Organized labor released a public statement about the Leahy/Hatch bill and the shrill opposition to it from the Google amen chorus:
“We respect the rights of business and interest groups to raise thoughtful questions for open discussion and debate, but we must speak up when such groups organize campaigns dedicated to paralyzing the legislative process with half-truths and absurd misrepresentations of civic rights”
So attention, artists: If you suddenly get a call from one of your representatives asking for you to oppose this legislation, ask them to explain how the bill cuts off advertising sales on pirate websites. And whether they think this loss of advertising revenue might–just might–having something to do with Google’s staunch opposition.
Interesting coincidence of this EFF call to action to oppose the Combating Online Infringement and Counterfeits Act and Geist’s apparent regurgitation of the “open letter” in the Toronto Star.
Notice that the EFF did Geist one better–while Geist at least mentioned the title of the bill (although he never once told readers that the purpose of the bill was to save creator jobs in line with the goals of the Obama Administration), the EFF never even mentions the title of the bill in their call to action–merely it’s acronymn. Nor did they mention that Senator Patrick Leahy, a co-author, is probably the leading civil libertarian in the Senate. Actually–that’s Chairman Leahy, sorry.
One good thing: At least this time Geist didn’t try to get non-citizens to sign up to a form letter to be sent to another jurisdiction despite that pesky nation-state business.
Compare the two and see if you can find anything I missed on the Geist checklist from EFF:
1. Never mention theft–CHECK
2. Protecting creator jobs–ALL creator jobs, not just Americans–is political censorship–CHECK
3. Danger, danger, danger, fear, obfuscation, circle the wagons–CHECK
4. Fighting online crime is a US government plot to censor the people of the world–CHECK
5. Scared that domain name list blocking might actually succeed–CHECK
6. Ignores due process oversight of courts–CHECK
7. Never mention the bill is designed to stop criminals for which ICE gets warrants–CHECK
8. Never mention that the Combating Online Infringement and Counterfeits Act was about combating online infringement and counterfeits–CHECK
9. Never mention that likely names for the international list may include Google Adsense customers–CHECK
10. It’s all so urgent my brain may explode! CHECK!!
So…we must ask the musical question–who’s zooming who?
From: Peter Eckersley [EFF]
Date: September 27, 2010 5:15:22 PM MDT
Subject: [URGENT] EFF needs your help to stop the Senate’s copyright
Dear interesting people,
As you may or may not be aware, there is an extremely bad Internet censorship bill that is going to be passed by the Senate Judiciary Committee this Wednesday. Senators are claiming that they haven’t heard any opposition to this “COICA” bill, and it is being sponsored by 14 of the 19 committee members. We need to stop it, and we need your help.
What EFF needs right now is sign-ons to an open letter, from the engineers who helped build the Internet in the first place. The text of our letter is below. If you agree with it and would like to sign, please send me an email [DELETED], with your name and a one-line summary of what part of the Internet you helped to design, implement, or debug.
This is URGENT. I need your sign-ons by 4:00pm, US Eastern time (1pm Pacific), tomorrow. Unfortunately, the civil liberties community has been ambushed by this bill.
Open letter from Internet engineers to members of the Senate Judiciary Committee:
We, the undersigned, have played various parts in building a network called the Internet. We wrote and debugged the software; we defined the standards and protocols that talk over that network. Many of us invented parts of it. We’re just a little proud of the social and
economic benefits that our project, the Internet, has brought with it.
We are writing to oppose the Committee’s proposed new Internet censorship and copyright bill. If enacted, this legislation will risk fragmenting the Internet’s global domain name system (DNS), create an environment of tremendous fear and uncertainty for technological innovation, and seriously harm the credibility of the United States in its role as a steward of key Internet infrastructure. In exchange for this, the bill will introduce censorship that will simultaneously be
circumvented by deliberate infringers while hampering innocent parties’ ability to communicate.
All censorship schemes impact speech beyond the category they were intended to restrict, but this bill will be particularly egregious in that regard because it causes entire domains to vanish from the Web, not just infringing pages or files. Worse, an incredible range of useful, law-abiding sites can be blacklisted under this bill. These problems will be enough to ensure that alternative name-lookup infrastructures will come into widespread use, outside the control of US service providers but asily used by American citizens.
Errors and divergences will appear between these new services and the current global DNS, and contradictory addresses will confuse browsers and frustrate the people using them. These problems will be widespread and will affect sites other than those blacklisted by the American government.
The US government has regularly claimed that it supports a free and open Internet, both domestically and abroad. We can’t have a free and open Internet without a global domain name system that sits above the political concerns and objectives of any one government or industry.
To date, the leading role the US has played in this infrastructure has been fairly uncontroversial because America is seen as a trustworthy arbiter and a neutral bastion of free expression. If the US suddenly begins to use its central position in the DNS for censorship that advances its political and economic agenda, the consequences will be far-reaching and destructive.
Senators, we believe the Internet is too important and too valuable to be endangered in this way, and implore you to put this bill aside.
Copyright, thy name is Satan!
[Actually, the letter didn’t have that last bit, I was just checking to see if you got to the end.]
(For those who do not recognize the name, Michael Geist is aka “he who shall not be named,” according to a prominent Canadian artist), or alternatively “the wonderful Michael Geist” according to Lester Lawrence “Ace” Lessig III, author of “The Starving Artist Canard” among other works. Mr. Wonderful is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and the paid consultant to Industry Canada. SG-CIPPIC‘s external advisory board includes Lessig the American, the American EFF legal director, the American director of the American EPIC, and the American Pamela Samuelson, who is also a board member of the American EPIC and the American EFF—in short, 100% Yanks. So this Canadian affiliate of the Samuelson-Glushko system is to IP in Canada kind of what Alcoa of Canada is to Canadian industry.)
Andrew Orlowski nails it on the continuing saga of the horrendous Google Books metadata in his piece “Google crowdsources card index for ‘humanity’s last library’“.
The issue is this: Serious scholars have found extraordinary errors in the Google Books metadata, the equivalent of the card catalog in a library. (Remember those?) Which means if you’re a digital native high school student and all you’re doing is having a quick search for a cut and paste job to complete “your” term paper remix, you don’t care much about the quality of the metadata because you don’t know Madame Bovary from The Best Little Whorehouse in Texas. You think Mame is the prequel to Texas Chainsaw Massacre. You don’t know The Hotel New Hampshire from Hotel California.
But scholars do, and they are truly the last repository of the world’s culture, they are supposed to know what the world’s culture was remixed from. So they care about getting it right as opposed to a bunch of Weejun sniffers who just want to get it scanned.
You know who else cares about getting it right? Authors who are supposed to get paid by the sainted Google Books Registry.
So here’s the other aspect of this: If Google screws up the metadata badly enough, they won’t have to pay anyone.
And how does Google propose to fix the problem: Crowd sourcing.
As Andrew Orlowski says in this must-read article, for none of us are as dumb as all of us.
The Obama Administration has done a remarkably effective job at finding clever ways to attack online piracy as evidenced by raids earlier this year that sent torrent freaks running from a federal manhunt and found their domain names seized–but more importantly froze their transactional accounts and advertising revenue accounts.
Meaning, the government can use an off the shelf seizure order (about which there is nothing new) to shut down a streaming site operating in the jurisdiction of ICE. Senators Leahy and Hatch have introduced new legislation, the Combating Online Infringement and Counterfeits Act, that would bring all this authority to bear in one clearly articulated statute designed to take the fight directly to the pirates and those who succor them.
But more importantly in my view, no more Mastercard and Visa to sell “subscriptions”.
And most importantly–no more Google Adsense dollars for pirates.
If you’re not aware of how much of a role Google plays in the piracy game, read the CNET coverage “Indie filmmakers: Piracy and Google Threaten Us“, the NPR coverage (“Feeding Pirates: When Legit Companies Advertise on Shady Sites“), the Los Angeles Times coverage “Independent Filmmakers Feel Squeeze of Piracy“, trade coverage “Google Netflix and Other Pirates“, or the blog of independent film maker Ellen Seidler, Pop Up Pirates, or just watch Seidler’s instructional video. Google is extraordinarily uncooperative with film makers trying to stop illegal traffic to their websites
As Peter Sunde of the Pirate Bay put it so succinctly, there is no difference between the Pirate Bay and Google. That is exactly the point–although not the point he was trying to make, but an exact statement of the problem, nevertheless. (Google is not alone in this, but because of their dominant position in search that they try to maintain at all costs, they may as well be.)
Therefore, Google is likely in a bit of a spot in trying to stop this legislation, the first bill in a long time that actually takes money away from Google and puts Google in a very awkward defensive position of finally acknowledging its unsavory and possibly criminal role in driving traffic to websites that host illegal content. And some of these websites are also Google Adsense “partners”. (A little tip? Dump that “partner” reference, kids.)
So what does Google do? They will have great difficulty opposing the legislation, particularly since it will involve telling Vice President Biden what the DMCA says (formerly Senator Joseph Biden, Chair of the Senate Judiciary Committee, which drafted the DMCA–you remember him, right?). That would be the same Vice President Biden who said “Piracy is theft. Clean and simple. It’s smash and grab. It ain’t no different than smashing a window at Tiffany’s and grabbing stuff.”
Maybe go to the amen corner? Ah, yes, there are some Googlers there now, vocalizing and warming up with their fingers in their ears singing “la, la, la, la, la, la, la”.
And so comes Michael Geist riding his white horse named Jingo. I am increasingly convinced that Geist is Google’s Man in Canada, for reasons that are circumstantial, I admit, but are very much so.
(For those who do not recognize the name, Michael Geist is aka “he who shall not be named,” according to a prominent Canadian artist), or alternatively “the wonderful Michael Geist” according to Lester Lawrence “Ace” Lessig III, author of “The Starving Artist Canard” among other works. Mr. Wonderful is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and the paid consultant to Industry Canada. SG–CIPPIC‘s external advisory board includes Lessig the American, the American EFF legal director, the American director of the American EPIC, and the American Pamela Samuelson, who is also a board member of the American EPIC and the American EFF—in short, 100% Yanks. So this Canadian affiliate of the Samuelson-Glushko system is to IP in Canada kind of what Alcoa of Canada is to Canadian industry.)
Echoing the cant of the Electronic Frontier Foundation issued just last week, Geist launches an attack in the poor old Toronto Star, the worse for associating itself with Canada’s Million Dollar Man.
Geist’s attack on the Obama Administration gives the spur to old Jingo to such a degree that he may get a call from PETA. Yet the themes are classic in the literature of the pirate apologencia–“Only we can protect you from a [government/industry/artist] gone mad who is trying to break the Internet and [invade your privacy/chill your speech/criminalize our kids]”
In Geist’s case, being Canadian and all, old Jingo gives his own little snort to the cant: There are YANKS UNDER THE BED!! And so we are treated to this phrase from Geist, which has some very interesting implications:
“Effective regulatory measures have often proven elusive, however, since, unlike the Internet, national laws typically end at the border.”
National laws typically end at the border. End at the border. Sort of like the proposed Canadian Copyright Modernization Act, maybe? But more about this another time.
The piece is entitled “Geist: U.S. uses domain names as new way to regulate the Net” and what is funny about it is that it does not say one word about the reason the legislation exists–to give law enforcement the tools to carry out the Obama Administration’s commitment to stop piracy and those who support it financially. In fact, you could read the entire Geist piece and never know that the Combating Online Infringement and Counterfeits Act was about combating online infringement and counterfeits, aside from the mention of the bill’s title.
Geist says that the “domain name block list – already being dubbed the Great Firewall of America – would be created through a censorship court order obtained by the U.S. Attorney General.”
A “censorship court order”? That’s kind of a heaping pile, even for old Jingo. First of all, if there’s a court order, then the thief that the DOJ is acting against would have all the process rights accorded to thieves, which are many. Plus, the probable cause for the order has to be enough to satisfy a judge, and judges will take into account any first amendment issues.
But what is screamingly absent from Geist’s piece is the obvious–the legislation is designed to bleed these thieves financially and the companies like Google that support them (such as his buddies at IsoHunt).
Will he say anything about the evilness of providing financial sustenance to thieves?
See also: A handy chart of government contracts with Lawbytes, Inc. f/s/o Michael Geist
See also: The Professor Has No Clothes
See also internal document re Industry Canada and CCER letter : A Dedicated Group of Likeminded People
See also: Artist rights are human rights
New Music 9-24-10: Healthy Minds Collapse, The Matches, Alexander Fog, She Screams Remedy, Napoleon IIIrd
Helienne Lindvall has another brilliant column in The Guardian, “The Winners and Losers of Social Networking Promotion” in which she has a frank discussion of the problems that artists, and particularly songwriters, have with the demands of marketers and promotion folk to get creators to blog, tweet, and generally engage in the much vaunted “conversation” directly with their fans.
This is not for everyone–either artist or fan. When we first started planning for an artist-driven future (see my article from 2000, “Why Free Agency Matters: The Coming Changes in Record Company-Artist Relations“) there are some artists who embrace the direct to fan experience and some who do not. One wag said that “There’s a reason they call these people artists and not distributors. They’d rather sit at home in their living room with a guitar than with a palette of CDs or a computer.”
As we have said in these pages many times, it is concerning that finding out what’s “popular” or “trending” is a substitute for A&R, sending artists to corporations for sponsorships is a substitute for label or publisher investment, or valuing music based on a share of advertising revenues is a substitute for licensing at the intrinsic value of the music as determined by the creator. This is the ultimate corporatizing of music.
(Now before the peanut gallery pipes up that record companies funding the production and marketing of music and one-off corporate sponsors are the same thing, realize that one invests (or should invest) in the artist as they come, and the other invests in an artist if they do something the corporate sponsor finds acceptable. With some notable exceptions that prove the rule, corporate sponsors usually don’t invest in the long-term careers of artists, and online advertisers definitely do not.)
Helienne’s piece should be required reading for every artist and marketer. It’s too easy to say that a record failed because the artist didn’t blog. It’s nice to have the artist participate in “the conversation” (we think, although I’ve yet to see any data that gives anything more than a hunch about the consistent long-term positive effect on record, ticket or merch sales solely from free social media activities), but if the artist just isn’t cut out for blogging, then it is the marketer’s job to find another way to introduce the artist to a new audience.
I know this will come as a shock, but it has been done before. If the label wanted to sign a blogger, they should have done that.
On the other hand, artists have to understand that they may–may–be limiting themselves by not participating in social media.
But then again, I have yet to hear a fan say that they love a band because they tweet so well.
Is “I dabbled in witchcraft, but I didn’t join a coven” the new “But I didn’t inhale”? There is no doubt–we are deep in the silly season of American politics.
If you are an artist standing around watching your life’s work being ripped off in the name of “consumer rights” by some of the largest commercial actors in the world you may think that there are a lot more important things to be concerned with than these. Thankfully, some legislators think so, too, as evidenced by the Combating Online Infringement and Counterfeits Act in the US Congress.
Many in the anti-copyright movement would have us believe that there is a “market failure” in the distribution of online content justifying an “intervention” by the government to “legalize” file barter in its many forms and establish a compulsory license for all digital works. Meaning that these academics, chiefly the Berkman Center’s Terry Fisher and Lawrence Lessig, would have the government set the price for all works which would be paid by someone other than the consumer who would essentially get it all for free. All due to the “market failure.”
The Combating Online Infringement and Counterfeits Act squarely rejects this idea.
There can be no market failure without a market, and there can be no market without enforceable property rights. The most fundamental property right to be enforced requires the government to establish the boundaries beyond which society will not permit harm to occur.
These are called crimes and they have been with us for a very, very long time. It should come as no surprise that world governments are not prepared to allow the clock to be rolled back to a state of nature despite the efforts of “digital natives” as they are called at the Berkman Center.
The Combating Online Infringement and Counterfeits Act will facilitate the development of a broader market by enforcing existing laws (with respect for due process), not waiving a magic wand of legalizing file sharing.
It is worth noting that everywhere online that private property rights have been respected, people have made good money and the reason that they have is because consumers voted with their dollars that this was good for them because they bought music or films or books. Billions of retail transactions with Apple, Amazon, Netflix, for example. The companies that settled for a share of advertising revenue are barely hanging on or have shut down–or they are pirates who profit from royalty free stolen goods. (On the eve of Google Music, this should be food for thought.)
Except for the pirates who sell advertising served by Google, among others. So you have a publicly traded US company facilitating international piracy on a grand scale. It should come as no surprise that even in the silly season of witches and covens, this evil will not stand.
It is also important to note that the Combating Online Infringement and Counterfeits Act is not targeted at users—it is targeted at commercial enterprises that prey on users and the advertisers who probably have no idea that their brands are being associated with theft. As filmmaker Ellen Seidler found in her efforts to stop infringement, companies such as Deutche Bank and Netflix advertise on pirate sites through Google’s Adsense product. This bill seeks to put an end to those practices among other things.
So let’s not hear any of the Lessig pabulum about “we’re criminalizing our kids” along with much wringing of hands. Megaupload is not run by “kids” and everyone knows it. Megaupload and Megavideo are routinely in the top 100 websites in the world on Alexa. They know exactly what they’re doing.
The Combating Online Infringement and Counterfeits Act codifies the practices that ICE has used in recent months to seize in the name of the US government the domains of pirates, seize their advertising accounts (which presumably includes Google’s Adsense accounts) as well as any credit card fulfillment or PayPal accounts.
In addition, for pirates who are not in the jurisdiction of the United States, the law allows the government to put their name on a list that would afford US companies a safe harbor for refusing to deal with the pirates on a voluntary basis.
Of course, you would have to wonder what kind of gibberish will spew from the Google amen chorus when Google refuses to terminate the Adsense accounts of pirates who are on that list. Striking a blow for innovation, commercial speech freedoms, fair use and blind eyes no doubt.
Given that Google and its online pirate commercial partners have made a science out of creating conditions of despair among artists in hopes, no doubt, that these artists will simply stop struggling and capitulate.
So Senators Leahy and Hatch are to be commended. Given that both Senators were around for the drafting and passing of the DMCA, it may well be that this legislation is the first salvo toward making the much needed fixes given the extraordinarily silly interpretations of their work by Google and its fellow travelers.
It is unlikely that any Member of Congress who voted for the DMCA would have thought that it would end up being the “catch me if you can” result that it is today. If you asked Patrick Leahy, Diane Feinstein, Bill Frist, Fred Thompson, Howard Berman, Howard Coble—really any Member—whether they thought that it was good American jurisprudence for a company to receive over 1 million DMCA notices in a year, to force independent artists and labels to send thousands of notices themselves at tremendous cost, to allow their law to become an alibi for what would otherwise be criminal copyright infringement, what do you think they would say?
Would they say “Absolutely, make it 2 million!” Or would they say something has gone terribly, terribly wrong.
Would they say their intention was to make all artists spend every waking moment chasing down infringers until the artists went broke? Or would they say that the DMCA was intended to allow some latitude to reasonably people acting reasonably?
And would they also say that they intended for Google to be able to sell advertising for pirate websites to give the criminals sustenance until an artist told them not to?
And by the way—this is not just a protection for American artists, it is a protection for all artists. ICE doesn’t ask where you come from, they just protect your works. Unlike laws under development in Canada and elsewhere, this statute adds protections for international artists, it doesn’t take away protections.
The Combating Online Infringement and Counterfeits Act is a good first step toward protecting artists around the world by fixing a process that has gone horribly, horribly wrong.
Canadian artist Maia Davis summed it up in a recent op-ed: “[A]rtists will reward all of us if given the opportunity. At the very least, they deserve fair treatment under the law.”
And at the very least, US public companies should not be able to profit from selling advertising for pirates and splitting the booty.