YouTube, Facebook and Moral Rights

August 20, 2017 Leave a comment

I was honored last year to have been asked to participate in a symposium on moral rights co-sponsored by the U.S. Copyright Office and the Center for the Protection of Intellectual Property at the George Mason University School of Law.  The symposium relates to the Copyright Office Study on the Moral Rights of Attribution and Integrity.

Moral rights is a key area of the law of copyright that is sadly lacking in the United States and an important legal tool to protect the rights of artists.

Moral rights (or for the fancy people, droit moral) are largely statutory rights that maintain and protect the connection between an author and their work.  (As I highlighted in Artist Rights are Human Rights, moral rights are not economic rights like copyright, but transcend those rights.  This is why you see language in the human rights documents, like the Universal Declaration of Human Rights, that essentially track the moral rights language.)

The two principal moral rights are the right of integrity and the right of attribution (which conversely includes protection from misattribution).  These are recognized in the Berne Convention (Article 6bis for those reading along).  Others that are not mentioned in Berne include the right of first publication (which the U.S. has a version of in the “first use” doctrine for songs under compulsory license) and withdrawal–which is a bit reminiscent of the more recent right to be forgotten.

When it comes to attribution, or what we might think of as credit, there is a form of imperfect social contract between record companies, film studios and television produces with the creative community.  This is largely thanks to years of collective bargaining with guilds such as the Writers Guild, SAG-AFTRA and the Directors Guild as anyone who has been to a Writers Guild credit arbitration can attest.  It is unlikely that any of these would trade on a creators name.

The place where we have problems, of course, is with the New Boss companies like YouTube, Google and Facebook.  These companies don’t just trade on your name, they SELL your name as an advertising keyword thus associating the artist’s name with products, works or services without the artist’s knowledge, albeit somewhat in the background.

Try boosting a post on Facebook and selecting the attributes of the audience you want to reach.  Type in the names of 5 popular artist and I feel certain that you will find them all there.

Facebook Artist Names

We also have confirmation of this business practice from the Luke Sample affidavit in a piracy case against Google where Google executives advised Sample how to maximize traffic through Google Adwords to push Sample’s pirate site:

Luke Sample

If the U.S. expands its moral rights “patchwork”, it is likely that these business practices could come under a microscope as violations of moral rights.

Spotify to be Represented by Christopher Sprigman in Nashville Case

August 20, 2017 Leave a comment

In what I perceive to be a defining move, Spotify evidently has engaged Professor Christopher Sprigman to represent the company in the Nashville litigation (just the Bluewater case so far).  Professor Sprigman’s appearance may signify how Spotify really feels about copyright, but we shall see.

Those familiar with Professor Sprigman’s views will understand what I mean.  I take butter on my popcorn.

Global Songwriter and Composer Organizations Send Open Letter to RIAA Proposing Solution to Massive Failures to Accord Credit and Respect International Laws of Moral Rights

August 16, 2017 1 comment

[For more information go to BASCA website.]

An Open Letter

15thAugust 2017

Mr. Cary Sherman
Mr. Mitch Glazier
RIAA

Via email

Dear Messrs. Sherman and Glazier,

It was with great disappointment that we read the recent RIAA comments to the Copyright Office in connection with moral rights; in particular, with regard to the right of attribution. The RIAA’s argument prioritizes the inconvenience of dealing with accurate metadata over the principle of the protection of the rights of the people upon whose work the music business is built. In our view, and the view of many in the creator community, this is not only irresponsible, it represents a betrayal of the ‘greater common purpose’ to which so many of us are committed—a purpose with which the RIAA claims to agree.

While music creators have greatly appreciated the RIAA’s leadership on, for example, the Music Community submission on Section 512, it’s crucial to note that such a leadership requires buy-in from the community one purports to lead. In this case, not only do you not have buy-in, the RIAA comments have inspired very active opposition, including that from UK and European music creators whose work is consumed widely across the USA but whose moral rights are not recognized, in part, due to your position. The Berne Convention, revised in 1928 to include moral rights, has 172 countries around the world signed up to it; it is only the US that refuses to assert them.

To make our position clear, we urge you to read the comments filed by Maria Schneider in this matter, which we believe capture the general views of the performer and songwriter community. Maria has outlined how enforceable rights of attribution (in the form of statutorily protected metadata) can be useful, if not indispensable, tools in achieving the kind of accountability from the internet that, in other submissions, the RIAA seeks to establish. [See Maria’s comments here.]

More fundamentally, RIAA’s comments are taken by many in the music creator community as a betrayal of our joint commitment to expand opportunities for creators. Unfortunately, this divergence of views gives our common adversaries an opportunity to divide our community.

We certainly are aware that the RIAA and its members have historically not embraced the idea of moral rights, and have tended to view it as a litigation risk. But the basic metadata rights we’re talking about here are already protected by Section 1202. We are not living in ordinary times, and we’re sure RIAA is well aware of the sensitivities regarding transparency and accountability. Without accurate metadata, contributors to a work risk not getting paid. That’s a moral dilemma intrinsically linked to the issue of moral rights — and on this issue the RIAA has now aligned itself with those who seek to enfeeble IP rights.

Even anti-copyright groups like Creative Commons understand the importance of attribution. If the RIAA is seen as less artist-friendly than Creative Commons, the copyleft and all who seek to undervalue our work will benefit. What’s more, this could make the job of aligning creators with the RIAA around our combined interests infinitely more difficult.

The RIAA comments raise fears about technical issues concerning implementation of the metadata. However, we believe this misses the point. No one is asking to add new requirements here. The current ID3v2 metadata tag is clearly a ‘standard technical measure’, and includes 80 separate ‘fields’ for including all sorts of metadata, including performers, lyricists, studio engineers etc. This capability is baked in to every MP3 and AAC. The RIAA should fully support and encourage all of us in the music community to harness and protect that metadata.

Instead, the RIAA frantically lays out a litany of hurdles they claim will prevent digital platforms from giving credit to the many people that contribute to a creative work. We believe there’s no doubt music platforms will come up with innovative and effective ways to give credit. Certainly there’s no need to set expectations at rock bottom as the RIAA did in their comments.

We have no interest in imposing new requirements that are unreasonable, or that require parties to include information that they themselves do not possess. But we do expect that the metadata capabilities that the industry and Section 1202 have given us will be protected, today and into the future.

Accurate metadata is essential to the healthy digital future of music creators, it is also critical to the healthy digital future of each and every Citizen Creator. The potential to report 100% accurate usage is the greatest promise cyberspace makes to Creators. Yet, in your Moral Rights submission, the RIAA seems to approach attribution and the accuracy that metadata provides as if it were a threat.

With key efforts like the Open Music Initiative, the future value of metadata to musicians and songwriters will be absolutely critical. And if, in the process of protecting those rights, we also happen to implicate certain moral rights, so be it.

The RIAA comments go in the exact opposite direction on this crucial issue, failing to take into account the potential value of legislated accreditation via metadata and providing ethical and political cover for Google and others to treat the internet as some kind of accountability-free zone. That, of course, has much broader implications than just with regard to the issue of moral rights.

We urge you and your members to think carefully about how to move forward from here in ways that truly reflect the interests of those you claim to protect. There are corporate players here, whose unfettered commercial self-interest masquerades as ideology and who capitalize upon our perceived divisions.

While the comment period may have technically closed, there is no restriction on the RIAA revising its views, endorsing the comments filed by Ms. Schneider, and affirming the following: a) the importance of metadata to musicians and creators; b) its strategic value to rights-holders in the future of payment/accountability technologies; c) the relevance and authority of Section 1202 in protecting those rights; and d) the short-term and long-term damage and chaos that is created by encouraging music distributors such as YouTube to disrespect and strip that metadata from our valuable creative works. In fact, we hope the RIAA will join us in encouraging the Copyright Office to use its authority under Section 1202(c)(8) to expressly include all of the metadata contained in a standard ID3v2 tag as falling within the definition of CMI.

We ask that the RIAA work with the creator community to address the specific issues of implementation. More important, we strongly urge the RIAA to present a united front in our common cause to protect the rights of music creators and those who present their work.

Sincerely,

British Academy of Songwriters, Composers and Authors (BASCA)

European Composer & Songwriter Alliance (ECSA)

MusicAnswers

Music Creators North America (MCNA)

Council of Music Creators (CMC)

Screen Composers Guild of Canada (SCGC)

Societe Professionnelle des Autuers et des Composituers du Quebec (SPACQ)

Society of Composers and Lyricists (SCL)

Songwriters Association of Canada (SAC)

Songwriters Guild of America (SGA)

Songwriters of North America (SONA)

@MykiAngeline: @The_WIMN: Front And Center: @SoundExchange Senior Director Of Industry And Artist Relations, @LindaBlossBaum — Artist Rights Watch

[Editor Charlie sez: A must read interview with a true artist rights advocate, Linda Bloss-Baum.]

Music has come a long way since the age of vinyl records and cassette tapes. It wasn’t that long ago when the only way to listen to music was either attending a live performance, tune in to your favorite radio station, or purchase hard copies from your local music store. Now with the ability to stream music from the internet, listening to our favorite artist is readily at our finger tips. Anyone with a laptop or smart phone can access almost any artist and song.

It also became increasingly harder for music artists to get paid for their creations.

This is where companies like SoundExchange come into play, working at the center of digital music to develop business solutions that benefit the entire music industry. As the Senior Director of Industry and Artist Relations, Linda Bloss-Buam ensure that artists and rights owners are aware of all the services that SoundExchange has to offer.

Below, Linda shares with us how she applies her experience and training in music policies and practices, and what she is doing to increase awareness of women in the music industry.

Read the interview on the Women’s International Music Network

@RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid

On the surface, at least, the “Transparency in Music Licensing Ownership Act,” introduced in the House of Representatives on July 20 by Congressman Jim Sensenbrenner (R-WI), seems like a copyright bill that could help untangle the online music business….but the devil is in the details.

via @RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid — Artist Rights Watch

You Furnish The Emotion and I’ll Furnish the Votes

August 9, 2017 Leave a comment

“You furnish the pictures and I’ll furnish the war.”

Attributed to an 1898 cable from William Randolph Hearst to Frederick Remington on assignment in Cuba before the Spanish-American War. 

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William Randolph Hearst was one of the original purveyors of fake news in the mass media.  (You may know him as Charles Foster Kane from the Orson Welles classic Citizen Kane.  And if you don’t know Citizen Kane, make time to watch it.)

In many ways, Hearst is an historical antecedent (and perhaps a role model) for Mark Zuckerberg.  And it should not be lost on you that Hearst was elected and re-elected to the U.S. House of Representatives as a Tammany man from the old 11th District.  He ran unsuccessfully for the Democratic Party nomination for President of the United States in 1904 (which he resoundingly lost to Judge Alton Parker who resoundingly lost the election to the incumbent, Theodore Roosevelt).

I firmly believe that Zuckerberg intends to run for President.  If it turns out that I’m wrong, you can all snicker, but if I’m right….  Why do I believe it?  Because I also believe that the hangover from the Facebook Kool Aid kegger creates a pathological case of high functioning techno-fabulisim in which Zuckerberg believes that He Is The One to Save the World.  In short, delusions of grandeur on a global level.  And who at Facebook will tell him he isn’t The One?  He’s hired some political hacks to advise him who have worked on campaigns of successful candidates like President Obama for one.  Take this to the bank:  Candidates matter.  And this:  Lightning doesn’t strike twice.  These guys will be dining out on Barack Obama for many years to come.

Why do we care what Zuckerberg’s plans are?  Aside from the nausea of the possibility of a royalty deadbeat and purveyor of fake news sitting in the White House…ahem….there is actually a much more sinister reason that was well said this week in a USA Today op ed by Roger McNamee, who runs a venture capital outfit called Elevation Partners I have a lot of time for.

I invested in Google and Facebook years before their first revenue and profited enormously. I was an early adviser to Facebook’s team, but I am terrified by the damage being done by these Internet monopolies….

Facebook and Google get their revenue from advertising, the effectiveness of which depends on gaining and maintaining consumer attention. Borrowing techniques from the gambling industry, Facebook, Google and others exploit human nature, creating addictive behaviors that compel consumers to check for new messages, respond to notifications, and seek validation from technologies whose only goal is to generate profits for their owners….

How does this work? A 2013 study found that average consumers check their smartphones 150 times a day. And that number has probably grown. People spend 50 minutes a day on Facebook. Other social apps such as Snapchat, Instagram and Twitter combine to take up still more time. Those companies maintain a profile on every user, which grows every time you like, share, search, shop or post a photo. Google also is analyzing credit card records of millions of people….

Consider a recent story from Australia, where someone at Facebook told advertisers that they had the ability to target teens who were sad or depressed, which made them more susceptible to advertising. In the United States, Facebook once demonstrated its ability to make users happier or sadder by manipulating their news feed. While it did not turn either capability into a product [yet, that we know of], the fact remains that Facebook influences the emotional state of users every moment of every day. Former Google design ethicist Tristan Harris calls this “brain hacking.”

Roger McNamee just lost his membership in the Silicon Valley Tech Bros Club for violating the first rule of Fight Club.  But having said that, please appreciate the sheer balls it takes to do what Roger did in that op-ed (and you should read the whole thing for full effect).  I firmly believe he’s correct, too.

This makes Facebook’s manipulation of innocent customers actually worse than Ford with the Pinto’s exploding gas tank.  Ford’s acceptance of the cost/benefit analysis of fixing the gas tank was cold blooded and someone should have gone to jail.  But it wasn’t like they were trading on the gas tank as a feature.  What Roger is saying is what we all have suspected, which is that these people at Facebook–starting with POTUS wannabe Zuckerberg–know exactly what they are doing.  And what they are doing demonstrates that data lords are not that different than drug lords.  Except that drug lords never dreamed they could tap into a junkie market the size of the whole planet.

If you doubt the addiction, try this experiment.  Try only using your phone for phone calls for 36 hours.  Just check your email on your computer.  No email, Facebook, Twitter, Google on your phone for 36 hours.  See how you react.

The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) addresses a number of these Internet based addictions, including Internet gambling disorder and Internet addiction disorder.  Internet gambling disorder as a manifestation of the larger category of gambling disorder.  So when Roger says Facebook and Google “borrow” techniques from the gambling industry, they are playing with well known and documented addictive pathologies for profit.  And just imagine the private research that Facebook is able to conduct with over a billion users.  There’s a certain point with a very large sample size that the predictive power of probability may as well be certainty.

In fact, Facebook data lord Adam Kramer (more about him shortly) said in an interview that the large user base was one of the reasons he joined Facebook:

Q: Why did you join Facebook?

A: Facebook data constitutes the largest field study in the history of the world. Being able to ask–and answer–questions about the world in general is very, very exciting to me. At Facebook, my research is also immediately useful: When I discover something, we can use this to make improvements to the product. In an academic position, I would have to have a paper accepted, wait for publication, and then hope someone with the means to usefully implement my work takes notice. At Facebook, I just message someone on the right team and my research has an impact within weeks if not days.

Q: What are some of the interesting questions you’ve answered since you’ve been here?

A: Do emotions spread contagiously? What do the words we choose have to say about how we are and who we are?

DSM-5 (the 2013 edition of DSM) includes Internet addiction disorder in the appendix, which is where pathologies being studied start out in the psychiatric definitional world.  This essentially means that the editorial staff of DSM think there is something there, but there hasn’t been enough documentation to arrive at a uniform definition.

Roger cites to this 2014 study commissioned by Facebook “Experimental evidence of massive-scale emotional contagion through social networks” written by Adam D. I. Kramer of Facebook’s “Core Data Science Team” and two academics from Cornell.  (Cornell was one of the first campuses outside of Harvard to adopt the early version of Facebook.)

The study concluded:

Emotional states can be transferred to others via emotional contagion, leading people to experience the same emotions without their awareness. Emotional contagion is well established in laboratory experiments, with people transferring positive and negative emotions to others….

In an experiment with people who use Facebook, we test whether emotional contagion occurs outside of in-person interaction between individuals by reducing the amount of emotional content in the News Feed. When positive expressions were reduced, people produced fewer positive posts and more negative posts; when negative expressions were reduced, the opposite pattern occurred.

These results indicate that emotions expressed by others on Facebook influence our own emotions, constituting experimental evidence for massive-scale contagion via social networks. This work also suggests that, in contrast to prevailing assumptions, in-person interaction and nonverbal cues are not strictly necessary for emotional contagion, and that the observation of others’ positive experiences constitutes a positive experience for people.

Now what ever do you suppose that POTUS aspirant Zuckerberg did with this emotional contagion methodology, hmmm?  And remember, the only reason we know about this study at all is because it was published.  My bet is that the two academics probably demanded that the research be published.  I wonder which particular emotion Facebook was interested in measuring?

The twist on this particular study is that it was done on the sly.  Had the study been conducted purely in an academic environment, it would have to have been approved as human subject research by the Cornell Institutional Review Board.  Subjects are given the opportunity to opt out.  This is exactly the kind of thing that Mr. Kramer evidently found oh so frustrating about academic life.

The study’s subjects were Facebook customers–well, users anyway–and none of them were told that they were being observed, much less offered an opportunity to opt out of being studied like lab rats.  That made the study like the Menlo Park version of The Truman Show.  

I’m not the only one who found it disturbing.  The Proceedings of the National Academy of Sciences published the paper, but also found it necessary to include an Editorial Expression of Concern regarding the underhanded nature of not informing the subjects that they were subjects.

Questions have been raised about the principles of informed consent and opportunity to opt out in connection with the research in this paper. The authors noted in their paper, “[The work] was consistent with Facebook’s Data Use Policy, to which all users agree prior to creating an account on Facebook, constituting informed consent for this research.” When the authors prepared their paper for publication in PNAS, they stated that: “Because this experiment was conducted by Facebook, Inc. for internal purposes, the Cornell University IRB [Institutional Review Board] determined that the project did not fall under Cornell’s Human Research Protection Program.” This statement has since been confirmed by Cornell University.

Obtaining informed consent and allowing participants to opt out are best practices in most instances under the US Department of Health and Human Services Policy for the Protection of Human Research Subjects (the “Common Rule”). Adherence to the Common Rule is PNAS policy, but as a private company Facebook was under no obligation to conform to the provisions of the Common Rule when it collected the data used by the authors, and the Common Rule does not preclude their use of the data. Based on the information provided by the authors, PNAS editors deemed it appropriate to publish the paper. It is nevertheless a matter of concern that the collection of the data by Facebook may have involved practices that were not fully consistent with the principles of obtaining informed consent and allowing participants to opt out.

Quick—when you signed up for your Facebook account, did you know you were agreeing to be a lab rat?

I am not an authority on IRBs and human subject research, but I have encountered it in the legal context.  My impression of that encounter would lead me to believe that Cornell got it wrong–the study should have been submitted to their IRB and should have followed the “Common Rule” which basically says you have to tell people they are being studied and allow them to opt out.  Based on the unusual editorial comment from the Proceedings of the National Academy of Sciences, they have concerns, too, so it’s not just Roger and it’s not just me.

So here’s the question:  What if a candidate for President controlled “the largest field study in the history of the world”?  What if that candidate used that data for polling at a minimum and in an effort to control public opinion in an extreme case, all based on “Facebook’s Data Use Policy”?   How comfortable are you that any result that candidate produces isn’t somehow tainted by the exploitation of addictive behaviors that Roger McNamee describes in his op-ed?

Who needs Tammany when you’ve got the Zuck?

Please Vote for SXSW Panel Picker “Getting to Beta Without Getting Beat Up”

August 8, 2017 Leave a comment

We have proposed a panel for SXSW in the Panel Picker with some great speakers I’ll be moderating.  “Getting to Beta Without Getting Beat Up” will emphasize the importance of licensing strategy milestones that overlay a music-tech startup’s product development strategy milestones.

A well-executed licensing strategy is every bit as much a part of the supply chain logistics as any other element of product development, if not more important.

A buggy product can usually be fixed.  Failure to execute a bespoke licensing strategy can subject the entire company to crippling and endless copyright infringement lawsuits.  In fact, if you are unlicensed or insufficiently licensed, one thing is a pretty sure bet:  The more successful you are, the more likely it is you’ll be sued–a proposition ripped from the headlines.

That scenario can waste the stockholders’ money, be defocusing in the extreme for management and severely damage relationships with the creative community–the life blood of any music startup.

On the other hand, “over clearing” while less costly than litigation still syphons off resources that for the most part lie fallow.

Our panel are all experienced hands in the licensing and metadata world and are themselves entrepreneurs:

  • Keith Bernstein, Founder, Crunch Digital
  • Rahul Rumalla, Chief Technology Officer & Head of Product, Paperchain
  • Alan Graham, Co-Founder, Technical Architect, OCL 

Please consider voting for our panel in the SXSW Panel Picker at this link, we’d really appreciate your support!

 

 

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