MTP Podcast: The CASE Act and Senator Ron Wyden’s Google Connection
Shownotes for the Podcast:
Even More Bad Faith From Ron Wyden on Copyright Small Claims Legislation musictechpolicy.com/2020/01/16/even…ms-legislation/
CASE Act Materials (Flow Chart, Explanation of Holds) artistrightswatchdotcom.files.wordpress.com/202…pdf
Senator Ben Sasse’s Data Center Influences–What’s Up With Senator Ben Sasse’s Vicious Little Amendment on Pre-72? musictechpolicy.com/2018/06/28/what…ment-on-pre-72/
Are Data Centers The New Cornhusker Kickback and the Facebook Fakeout? musictechpolicy.com/2018/07/09/are-…cebook-fakeout/
The Trumpet that Shall Never Call Retreat
Not as famous as some of his other speeches but one of the great ones. He gave the speech on March 25, 1965 after leading a march of 25,000 from Selma to Montgomery Alabama. Of his many life lessons, it must also be said that students of rhetoric would do well to spend a very, very long time listening, reading and thinking about speeches by Reverend Dr. Martin Luther King and his other writing. There is a transcript here.
So Much For the Public Interest: Sonos CEO @Patrick_Spence Reveals the Harsh Retaliation of Google and Amazon
If you’ve ever been to the Huntington Hotel in San Francisco’s toney Nob Hill, you can’t miss the hotel’s famous restaurant called The Big Four. The eponymous paean to 19th Century monopolists, “The Big Four” are railroad men: C. P. Huntington, Charles Crocker, Mark Hopkins and of course Leland Stanford, for whom Leland Stanford Google University is named. The railroads of the 19th Century were in many ways the Internet of their day–he who controlled the American railroads controlled the life blood of the world’s economy. And I do mean “he.”
One can just imagine little Larry and little Sergei sitting in the clubby Big Bar and letting their imaginations run wild with dreams of how they, too, could dare to be as ruthless as these four cutthroats…sorry…titans of progress. Yet The Big Four would be salivating at the thought of the level of monopoly profits that Google has been able to extract from the economy during the “Stanford window” (being the period of time that a group of companies can pillage their competitors before the government stops them, either through the courts or by an act of Congress).
But those dreams all came to a head on January 17 at a field hearing of the House Judiciary Committee’s antitrust subcommittee at the University of Colorado Law School. You can see the video of the event above.
Sonos CEO Patrick Spence was one of the witnesses. It’s not so easy to find the written witness statements, but I tracked down Mr. Spence’s statement which is worth reading. Recall that since 2002 Sonos has made a home speaker that supports a multiplicity of music streaming services. A Sonos speaker looks an awful lot like Amazon’s Alexa speaker or the Google Home speaker, but predates each by many years.
Mr. Spence summarized the Sonos business model:
Our business model is simple — we sell products which people pay for once, and we make them better over time with software updates. We’ve achieved success without trying to monetize the data of our customers. We live by the mantra that if we keep making great products, customers will recognize that, and come back and buy more over time.
In other words, the data scraping that is at the heart of Google and Amazon’s trillion dollar market caps is not part of the Sonos equation. Surveillance capitalism is not the prerequisite for success. Neither is wardriving through every loophole in user expectations of privacy, advertiser fraud or copyright.
Mr. Spence warns the Subcommittee in a way that is very familiar to artists. The size and scale of these surveillance capitalists is a self-fulfilling perpetual motion machine on steroids. Allowing them to run loose on the public without regulation makes about as much sense as it would to have put The Big Four in control of the Interstate Commerce Commission (that was created for the public to resist the anticompetitive passions of the railroads). Mr. Spence explains the danger (in a passage reminiscent of the seven anonymous amici in the Microsoft antitrust case)(my emphasis):
I welcomed this Committee’s invitation to testify because I’m gravely concerned that the market conditions that allowed Sonos to innovate and thrive — and many smaller companies like us — are endangered by the rise of a small group of companieswith unprecedented size, scale, and dominance. And although I appear with a bit of trepidation as it may impact the willingness of these companies to provide us access or to partner with us, Sonos is strong enough and successful enough to say what goes largely unspoken, but remains very much on the minds of countless tech entrepreneurs at smaller firms and people thinking about starting new businesses. One reason they do not speak up is that they’re afraid of how dominant platforms could retaliate against their businesses. [W]e also know from hard experience that they have come to use the scope of their platforms and their overwhelming dominance in certain markets to unfairly disadvantage competitors and squelch potential competition.
Mr. Spence’s concerns will resonate with any artist who has had to deal with YouTube’s licensing practices–remember Zoë Keating’s experience with YouTube’s intimidation tactics:
My Google Youtube rep contacted me the other day. They were nice and took time to explain everything clearly to me, but the message was firm: I have to decide. I need to sign on to the new Youtube music services agreement or I will have my Youtube channel blocked…. What should I do? As much as it makes me grind my teeth, does having all my music forced onto Youtube’s music service really just not matter all that much? Should I just close my eyes and think of England?
The Subcommittee hearing is another sign post along the path of stopping these anticompetitive and loophole seeking practices. Because make no mistake–if Google will not only solicit a showdown with Oracle over Google’s tortured interpretation of verbatim copying as fair use but also prefer to litigate with Sonos rather than change Google’s tactics in the marketplace. Google will definitely leverage that fear of retaliation among artists. Sometimes it backfires, like it did with Le Tatou’s expose of YouTube’s tactics against YouTubers over the European Copyright Directive (Ce Qu’on Ne Vous Dit Pas Sur l’Article 13 (What No One Tells You About Article 13)).
But it’s more likely that fear of retaliation will result in many, many artists choosing to take the abuse rather than engage in Google’s game of chicken à la lawfare that they cannot afford even if they could withstand the retaliation.
Judge Leval said of the fair use defense that the primary question is whether the otherwise infringing use contributes to the intellectual enrichment of the public. This utilitarian public interest test is largely applicable to competition law as well (if not all public laws). So how do Google’s business tactics in crushing opposition from Oracle to Sonos and beyond further the public interest? They don’t.
Mr. Spence sums up the problem facing lawmakers and the courts:
This is one of the many reasons we believe that [Congress] needs to act urgently to support the next set of big ideas and to create a fair playing field for smaller technology companies. If we do nothing, America’s leadership in innovation will suffer with inevitable negative long-term consequences for American consumers and the economy as a whole.
Instead of being impaled on the fangs of The Big Four, we just get the FAANGS. (Facebook, Amazon, Apple, Netflix, Google and Spotify.)
The Dopamine Delivery Device: The Android/Fair Use Connection
If you’ve ever seen The Insider starring Russell Crowe you know the story of Dr. Jeffrey Wigand, the whistleblower’s whistleblower. Dr. Wigand worked for one of the Big Tobacco companies (Brown & Williamson) to help them perfect nicotine addiction. He eventually couldn’t take it anymore and went public with his inside knowledge.
Dr. Wigand identified cigarettes as a “delivery device” and his former employer Brown & Williamson as being in the nicotine delivery business. In Wigand’s 60 Minutes interview, Mike Wallace described the process:
Dr. Wigand says that Brown & Williamson manipulates and adjusts that nicotine fix, not by artificially adding nicotine, but by enhancing the effect of the nicotine through reuse of chemical additives like ammonia, whose process is known in the tobacco industry as “impact boosting.”
Of course one of the problems with addictive behaviors is that the people who need the information most are the ones least disposed to hear the truth…because they’re addicted.
So it is with smartphones, and particularly Google’s Android. As is well-documented now, smartphones are a key element in the behavioral addiction which many believe (and studies back this up) is just as addictive as substance addiction like nicotine. Ever notice the similarities between the little Android R2D2 and Joe Camel?
That’s right–smartphones are a “delivery device” for the dopamine rush at the core of the addiction. In Google’s case, Android smartphones are the gateway delivery device for loosening user inhibitions about giving up their private information to Google.
So how to enhance that addiction, how to make it “impact boosting” like Brown & Williamson’s chemical additives? One way is with music, the ultimate honeypot for data scraping. And that data is so valuable and the addictive properties of music are so pervasive that Google is willing to risk a lot to get as much of it as they can as fast as they can.
Including distorting copyright exceptions into loopholes that Congress never intended and in the case of fair use really have no precedents. Fair use is at the core of Google’s commercial intentions, and at a massive scale.
Fair use gets them content, content gets them addiction, and Android gets them Google accounts that they can use for very precise data profiling and aggregation. So Google’s fair use concepts are transformative alright, if you think Dr. Frankenstein transformed the monster.
It’s easy to understand why Android is so important to Google’s business. It’s a delivery device. And if you don’t think it’s true, check yourself for “cellphone vibration disorder.”
Even More Bad Faith from @RonWyden on Copyright Small Claims Legislation
[This post first appeared on Artist Rights Watch]
Senator Ron Wyden is up to his old tricks–he’s got a secret hold on the CASE Act and is taking his usual ridiculous positions just to see if he can get away with it. His day of reckoning has been coming for a long time and may have just arrived. We don’t come to the Congress looking for a fight, but he does. Maybe now he’ll get one. Like any other bully, there’s only one way to make it stop.
Why would Senator Wyden care about the CASE Act? Because Google does. And why does Google care? Because the CASE Act would provide meaningful relief to artists in all copyright categories caught up in DMCA hell, the ennui of learned helplessness brought on by the call and response of notice and counter notice that gives Google domain over vast numbers of copyrights from people who can’t afford to fight back in federal court. And Google cannot have that.
So what is going on that prompted a kind and reasonable fellow like Copyright Alliance chief Keith Kupferschmid to accuse Senator Wyden of bad faith negotiations in the above tweet? Quick recap: Remember there’s new legislation working its way through Congress that would establish a new “small claims court” in the US called the CASE Act. The immensely popular and bipartisan bill introduced by Rep. Hakim Jeffries, passed the House of Representatives on a 410-6 vote. Yes, that’s right–410-6 in favor of the CASE Act. (If you’re interested, you can download the CLE materials I put together for a recent bar association panel on the CASE Act. This has a detailed explanation of holds, copy of the bills, and some other public materials.)
The legislation is now in the Senate which is the land of legislative secret holds and the kind of faux collegiality based on unanimous consent voting outside of the procedures we normally think of, especially floor votes. At a high level, here’s how it works: The Senate staff essentially emails around legislation and if no Senator objects to it, it is passed by unanimous consent. Called “hotlining” this is pretty common in the Senate. It does not require scheduling floor time and gets things done.
But see what they did there? If just one–one–senator who objects to the hotlined legislation, it all grinds to a halt. This is called placing a “hold” on the Senate version of a bill. Which brings us to Senator Ron Wyden.
Senator Wyden has a history of placing holds on copyright legislation. Most recently, he placed a hold on the Music Modernization Act in order to extract some further punishment for the old guys and dead cats who saw a glimmer of hope in the pre-72 part of the bill (Title II). In what has become standard practice, the banshees from the Electronic Frontier Foundation and Public Knowledge swing into action with their Fear Uncertainty and Doubt campaigns in an effort to weaken copyright in any way they can get away with.
You know, these guys:
EFF and Public Knowledge treated us to this kind of propaganda:
Both EFF and Public Knowledge used the Phone2Action tool which features this permission set for Twitter that sure looks like it’s designed to create a bot net:
So back to Senator Wyden. EFF and Public Knowledge are not the only ones with ties to Google in particular and Big Tech in general. Senator Wyden represents Oregon, but he is actually from Palo Alto in what was once called the Santa Clara Valley, but is now generally called Silicon Valley. And what does Silicon Valley need that Oregon has?
Huge honking amounts of electricity to run the massive data centers that power Big Tech and allows them to store fuflops of data about you and me. Remember–it takes about as much electricity to run YouTube as it does to light the city of Cincinnati. And unlike Teslas, etc., that run on the magical power of cherubic elves jogging on golden flywheels, Google needs the same electricity that comes out of the wall from whatever source it is derived. Here’s some data on the data centers:
Needless to say, when you are groovier than thou Googlers, this little fact is distasteful and really jacks with your self-image. Hence, Google seeks out “green” power as part of the mix–and here’s where Oregon comes in. Courtesy of the taxpayer, i.e., you and me, Oregon happens to have a bunch of hydroelectric power from the Columbia and Snake Rivers Hydroelectric Project that also extends into British Columbia.
Well, it’s not just courtesy of you and me, it’s also courtesy of the sacred lands given up by Native Americans for The Dalles Dam (Google’s main Oregon data center is located in The Dalles). The Dalles Dam has an interesting history with Oregon’s local Confederated Warm Springs Tribes and the Yakama Indians, too. Thanks to the ever efficient Army Corps of Engineers and a bunch of federal taxpayer money, the Dalles Dam hoodwinked the tribes into giving up sacred land, which is now at the bottom of the reservoir, but that’s a story for another day.
According to The Oregonian:
Data centers have become one of Oregon’s biggest industries, with Google, Apple, Facebook and Amazon spending billions of dollars to buy and equip online storage facilities in rural parts of the state. They’re lured primarily by tax savings, which can shave tens of millions of dollars from a server farm’s annual operating cost.
Earlier this week, The Dalles city council and Wasco County commissioners voted to approve a package of “enterprise zone” tax breaks that exempts Google’s buildings and computers from local property taxes. The pact could save Google tens of millions of dollars or more over the 15-year life of the deal.
In exchange, Google will make an up-front payment of $1.2 million to local governments and $800,000 annually after that.
And who was formerly the chair of the Senate Energy & Commerce Committee? You guessed it.
So back to Senator Wyden and his hold on the CASE Act (I won’t blame you if you’d prefer a shower right about now). Remember that the CASE Act is the biggest threat to Google’s DMCA-based business model to come along. So Wyden’s marching orders on the CASE Act is the same as it was on MMA and the same as it’s been for years. Slow it down, weaken it, let the process grind it to bits if possible or extract so many concessions that it’s toothless or as toothless as it can be.
And that is why a good guy like Keith Kupferschmid is calling out Ron Wyden. Because there’s #JustOne senator standing in the way of justice.
Guest Post: Mr. Muzzey Goes to China: How One Composer is Using Detection Services to Get Paid on Unlicensed Music Uses
By Kerry Muzzey
[We’re honored to have Kerry Muzzey back again to tell his story of how one composer is working with music detection services and his US PRO to catch thousands of unlicensed uses in China and elsewhere. Really incredible tale well told. This post was created from a Twitter thread that Kerry posted, follow him @kerrymuzzey]
This is a post for my composer brethren and my copyright friends. It’s about my dramas with China, and it’s about why you should be using detection services to track your music on YouTube and on TV.
The Basics: CCTV is China Central Television: it’s a massive network in China with 50 networks under its umbrella. They don’t license music, because China. But also because of something else.
MCSC is the performing rights org in China: basically they’re the ASCAP/BMI in China and MCSC have reciprocal agreements with ASCAP/BMI just like most of the foreign PRO’s do.
I use Content ID to track my music that appears on YouTube. This is how I found out that over the years CCTV has used my music in a ton of their TV shows: they uploaded them to YouTube and Content ID found these uses for me.
CCTV didn’t license my music for their TV shows which then went onto their on-demand services and onto YouTube, where the shows were monetized.
I’ve been going back and forth with CCTV for seven months now as I try to resolve my claims with CCTV because I should’ve been paid for these uses of my music.
Short version: CCTV doesn’t know what it’s doing. At all. Like, “I don’t know how they manage to get programs onto air” levels of ineptitude. First they admitted that they didn’t know my music titles because the torrents they got the music from didn’t have song titles.
Then as if that wasn’t bad enough, the official CCTV Copyright Department said that all music originating in the U.S. is Creative Commons, which they read on a website once, so that means they can use all US-originating music for free because it’s all subject to a Creative Commons “license.” (FYI this is not true, but it’s China soooo….)
In November CCTV came up with a new and different answer: CCTV pays an annual license fee to MCSC and in exchange CCTV can use any music it wants in CCTV’s shows because MCSC has agreements with ASCAP and BMI. I am a BMI writer. CCTV says that BMI gives my rights to MCSC and so I need to deal with MCSC, it’s not CCTV’s problem.
Now, we all know that this isn’t true: ASCAP/BMI don’t represent synchronization rights or master recordings: they rep only public performance rights. Performance rights are necessary in addition to, not in place of, sync/master licenses for use of music in TV shows, etc. Pretty basic stuff.
Meaning that BMI/ASCAP can’t grant these rights to MCSC because they simply don’t have Sync or master rights in the first place. And you can’t give what you don’t have.
BUT when CCTV is paying millions annually to MCSC, *you* try telling China’s largest broadcaster’s lawyer that they are misunderstanding what rights MCSC is granting to them (and that they’ve been doing it wrong since 1992). But this was a BIG brick wall in my way.
So I contacted BMI’s International Department and explained to them what was happening. They’re familiar with me because I’ve had this same issue with most of the EU PROs after finding 6000+ unlicensed uses of my tunes on 100s of EU TV shows (in this case from using tools from Tunesat).
And BMI said “you are 100% correct: we obviously don’t have those rights to grant, they’re yours exclusively and we don’t rep sync or masters. MCSC and CCTV are wrong.” And BMI International wrote a very succinct letter for me that I could give to both CCTV and MCSC that clarifies this.
I emailed that letter to CCTV and MCSC yesterday morning explaining to them both what rights MCSC does and doesn’t grant to CCTV. You’d think that China’s largest TV network would know what they were paying millions to MCSC for each year.
You’d also think that MCSC would be pretty clear with China State Television about *WHY* CCTV is paying them millions of dollars and what they’re getting for that money.
And you would think that some random composer wouldn’t have to explain it to them but OK.
And then last night, 12 hours after I emailed the official BMI letter, I got an email from MCSC cc’ing CCTV’s lawyer saying “you are correct, we do not represent any of these rights and you have to deal with CCTV for these infringements.”
Progress! BUT…MCSC’s response of course leaves me with some serious questions.
1) CCTV pays big fees to MCSC for public performance fees but doesn’t do cuesheets. So I don’t know how any of that money is going to the music being used in the TV shows (which isn’t licensed anyway because they don’t license music, full stop).
So… where is that money going? It’s going somewhere. Who’s getting it? CCTV pays MCSC supposedly thinking that MCSC grants them permission to use all music in the world. Which means that MCSC takes CCTV’s money, but MCSC doesn’t get cuesheets from CCTV so they can’t distribute those royalties, which means that MCSC has a lot of money to acct for.
2) if CCTV has thought that their MCSC annual fees pays for “use any music you want for free” since the early 1990s when MCSC was formed and has never done cuesheets, hasn’t MCSC wondered where the past 27 years’ worth of cuesheets are so they can distribute those royalties correctly?
And here’s the thing that all of this turns on – the one thing that is exposing all of this: DETECTION TECHNOLOGIES like Content ID, AdRev or Tunesat. These technologies are the X-ray specs that have revealed all of this.
The other thing that this drives home for me: the importance of our PROs. I only made this progress because BMI came to my rescue. Should BMI have to write a letter telling China’s PRO what performance royalties are and how they work?! No – but it’s China.
I’m suddenly acutely aware of the interconnectedness of our music-and-broadcasting ecosystem, where PROs are basically under attack from places like Discovery, and where none of my composer friends realize that their music – their work – is being used in places like the huge China market without their knowledge, or permission, or payment. PROs like MCSC are collecting the money for it but not distributing it, so everyone profits except for the composer whose work is the thing being bought and sold without even knowing.
As a composer your work IS out there being used – correction, being stolen – and being bought, sold and capitalized on like someone selling a hot car stereo, except the buyers and sellers are major corporations and broadcasters. Those TV shows with the composer’s stolen music end up on YouTube where YouTube and the broadcaster get to sell ads on them – and you, composer, are none the wiser, having no idea that your iTunes album or SoundCloud uploads are underscoring an entire TV series. Because no one checks.
UNLESS you happen to have a detection technology searching for your audio fingerprints – and most composers don’t. And well, doesn’t this all seem a little bit… criminal? Illegal? Doesn’t it kinda feel like no one is minding the store? So here’s the thing: you have to mind your own store and buy your own x-ray specs. Explore detection technologies; see what you find.
Run into problems like mine above? Your PRO is your friend: they’re the closest thing we composers/songwriters have to a union or collective representation. They’re there to help you. It can take time – they’re overwhelmed & understaffed. But they’re on your side.
And the thing is, they don’t know that this stuff is happening unless their members tell them about it. And by the way, it’s not only China that’s a problem. In just the past two months, BMI has had to write letters for me to the PROs in Germany, France, Spain, Austria, Switzerland, Italy and the Netherlands telling each of them that “BMI doesn’t give you sync or master recording rights, you have to get those from the publisher and label.”
Each PRO in those countries? Floored. Dumbfounded. This was news to them. And in each case their response is the same: “Why is this the first time we’re hearing about this? Why now?” And the answer is “detection technologies.” Because of that tech, these thefts of our works are finally pinging on radar screens. But you have to be using the tech to hear your ping.
You can’t rely on TV networks to do cue sheets like they’re supposed to, you can’t rely on TV shows ex-US to play by the rules and license their music – but you can rely on detection technologies to discover these thefts of your work. They’re pretty darn robust.
This was way longer than I anticipated, but it’s a heck of a story & while the ending is still TBD, it looks like the good guys might win. Composers: know your business, know your rights, try out the detection tech, support your PROs.
And for the legal folks out there who know about stuff like financial crimes…. shouldn’t somebody have stumbled across this already? Audited MCSC by now? Our industry needs someone to Erin Brockovich China’s PRO & broadcasters.
A P.S. to this thread that I forgot to include: HunanTV & Beijing TV also pay annual performance license fees to MCSC but neither do cuesheets, same as CCTV. So MCSC can’t distribute the owed performance royalties. SO…
What does MCSC do with the money?
New update:
The saga continues: BMI and MCSC (China’s BMI) have told CCTV that they misunderstand what rights they grant & have re-states that neither can grant sync or master recording rights. CCTV now insists that both entities are wrong, and that MCSC definitely holds the rights to be able to automatically grant gratis master recording & sync rights to any music at all, worldwide, in any media, because BMI grants those rights to MCSC who has granted them to CCTV but MCSC just doesn’t understand their own contract. I’m not kidding: this is happening.
If anyone from PRS For Music, ASCAP or BMI [or GMR or SESAC] is following this thread, you guys really need to bring the hammer down on MCSC for its absolute ineptitude. And while you’re at it, ask MCSC where all your performance royalties are.
Stopping Google’s End Run: No Safe Harbor Privilege in Trade Agreements
Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA). Less discussed is the part of USMCA that incorporates concepts of the failed DMCA from US law. The chances of doing something to lessen the blow are dwindling now that the USMCA has passed the House of Representatives and moved on to the Senate. We still have a chance to have an impact in the Senate, but time is going by.
Google’s USMCA Back Door
Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.
But see what they did there? Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege. That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud. And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.
That is what we need to stop cold in its tracks. And by “we” I mean all creators–not just music, but artists in all copyright categories.
What is to be Done?
There’s a few ways to do this. First, the simplest thing is to ask your Senators to make a statement for the record opposing the safe harbors being included in any trade deal, including USMCA.
Then, realize that significant legislation comes with something called “legislative history” which is a stand alone document that is a narrative explanation of what the Congress intended with the bill. The legislative history for USMCA has not been finalized yet, but the clock is ticking. (You can read the legislative history from the House of Representatives on the Music Modernization Act if you want to get an idea of what this will look like. Both House and Senate issue these “reports”.)
Courts often review the legislative history when trying to “say what the law is” as a way of defining the intentions of Congress, sometimes years or decades after a particular bill was enacted into law. It’s important that the USMCA legislative history reflect that Congress was not throwing the door open to Google to incorporate special privileges.
One other way is to require the U.S. Trade Representative to consult with relevant committees of Congress before ever doing this again. This takes the back room dealing out of it, or at least limits it.
Creators should be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 “(Legal Remedies and Safe Harbors)”–and that’s the problem floating beneath the surface of USMCA. Just at a time when not only has the copyright small claims court bill (CASE Act) passed overwhelmingly in the House, but we are also expecting the Copyright Office report on the DMCA safe harbor and we are starting to win victories over the value gap in Europe, we don’t need US trade agreements to perpetuate and expand the bad DMCA safe harbors (17 USC Sec. 512 et seq for those reading along at home). Particularly when the world is moving past those privileges and US law is frozen in amber.
These concerns arise because the USMCA incorporates the highly controversial “DMCA safe harbor ”. This perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades just at a time when the CASE Act is about to give some relief, especially to photographers, film makers and music artists. Creators simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States especially if the US ends up negotiating a bilateral trade agreement with the UK after Brexit.
The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.” The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement. The House of Representatives has recently passed the CASE Act to deal with this very problem and I expect the Senate will take up the CASE Act in the coming weeks. It would be a bizarre twist for the Congress to plug one loophole only to allow another through the back door of trade agreements. (Not to mention the showdown over Google’s fair use loophole brewing in the Supreme Court in the Google v. Oracle case.)
Even if the US rolls back the DMCA safe harbor, it’s possible that we may be stuck with whatever safe harbor privilege that Google snuck into the USMCA as a stand alone regime. That would be unacceptable.
Take Action
I encourage readers to call on your representatives and ask that they include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of Article 20.89 that perpetuates the unworkable DMCA regime. The legislative history should also disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors. This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the exact opposite direction of the Article.
If you agree with these concerns, I recommend that you call the Senate switchboard at 202-224-3121 and tell your Senators that you want (1) the USMCA legislative history to place a limitation on incorporating DMCA in future trade deals and (2) Congress to require the US Trade Representative to consult with Congress. And you want them to make a statement for the record opposing inserting safe harbors in any trade deals, including USMCA.
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