Archive for February, 2010

"Why Artist Free Agency Matters" 10 Years On

February 27, 2010 Comments off

I thought some artists might enjoy reading a paper I presented in 2000 titled “Why Free Agency Matters: The Coming Changes in Record Company-Artist Relations“. This was the beginning of my artist-as-free-agent theory and philosophy. Although I’d probably change some of the reference points if I were to re-write it today, the essential idea is there.

From time to time over the coming weeks I will revisit some of the essential ideas in the article and examine how they have held up over the intervening 10 years.

See also: Artist rights are human rights

Twenty Questions for New Artists Series by Chris Castle and Amy Mitchell:

See also Publishing Company/Marital Status/Instruments and Inventory/Passport and Work Permits

See also: Insurance/Legal Names/DOB and Nationality

See also: ISRCs/Unions/Side Projects

See Also: Pre-Existing Contracts and Aggregators

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

Conflict Search Goes European: Brussels launches antitrust inquiry into Santa’s Toyshop (aka Googleplex)

February 24, 2010 Comments off

Remember this quote from Dana Wagner, then lead antitrust counsel for Google? “‘We want to be Santa Claus,” Mr. Wagner says. “We want to make lots of toys that people like playing with. But if you don’t want to play with our toys, you’ve got us. ‘We can’t really do evil things very easily – and if we did, you would leave.’”

But “[o]ne day in June 2006, search startup Foundem vanished from Google. Foundem is the developer of a “universal vertical search” technology, and currently offers comparison shopping across a range of consumer and travel categories by drilling down into vendor sites and returning details of actual flights and products. But on 26 June 2006, Google flipped a switch and all of the obvious comparison shopping keywords no longer applied for the company. Foundem had been effectively ‘disappeared’ from Google search results.” Thank you, El Reg.

“‘Google is in a position to pick the winners in just about every web-based market,’ says antitrust lawyer Gary Reback, who is part of the charge against Google Book Search. And, he adds, ‘it can do it without anyone even knowing.'”

And that is the point. Contrary to what Mr. Wagner says, Google can do evil things very easily. Just ask any company that has been “disappeared” by an adjustment to the Google algorithm (heavily protected by the IP rights that Google ignores when it comes to creators).

I’m sure that “disappeared” concept is not very popular at the Googleplex–kind of like Santa absconding with Mommy and the toys. Another place it’s not too popular is Brussels.

So how did the Smartest Guys in the Room prepare themselves for their first real Antitrust Beauty Pageant? First and foremost, by a lack of supervision. The first question you have to ask in this kind of meltdown is where was the board? Nowhere to be seen, apparently.

Second is, who programmed the algorithms to penalize competitors and push Google’s own products and services to the front of the line? Someone did. Just like YouTube would like you to believe that the direct infringement of other people’s work is “automatic”, someone had to decide that it could be automatic, just like some person had to decide to disappear Foundem to the back of the line in Google search results. Actually, Google can do evil things very easily–but they do it in the background to the proverbial “guys in the garage” – the next wave of innovators who have a difficult time fighting back, either because they are not as rich as Google (almost everyone) or because the harm is so massive that they would go broke trying to fight on Google’s litigation pitch. Particularly when Google can go to the public markets to raise litigation funds to perpetuate what polite company would call infringement. (Roughly like printing money.)

Some person told the machines what to do, just like some person perpetrated the bad acts that became the financial meltdown. And given the reputation of the Google leadership team for hands on involvement, it seems unlikely that a low level employee acting alone would be solely responsible. But if it gets that far, I’m sure we’ll find out to everyone’s shock and awe that there was one bad apple somewhere.

But most importantly for setting the tone for Google’s operations worldwide was Google Books. I guess there may be a more efficient way to alienate every creator on the planet all at once, but I frankly don’t know what it is. The bungling of the Google Books land grab has focused the governments of the world on Google and its activities–probably some of the WORST legal advice ever given.

As we have seen with Google Books in Europe and elsewhere, Google is a company that thinks nothing of attacking countries. History has shown that very few nations have been able to hold on by force to territories that they took by force. And taking someone’s national heritage by force is close enough, and Google Books is clearly an attempt to take whole swaths of national heritage and put it under the control of the Leviathan from Mountain View. And don’t forget–they have said that books are just the beginning. Movies and music are next. (They’ve actualy already started with movies on YouTube.)

And now–now we find in the Financial Times that “[t]he European Commission has launched a preliminary antitrust investigation into Google’s search engine and its search-advertising service [in response to complaints about its search practices] from Foundem, a UK price comparison service, and, a French legal search engine, both of which had complained that they had been relegated to an unfairly low place in Google’s search rankings.”

The story of UK startup Foundem is quite interesting (see “When algorithms attack, does Google hear you scream?”: “One day in June 2006, search startup Foundem vanished from Google. Foundem is the developer of a “universal vertical search” technology, and currently offers comparison shopping across a range of consumer and travel categories by drilling down into vendor sites and returning details of actual flights and products. But on 26 June 2006, Google flipped a switch and all of the obvious comparison shopping keywords no longer applied for the company. Foundem had been effectively ‘disappeared’ from Google search results.”

“There is a widespread view that Google’s rankings are untouched by human hand, crafted impartially by machine, and machine alone. But there’s much more to it than that – Google’s verdicts on landing page quality are Google’s opinion, and the company even says as much, sometimes. The algorithms play a part in the verdict, certainly, but algorithms are produced by humans working to policies, so you could view them as a prism through which Google’s opinions are projected.”

We previously introduced the concept of “Conflict Search“. A good definition of Conflict Search is:

“Over several years…we’ve built the infrastructure, search algorithms, and presentation mechanisms to provide what we see as just the first step in the evolution toward universal search…using it to blend content from [Google] Images, [Google] Maps, [Google] Books, [Google] Video, and [Google] News into our web results.”

And who said that? Marissa Mayer, VP Search Products, Santa’s Workshop, quoted on her description of Google’s “Universal Search” initiative.

As Foundem says in their eye-popping complaint filed with the FCC:

“Universal Search transforms Google’s ostensibly neutral search engine into an immensely powerful marketing channel for Google’s other services. When coupled with Google’s 85% share of the global search market, this gives Google an unparalleled and virtually unassailable competitive advantage, reaching far beyond the confines of search. Universal Search allows Google to leverage its search engine monopoly into virtually any field it chooses. Wherever it does so, competitors will beharmed, new entrants will be discouraged, and innovation will inevitably be suppressed. These are not hypothetical risks. Although Universal Search is still in its infancy, there are already compelling examples of the harm it has done to competitors across a range of markets.”

In a word, Conflict Search. Santa is not neutral.

Foundem is fighting back. The best way to fight bullies is to fight bullies.

Like the man said, “the harder they come the harder they fall.”

The Spy Who Consulted Me Redux: The Consultation of the Mikado

February 18, 2010 Comments off

There is much ado about secrecy amongst the anti-copyright crowd these days, power and influence being what it is. Lots of intrigue, mandarins worthy of the great Pooh-Bah himself plotting and scheming to influence the levers of government and tame the great Leviathan. All in the name of consumers, of course.

Michael Geist is certainly no stranger to such intrigue, yet is very critical of secrecy and all things not transparent when it comes to international intellectual property policy. So it would seem that any comings and goings in the halls of power that he might have would surely be activities he would want out in the open for all to see. Particularly with what one might call “covered executive branch officials.” If one were trying to find a name for such folk. And indeed, with a media darling such as Geist, surely all the mandarins know exactly who he is—one member of the professoriate who needs no introduction.

For example, in his repurposed and remixed op-ed/blog “Copyright Lobbying Behind Closed Doors” he sounds like he’s wagging his finger: “As thousands of individual Canadians speak out against [Canadian copyright reform legislation Bill] C-61 this summer, certain groups have obtained special access to Industry Minister Jim Prentice and his political team to make their case.” “Special access.” Whatever could that mean?

And then again Geist admonishes us all about one of his favorite bogeymen, the Anticounterfeiting Trade Agreement (ACTA): “The time has come for Canada to stand up and say that this [the ACTA negotiations] is wrong and that it will not continue with the process until it meets the appropriate standards of transparency.”

Good thing for us consumers, Canada may not be sufficiently transparent for Geist, but there is a Canadian equivalent to what the US calls the Freedom of Information Act—the Access to Information law. It was an “ATIP” request that produced an interesting document that appears to be a draft of a memorandum to be sent to the Canadian Minister of Industry in order to prepare the Minister for a meeting arranged for the Minister by someone at Industry Canada, a meeting with—Geist.

“To assist you, we have attached talking points (see Annex A) and Dr. Geist’s curriculum vitae (see Annex B).” A helpful handwritten note to Annex B says—“see if there is a shorter version.” Those of you who have seen the voluminous CV that Geist posted to his own website will, no doubt, sympathize. A good mandarin would not want to overwhelm their boss with a firehose of that volume of information. Hopefully the CV was edited down to the customary page or two.

There is also a helpful summary of the pending copyright reform bill, which judging by the date was what was to become the ill-fated Bill C-61. The editor has struck out a description of the difference between C-61’s notice and notice and notice and notice and notice and…notice provisions and the U.S. version of “notice and takedown” (equally toothless in the eyes of some critics). The editor seems to want to make it clear to the Minister that Geist will likely support the “sensible derivation” from the U.S. practice.

Now from whose deft hand flowed these helpful handwritten comments? The names on the memo are Boothe, Bincoletto and Dicerni. I’m not quite sure at this point exactly what role these names play in the dramatis personae.

But we can adduce certain assumptions from the form of the memo. The drafter clearly knows the man who needs no introduction. And given Geist’s media heft, wouldn’t the Minister also already know—or at least know of–Geist? The man who needs no introduction? It almost seems that the bureaucrats are trying to be helpful, trying to make sure that the meeting between their friend, perhaps their champion, but by the looks of things their consultant, goes as well as possible. And they want to alert the Minister as to Geist’s views. Why?

Given the deft editorial hand of the grand Pooh-Bah, I can’t wait to see the talking points. But alas—redacted. Every single one. Words forever banished to a cramped file in a dank basement in a gloomy government building. Words never to feel the cleansing light of day, never to revel in that freeing colonic joy of sunlight. Denied eternally the chance to join the dance of all the other free information in the transparent society.

Not only are the words redacted, but the very meeting is shrouded in mystery. The document produced under ATIP appears to have been once classified as—SECRET.

SECRET. One would think the very word would cut Geist to the core, what with him being such a zealous transparency advocate. Yet it appears that all involved intended to keep secret not only the preparation for the meeting, but the meeting itself were it to have occurred. I’ve certainly found no evidence that Geist disclosed it. To the contrary, it seems to have occurred at the very time he was pounding away about transparency, etc., so one would have expected him to reject such terms—assuming he knew that he was trafficking in classified information. And then, of course, there’s the issue of his own security clearance.

Now, why would a draft preparatory memorandum regarding a proposed meeting between Geist and the Minister of Industry be so important as to have the substance of the proposed conversation hidden from the public. Much less—classified.


“As thousands of individual Canadians speak out against C-61 this summer, certain groups have obtained special access to Industry Minister Jim Prentice and his political team to make their case.”

Yes. It would appear that certain groups may have got “special access” courtesy of the bureaucracy. Isn’t that special?

If you think we are worked by strings,
Like a Japanese marionette,
You don’t understand these things:
It is simply Court etiquette.

If You Want to Know Who We Are
from The Mikado
By William Schwenck Gilbert and Arthur Sullivan
Copyright 1885

Stay tuned.

See also: A handy chart of Lawbytes government contracts

See also: A handy chart of Geist operations

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist

Calling Cabal Members

February 17, 2010 2 comments

Please respond if you are a member of Professor Pamela Samuelson’s copyright cabal, we’re trying to get invited to the next meeting.

Let’s Do the Time Warp Again: Cheap Stimulus

February 15, 2010 3 comments

I was astonished that the financial crisis in Greece got at best lip service on the “Sunday shows” in the US. The complexity of the negative effect on Eurozone economies of Greece’s 125% plus debt to GDP ratios is alarming in this, the sternest test of the Euro and the vitality and wisdom of maintaining a financial union absent a political union. The EU, unlike the US, does not have the American system of gigantic automatic federal transfer payments enforced on EU taxpayers that shifts funds at the federal level as a matter of course. The International Monetary Fund essentially provides that kind of relief (although that’s a gross oversimplification).

While this may change, recent statements by France and Germany, both of which are now facing a political choice for decisions made over a decade ago to give up their respective historical currencies. The fact that Gordon Brown looks like a genius on this issue (given that Britain didn’t join the Eurozone–another gross oversimplification, I know) tells you how dire the situation really is.

The situation in Greece may be isolated, but it may be the first of a few dominoes to fall. A year ago we started hearing about “short term stimulus” and how the withdrawal from “short term stimulus” would have to be “managed” (see “Quantitative Easing Explained“) in the “middle term”. Many think we are now in the middle term, and politicians are looking for cheaper ways to accomplish economic stimulus with a frightened eye on 70s level inflation (which some of us think is all but inevitible).

Here’s one idea for cheap stimulus: Enforce the copyright laws. When you hear the infringement issue discussed (such as in the Tenenbaum case and Thomas cases), it is as though the pro-file bartering side arrived through a time warp and it is now 1999, the dot com boom bubble hasn’t burst, the creative community had not fallen apart and what’s a little free music “shared” among friends.

Good stewards like Rick Carnes have tried for years to raise the red flag, warning that unbridled file bartering is not a business, and that the core creators in music, the professional songwriter, will not be able to sustain themselves economically. Not only has Rick been mocked and attacked by the anonymous mob (“for none of us are as cruel as all of us”), he’s been largely ignored by majorities of lawmakers (with some notable and commendable exceptions).

So rather than doing the time warp again, read the FCC filing from a few weeks ago by the entertainment industry members of the AFLCIO: The Directors Guild of America, the International Alliance of Theatrical and Stage Employees, the Screen Actors Guild and the American Federation of Television and Radio Artists. Predominately working people, not the “rich rock stars”.

“Internet theft threatens grave harm to the output of our nation’s creative industries, and to the artists and craftspeople who make up the membership of [these AFLCIO member unions]….[These AFLCIO member unions] represent over 300,000 workers who create a multitude of diverse films, television programs, and sound recordings that are sought-after by consumers around the world. Protection of their lawful rights to earn a living from the sale and distribution of that content should be one of the principal goals of [government].”

For protection of the legal rights of citizens really is the primary function of government, isn’t it? Particularly when those rights have been recognized as human rights and protected by international human rights treaties?

The unions emphasize the importance of artist rights as protected human rights:

AFTRA, DGA, IATSE and SAG collectively represent artists and craftspeople who create the movies, television programs, sound recordings and other forms of entertainment that people around the world love and demand. Together, [these AFLCIO member unions] represent over 300,000 individual workers who depend upon the enforcement of this country’s copyright laws – and the protection that affords against theft of their creative output – to earn their living. At stake are not just our members’ jobs and well-being, but also the well-being of their families, and the hundreds of thousands of ancillary jobs in communities across the country where they live and work. The revenue that their work brings to this country from around the world is critical not just to these workers and this industry but to our national economy as a whole. That is why the protection of these creative works must be a fundamental consideration in the Commission’s deliberations in this proceeding.To characterize our members’ contribution in terms of dollars and cents or as mere “intellectual property” fails to capture what makes entertainment workers unique….”

It also fails to capture the protections to the human rights of artists required of UN member states by the various human rights treaties.

(See, for example, article 27, paragraph 2, of the Universal Declaration of Human Rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948; article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952.)

So whether you are Judge Denny Chin ruling in Google Books, Judge Michael Davis ruling in the Minnesota file barter case, or just an anonymous member of the mob, you would do well to take into account the obligations of the United States (or your home country) to protect artists that were undertaken in the international documents.

And don’t pretend that it’s 1999, because it really isn’t.

Politicians who are looking for “cheap stimulus” could start with coming to the aid of the professional creative community that has been in its own depression since way before the current crisis. Despite the popular mantra of “failed business models” and “it’s the industry’s fault” and “What do we want? FREE STUFF! When do we want it? NOW!”–there is still a fundamental and simple truth.

Markets operate on rules. If there are no enforceable property rights, there will be no market. Without a market there can be no business model. Property rights online have been allowed to decline almost to the point of extinction, yet everywhere that rights are recognized (largely voluntarily by responsible folk such as Apple, Microsoft and Amazon), wealth is created despite the greatest failure of law enforcement I can recall. Imagine what would happen if government actually did their job.

This is cheap stimulus–the government already pays for the Assistant U.S. Attorneys and the prosecutorial apparatus. All that would be needed would be for the government to let them do their job. They do it for the trial lawyers, how about for the creators?

Pork, pork everywhere but not an ounce for us.

This will not be forgotten. Why not have the memory be a pleasant one?

Let’s not do the time warp again.

Welcome to the blog roll: Explore Music

February 15, 2010 Comments off

I have to recommend a great site hosted by Alan Cross, who is, as we say in my business, like a guy. A solid records man.

Explore Music should be on your regular reading list and I hope you check it out.

Why we love Paul Williams

February 14, 2010 Comments off

An excellent post on Huffing & Puffington by Paul Williams, ASCAP president and gifted songwriter. Here’s a key part:

“A growing number of creative people — those talking from experience as songwriters or performing artists — are speaking up. They’re sharing legitimate perspectives on why taking content and ignoring copyright hurts those creating the music more than anyone else.

The list of these talented, respected and often critically-admired individuals constantly grows. Check out the thoughts of folks like Billy Bragg, Prince, Lily Allen, Bono or Krist Novoselic. Reach back to Metallica’s stance at the dawn of Napster. (And it’s not just songwriters or performing artists talking; digital pioneer, Jaron Lanier, makes many similar points in his new book, You Are Not a Gadget).”

A long time ago, when I lived in Frank Lucas’s New York (see Ridley Scott’s American Gangster), I got mugged one night by a junkie. During the attempted mugging I thought to myself that New York was in a nose dive of permanent decline and that there was no pulling out. They may as well just push it into the sea. Even so, there were sparks of people fighting back–which is why it was an attempted mugging–and looked to their civic leaders for guidance. None came, and it was that supreme disconnect between the street and City Hall that I think I was responding to. That all changed a few years later, and looking back I realized that I was wrong to lose hope that the situation would ever turn around.

Having survived Frank Lucas’s New York, I think I’m better prepared to survive Eric Schmidt’s Internet. One day, decent people will rise up and this blight will become “youthful indiscretion”, something people did in college, like wide ties and platform shoes. They’ll all deny actually downloading, just streamed did they, like they didn’t inhale.

The exact path is a bit fuzzy, but what I do know is that we need to all lead each other out of the problem. Trust me–the government won’t do it until we do. Until this behavior becomes a confirmation question, it will not have risen to a level of appropriate seriousness. We will continue to be told “Don’t Be Moral“, nothing to see here, move along.

As long as the government allows Google to print money in the public markets to fund litigation over its massive infringements, artist’s can’t fight Google’s money with money–not even other countries can win that battle–so we will have to do it by other means. And that doesn’t even count Megavideo, Rapidshare and the other Children of the Lessig God.

I commend Paul Williams for taking a leadership role in speaking out on these problems.

See also: Why We Love Lily Allen, Bono and Krist Novoselec

See also: An Inconvenient Truth: Songwriters Guild President Rick Carnes talks about the effect of piracy on American songwriters

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