in its head fake merger negotiations with Pandora–which strangely enough also took the Sirius position on stiffing pre-72 artists and got sued right along side the satellite monopolist.
And of course it must be said that all of these machinations are orchestrated by media consolidator Liberty Media, the massive conglomerate whose CEO Greg Maffei “…is chairman of Sirius-XM, Pandora Media, Live Nation Entertainment (which owns Ticketmaster), Liberty TripAdvisor and Qurate Retail — the recently rebranded owner of QVC, HSN and Zulily. He’s a director of Charter Communications, the No. 2 cable operator (Liberty is the largest stockholder), and online real estate service Zillow” according to Variety. “[Maffei] last year made $19.8 million — up 17% over 2016 and equal to 223 times the $88,786 that the average Liberty Media employee collected.”
And then there’s the persistent story about Liberty Media acquiring iHeart (see term sheet here). So that’s all pretty cozy cronyism.
It will come as no surprise to Sirius that when you ask someone to invest in your company, that usually results in that investor getting shares of stock–like when an artists subsidizes the Sirius royalty rate. I see no shares of Sirius on offer here, and it’s just the usual drivel that is based solely on “I don’t wanna goo goo goo.” The free ride is over (hopefully).
IRFA Much?
As if the trip to Sirius’s alternate universe weren’t weird enough, we now have this nonsense statement that requires a trip back to messaging for the failed Internet Radio Fairness Act supported by Pandora, SiriusXM and Google Shill Listers, the Electronic Frontier Foundation:
SiriusXM is asking the simple question: “Why are we changing the rate court evidence standard for musical compositions in this legislation?” So, artists have agreed that they do not want to fight for terrestrial radio to pay sound recording royalties, SiriusXM has accepted that decision. But why is terrestrial radio given another break in rate court for the musical composition rights?
Let’s disabuse Sirius of the idea that artists have given up anything on the fight for artist pay for radio play. Those negotiations are on-going and last time I looked the #irespectmusic campaign was alive and kicking. It’s a marathon not a sprint.
I can understand that Sirius is envious that Big Radio has succeeded in administering an ass kicking to artists for a long time, but those days are ending. Thanks to Ranking Member Jerry Nadler and his “Fair Play Fair Pay” bill, radio may soon be paying their fair share in the new Congress. And remember–for quite some time, Sirius has not wanted broadcast radio to be royalty-paying like Sirius, instead Sirius wanted to be royalty-free like broadcast radio. Sorry, the answer is artists have not given up anything on fairness.
The change to the rate court evidence standard for songs is hardly a break for terrestrial radio given the package of rate court relief in MMA–if anything, it allows songwriters a greater opportunity to argue for higher rates. More rhetorical magic tricks at the thimblerig table.
Let’s be clear–Sirius is using rhetorical tricks and sleight of hand to draw artists’ attention away from the prize. Whatever problems we may have in the family, we’re not going to take advice from them in their starched white shirts using forks and knives to eat their bacon.
@IMPALAMusic: Calling all Creators, Europe is Under Attack
[Attention @SenatorBurr @MarkWarner! GoogleTwitterFacebook are attacking the European Parliament just the way they do the US Congress!]
BMG Rights Leads the Way on Enforcing DMCA Predicates
It’s been an interesting few months for Big Tech’s safe harbor protections under copyright law and the antonymous Communications Decency Act. These safe harbors are important to protect Big Tech’s income transfer also known as the “value gap,” but an often overlooked precursor to the effectiveness of safe harbor are the compliance requirements clearly spelled out in the applicable statutes.
It is important to remember that in order to enjoy the safe harbor, Big Tech has to act responsibly on “red flag knowledge”–meaning that they knew or should have known that there was infringement on their platform–and that they enforce a “repeat infringer policy.” Contrary to what it seems a lot of people believe, the DMCA is not a “catch me if you can” alibi. Rather, there is a quid for the pro quo.
And BMG Rights Management is the only music publisher we know of to take direct action against an ISP for failing to enforce a repeat infringer policy–and, most importantly, to win their case by denying the ISP any safe harbor protection. Although the case settled last week before a potential retrial could have made Cox’s liability even greater given the favorable appeals court ruling, BMG made some good law in the process.
BMG brought its case against Cox Communications in 2014 and won a jury verdict in 2015 for $25,000,000 in statutory damages and $8,500,000 in attorneys fees. Cox appealed and the appeals court reversed the jury award and ordered a new trial based on imprecise jury instructions, but also ruled that the safe harbor repeat infringer policy predicate requires meaningful implementation of that policy by an ISP.
Cox argued that an “infringer” in the case of the repeat infringer policy means an adjudicated infringer, i.e., one who has had a full federal trial and exhausted all appeals. This argument has been around since 1999 at least for one reason–it would essentially turn the DMCA safe harbor into a “catch me if you can” alibi that not only was totally unworkable but was also defeated the purpose of the predicate in the first place.
The appeals court put this canard to rest: (at pp. 12-13)
Cox contends that because the repeat infringer provision uses the term “infringer” without modifiers such as “alleged” or “claimed” that appear elsewhere in the DMCA, “infringer” must mean “adjudicated infringer.” But the DMCA’s use of phrases like “alleged infringer” in other portions of the statute indicates only that the term “infringer” alone must mean something different than “alleged infringer,” otherwise, the word “alleged” would be superfluous. Using the ordinary meaning of “infringer,” however, fully accords with this principle: someone who actually infringes a copyright differs from someone who has merely allegedly infringed a copyright, because an allegation could be false. The need to differentiate the terms “infringer” and “alleged infringer” thus does not mandate Cox’s proposed definition.
Moreover, other provisions of the Copyright Act use the term “infringer” (and similar terms) to refer to all who engage in infringing activity, not just the narrow subset of those who have been so adjudicated by a court.
Recall that music publishers never participated in the Copyright Alert System which was an agreement among the Recording Industry Association of America, the Motion Picture Association of America, and the internet service providers AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon. In a non-technical sense, CAS was something of its own repeat infringer policy by contract on top of the DMCA. The CAS agreement expired in 2017–after BMG brought its lawsuit against Cox. Although there was nothing in the CAS that stopped a publisher from suing any ISP, it was practical that BMG would sue a big ISP like Cox that was not in CAS.
In a reversal of the old order, the labels now have sued Cox for infringement of their sound recordings some of which were implicated in the BMG Rights case, and that lawsuit has would up before Judge Liam O’Grady who heard the BMG Rights case (wheel fans take note).
According to Music Business Worldwide:
BMG North America General Counsel Keith Hauprich, said, “This was a landmark case in which BMG took on the third biggest internet service provider in the United States to defend and establish the principle that in order to benefit from a so-called ‘safe harbor’ defense, an ISP has responsibilities. While the financial terms of the settlement are confidential, we are happy they reflect the seriousness of this case.”
He added: “Other ISPs should take note that the law gives protection to the work of artists and songwriters. We will not hesitate to take action where necessary.”
In a further statement, BMG said: “BMG succeeded in establishing in court its central claim that an ISP needs to take specific action against subscribers it knows to be repeat copyright infringers.
“BMG is optimistic that this victory will persuade other US ISPs to tighten up their procedures on copyright infringement. Having achieved a landmark ruling, BMG concluded that it made sense to accept a substantial settlement.”
Or, as we say around MTP, the DMCA is not an alibi.
Google’s European Campaign Contributions on Article 13
RITTER
They want what every first term administration wants…a second term.
From A Clear and Present Danger, written by Tom Clancy (novel), screenplay by Donald Stewart, Steven Saillian and John Milius.
MTP readers will recall that both the Times of London and Frankfurter Allgemeine Zeitung have confirmed the efforts by Google to influence the vote on copyright reform in the European Union. We called for that investigation on MTP and were mocked for doing so by the usual suspects.
Getting mocked by the usual suspects is how you know you’re onto something big, by the way.
But we owe a big thanks to the really stellar investigative work of Volker Rieck and David Lowery that exposed how Google uses astroturf front groups to “push its views” and for which it no doubt pays well.
There is, of course, a political dimension to this exposé that has not been examined thoroughly yet. It’s an important dimenstion because the Members of the European Parliament must stand for election next year, less than a year away. And the Member of the European Parliament who certainly appears to be as close to Google as 1 is to 2 is the lone Pirate Party representative.
The Pirate Party is a creature of proportional representation, an interesting practice in Europe (and other places) that allows political parties with very small constitutencies to field candidates and sometimes get elected to legislative bodies such as the European Parliament. The Pirate Party has one European Parliament representative elected from Germany, which is interesting because Google has also dropped a pile of influence-peddling cash in Germany according to the Google Transparency Project.
First, Google’s academic influence program in Europe has gone beyond funding existing academic institutions, as it does in the United States, to helping create entirely new institutes and think-tanks in key countries like Germany, France and the United Kingdom. In those countries, executives from Google’s lobbying operation have helped conceive research groups and covered most, or all, of their budgets for years after launch.
Google policy executives have acted as liaisons to steer their research priorities and host public events with policymakers.
For example, Google has paid at least €9 million to help set up the Alexander von Humboldt Institute for Internet and Society (HIIG) at Berlin’s Humboldt University. The new group launched in 2011, after German policymakers voiced growing concerns over Google’s accumulated power.
The Institute has so far published more than 240 scholarly papers on internet policy issues, many on issues of central importance to Google’s bottom line. HIIG also runs a Google-funded journal, with which several Google-funded scholars are affiliated, to publish such research.
The Institute’s reach extends beyond Germany, or even Europe. HIIG previously managed, and still participates, in a global Network of Internet and Society Research Centers [Silicon Valley’s answer to the Confucious Institutes] to coordinate internet policy scholarship. Many are in emerging markets where Google is trying to expand its footprint, such as India and Brazil.
So it must be said that when Google was caught with its hand in the cookie jar on Article 13, that astroturf effort must be viewed as part of a larger Google policy laundering operation that may include influencing elections. Certainly in a post-Cambridge Analytica world, one cannot simply ignore these dots and all are worthy of investigation for compliance with Europe’s campaign finance laws if nothing else.
For a minority political party representative of one in need of a message in the face of an imminent election, it simply cannot be ignored that garnering the finanical support of Google and Facebook’s astroturf operation for a campaign that directly or indirectly benefits a candidate may be welcome.
Getting Silicon Valley’s billions focused on motiviating the electorate around a particular issue of benefit to such a multinational bloc of monopolists might help motivate voters and guide them to the “right” candidate. As one of the usual suspects noted:
When the European Commission announced its plans to modernize EU copyright law two years ago, the public barely paid attention. This changed significantly in recent months.
Which was perhaps one of the electoral objects of the astroturf exercise.
Considering that political campaigns in Europe are typically of quite limited duration compared to the US (sometimes as short as 25 days before polling day), coming up with a an issue campaign that a political candidate–especially an incumbent–can leverage to increase their profile has got to be golden–particularly if that campaign may not rise to the level of a restricted political contribution or electioneering has got to be disclosed.
If that issue campaign can draw funding and support from U.S. based multinational corporations like Google and Facebook leveraging their user networks and advertising clout, all the better for a vulnerable candidate.
Because in the end, what every incumbent wants is another term. The Pirate Party already faces declining relevance and may lose the one seat they have in the European Parliament elections in a few months time. Especially if the the Pirate Party already struggles to field a winner. Faced with such an existential threat, who knows what compromises may get made and who knows what in-kind donations may surface.
Undisclosed compromises and in-kind donations.
Did @zephyrteachout Quietly Resign from Controversial Lobby Shop?
[A blast from the past–when New York Attorney General candidate Zephyr Teachout lost her last try at the policy spotlight and covered up her connection to the controversial Fight for the Future.]
Candidate Teachout and Lester Lawrence Lessig III
Zephyr Teachout faced the voters yesterday [in 2016] in the Democratic Party primary for the 19th Congressional District to replace the retiring Chris Gibson (a former combat veteran bird colonel, Airborne Ranger with the CIB, Purple Heart, and other distinctions). In a weak start to her general election campaign, she seems to have tried to quietly resigned from a public association with a controversial anti-artist lobby shop rather than face legitimate questions from her artist constituents in the Hudson Valley.
Candidate Teachout is definitely fascinated with getting into a powerful position–she challenged NY Governor Andrew Cuomo in his latest winning campaign for governor and got a respectable 30%ish of the vote. (Teachout outraised her opponent 2:1 according to the most recent disclosures, thanks in part to a corporate donation from George Soros‘s Soros Fund Management.) A former lobbyist, she’s clearly got her own machine and isn’t worried about his.
While Progressives may be drawn to this former operator of the failed Lessig Super PAC (see Zephyr Teachout takes over Larry Lessig’s PAC), several musicians including Jack DeJohnette and Marc Ribot have publicly asked Candidate Teachout to publicly state her positions on protecting artist rights.
Good news: There are two bills currently pending in the House of Representatives to which Candidate Teachout seeks election that sum this up nicely but that are both opposed by the kind of people who gave money to the Lessig Super PAC she once ran. If elected, will Candidate Teachout endorse the Songwriter Equity Act and the Fair Play Fair Pay Act should these bills not pass in the current Congress and be reintroduced?
In particular, while being transparent, she could also explain why she was in the vanguard of one of the premier anti-artist operations and why that’s good for NY-19, an area that prides itself on having the highest per capita number of artists than anywhere in the United States.
She’s done neither–but appears to have quietly resigned from her controversial position with Fight for the Future “Education Fund”.
Now why do you suppose that happened and happened that way?
Transparency for Thee But Not for Me
If you’ve followed local politics in the 19th, you’ll know two things: First, Woodstock is in the district. Remember Woodstock? The defining musical moment for a generation? Remember Albert Grossman, Bearsville Studios, Big Pink, Bob Dylan and The Band? Levon Helm’s Midnight Ramble? All in Woodstock. In fact, I was able to attend a Ramble when Levon performed even though he was too sick to sing. Dying on the bandstand is rather emblematic of the credibility problem facing Candidate Teachout.
And nowhere is her problem more highlighted than in her governance position with the Fight for the Future Education Fund. You may not be aware that Candidate Teachout is–or maybe was–on the board directors of Fight for the Future Education Fund (right next to a self-described Google consultant).
The lobbying group is backed by the Consumer Electronics Association and the Center for Democracy and Technology, among others, including the usual “dark pool” foundations that appear in my view to potentially launder money for corporations who want to keep up appearances–such as Google. (Corporation gives to foundation which then gives to lobbying group or “public interest” group that furthers corporations agenda with public messaging–dark pool foundations.)
A Cover Up is Coming
So–why would Candidate Teachout not respond to the questions raised by Jack and Lydia DeJohnette in The Trichordist? The great drummer raises questions that should be of concern to anyone who cares about property rights and the rule of law, not to mention the devastation wrought on artists by the Big Tech interests that Candidate Teachout appears so comfortable with. (For example, the CEO of Linkedin and Spotify board member Sean Parker gave $1 million and $500,000 respectively to Lessig PAC).
Here are the questions put to Candidate Teachout in the Trichordist:
Four Questions for Zephyr Teachout Candidate US House of Representatives Democratic Primary NY-19
- Do you personally support the anti-artist, anti-copyright agenda of Fight For The Future, where you served as Director of the Education Fund? If so, please explain why you hold that position. If not, please explain how your views differ from the messages of that organization.
- Do you recognize that mass, online copyright infringement causes direct harm to people like me? As my prospective representative, will you fight for my ability to support myself and my family with my creative work?
- You’re running on a message that is very important to democrats – holding corporations accountable and getting big money out of politics. Can you say without equivocation that Fight For The Future reflects these values?
Do you support Jerrold Nadler’s Fair Play Fair Pay bill, which would bring the US into conformity with the rest of the free industrialized world by paying artists for the commercial, terrestrial radio broadcast of their work (and put tens of millions in foreign royalties now being withheld due to the lack of US reciprocity into the pockets of US working artists)?
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#irespectmusic Podcast by Karoline Kramer Gould
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Sign the petition and tell Congress you want artist pay for radio play! 13,000 signatures and counting! (Thank you Rep. Jerry Nadler)
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