Part 2 of Brad Holland’s excellent overview of the orphan works scam
Artists have taken note of the recent legislative activity in the European Union regarding “orphan works”. The European Union defines these works as “works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other rightholders are not known or cannot be located or contacted to obtain copyright permissions. Orphan works are part of the collections held by European libraries that might remain untouched without common rules to make their digitisation and online display legally possible.”
Of course, these libraries–the real ones, like the British Museum, not the Google Books Project–have a legitimate interest in digitizing their holdings and making them available online. However, just as we saw with the Google Books project, Big Tech uses orphan works as a dodge (note that the lobbyist for the “Library Copyright Alliance” also is the lobbyist for the Computer & Communication Industry Association and the…
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excellent source for understanding recent past of orphan works laws by Brad Holland, a great artist and artist advocate. You can thank Brad Holland and Cynthia Turner for stopping orphan works legislation in the US.
We at the Trichordist are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session. We take a dim view of the “orphan works” theory–it seems to be yet another way of undermining copyright through a back-door safe harbor. If the last effort at “orphan works” legislation was any guide, it will another excuse for copyright infringement–if the infringer doesn’t quite qualify for a “fair use” defense, then they will say that their use of the infringed work is an “orphan” because they tried really, really hard to find the copyright owner, but couldn’t quite seem to find them. We think that “orphan works” puts the fox squarely in the henhouse, and is another clear example of the law creating another moral hazard to the detriment of artists.
We have a lot of readers in the music business, and people in the music…
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The Piracy-Pandora Connection: Can the Super Bowl, Oscars and Grammys Move the Needle on Brand Supported Piracy?
The Seattle Weekly’s Chris Kornelis has a thoughtful article today asking why artists came together to oppose the so-called Internet Radio Fairness Act but haven’t consistently been a united front against the unprecedented levels of online theft we’re all too familiar with (read “It’s Time for Artists to Fight Piracy as Vigorously as They’ve Challenged Pandora“). This is actually a very insightful point because the alliterative piracy and Pandora are more connected than one might think.
Catching Up to the Google Propaganda Machine
Kornelis mentions David Lowery’s “Letter to Emily” which was almost universally received as a balanced and courteous discussion of the underpinnings of piracy as a culture and pointed out how successfully Big Tech has attempted to commoditize music and movies in order to sell hardware and Internet access. Nowhere is this more prevalent than Google, which has built an entire litigation and lobbying strategy around crushing artists. For example, this week Google announced it is receiving 3 million DMCA takedown notices a week for Google search alone–and that somehow that means that Google’s rights are being infringed. What that should say to people is that if there are 3 million notices sent by copyright owners who can afford to track Google 24/7, there are an untold number of notices that could be sent by copyright owners who cannot. Aside from the fact that Google has put arbitrary caps on the number of takedown notices that they will accept and those caps max out every week.
Those “have not” copyright owners are usually called independent artists.
And that doesn’t even count YouTube.
After the eye opening Google Shill List revealed the extent of Google’s financing of tax exempt front groups like the Electronic Frontier Foundation and Public Knowledge, trade associations and their attendant consultants like the CCIA, and Google’s efforts to disallow class certification for authors in the Google Books case so that authors could enjoy the freedom of suing Google individually on a work by work basis–you begin to get the idea of what the artists are up against.
And that’s just Google’s propaganda machine.
Why does Google spend what must be well over $1,000,000,000 by now on lobbying and litigation? Because it profits them to do so. All those DMCA notices? That’s translates into traffic Google sends to pirate sites. And we are told that it’s the artist’s fault by the former Grokster-Limewire and God knows who else lawyer Google hired from the EFF after a federal judge called him out for destroying evidence to help a massive infringer? This guy has the brass to tell us that even though the notices are 97% accurate, it’s still our fault for fighting back?
Well screw that, I say.
The Piracy-Pandora Connection
The reason why it’s good business for Google to profit from piracy is because there’s a lot of profit in piracy. Here’s how it works–Google sets up the pirate site with an Adsense account (just like they did for Megavideo) and that allows the pirate to sell its inventory to Google. Adsense accounts may have once been vetted by humans, but even then the pirate could change the URL after they got the approval. So Dimitri’s Kittens and Sunshine became a pirate site after a one-time approval.
Now that Google is working on the bottom half of the Alexa chart, they don’t make enough money from this large number of small inventory sites to justify human review. So they just set them up automatically.
(Google isn’t the only ad network or ad exchange that does this, but they are the only one that spends hundreds of millions on litigation and lobbying to do it and they have a global monopoly on their particular corner of evil.)
And so is born the unholy alliance–Pandora and other legitimate services have to compete for the same ad dollars with pirate sites that have ads by Google and are served traffic by Google and offer the same content that the legitimate sites have. So if you are Spotify or Pandora and you are trying to make a living from advertising, your real competition is not each other but is Google’s ad scheme–with pirate sites that pay no royalties.
If Google stopped serving advertising to the pirate sites, then those ad dollars would have to go somewhere. But the glut of advertising drives down the pricing that devalues music and also makes it hard for legitimate sites to compete for the same advertisers who show up on pirate sites.
The Super Award Show Season Opportunity
Kornelis also put his finger on another important issue. It doesn’t hurt to have a rallying point that is both a positive and a negative–we love Pandora, but we don’t like their bill. We want to help them to be successful, but we won’t take a cramdown.
That worked out well for artists and I think that the IRFA messaging was excellent. (Sorry, Tim.)
The ad-supported piracy issue is a little more complex, however, because so far the vast majority of people in the chain deny it’s happening. But unfortunately for them, we have pictures. USC-Annenberg is doing a corporate responsibility study. Ben Edelman at Harvard has done a vast amount of work on this issue. The unholy alliance is real and it is happening every second of every day.
I have frankly given up on getting ad agencies to take responsibility for their actions. I can understand why they don’t want to voluntarily give up rebates on ad commissions they take by steering their clients to ad inventory that the clients don’t want. (My advice would be to ask themselves whether they’d rather get reamed in Ad Age or in prison on a fraud beef.)
So how can we move the needle with advertisers who want to do the right thing?
In the first quarter of 2013 we will have a number of high profile advertising opportunities that feature prized advertising opportunities for sponsors. I’m thinking of the Super Bowl, the Oscars and the Grammys, just to name three. There are more.
None of these shows exactly have a problem selling spots. So why should the NFL or the movie or music industry groups permit advertisers on their air who also sell ads on pirate sites that steal the very content that makes the shows possible?
And even if the first round of discussions is not a take it or leave it proposition, sponsors on these shows should definitely have a teachable moment. A sit down with the players and artists whose livelihoods are affected by bad choices of these companies would be entirely appropriate.
It’s About Who Shows Up
These TV ads are sold by sales teams at the networks who buy the rights. That’s done with a contract. Part of that contract should require at least a meeting with the advertising sales team and advertisers at which these issues are discussed. The networks are just as much victims of piracy as the artists are, so this should be an easy ask. Standards and practices should include no advertising on pirate sites.
The point is that you can’t trust ad networks to take care of the problem. They try to get us to “follow the money” through a labyrinth of ad exchanges, real time barter trading desks, cascades, waterfalls, and all the other obfuscation techniques that have resulted in the highly lucrative unholy alliance.
I don’t need to follow the money. I can take a screenshot–I see a Fortune 100 brand advertising on a Most Wanted List pirate. I followed the money–it comes out of the brand’s bank account and goes into the pirates bank account. How that happens–not my issue. Leave that to the guys with the badges.
And it shouldn’t stop with the award shows. It should work its way through every aspect of our business.
This is an idea that’s well worth trying.
Chris Kornelis is on to something.
The hoopla over the FTC investigation of Google frames one of the most important questions for consumers: Does Google hardwire search results?
Google’s explanation for this has gone all over the map over several years. Eric Schmidt denied that Google cooked the books in his testimony before the US Senate Antitrust Subcommittee (that the Senators did not believe); Google lawyer Jon Jacobsen denied that there is any (known) evidence to suggest bias); Marissa Mayer exclaimed that “it’s only fair!” for Google to promote their own services over others; and Google has consistently made legalistic statements that even if they do it, they have no legal obligation to assist rivals anyway, so it’s all perfectly legal.
We have said for years that it seems apparent that Google has hard wired YouTube search results above all others and extended its monopoly from search to video search by illegally subsidizing YouTube with Google’s monopoly profits from advertising–including advertising sold on pirate web sites.
Like Orwell’s Minitrue, Google would have you believe that SEARCH IS NEUTRAL, which has to go right up there with other half baked monstrations like WAR IS PEACE and especially IGNORANCE IS STRENGTH.
After a two-year investigation, the FTC has a pretty good idea of the answer and the public deserves to be told. Up or down, right or wrong, the FTC is the best bet that the American consumer has to know exactly what is going on under the hood at Google.
An uninformed consumer cannot drive competitive markets. The FTC has the power to either leave them in the dark (which is where Google likes them) or inform consumers through evidence trial and testimony under oath. Ignorance is not strength, and Google should not be allowed to make the FTC an accomplice in their deception.
It’s time to come clean. It’s time for transparency.
It’s time to bring this case to trial.
Cramdown Part 2: Thanks to State AG’s, “Looks Like Google Might Not Be Getting That Sweetheart Deal From the FTC”
According to All Things D, it “Looks Like Google Might Not Be Getting That Sweetheart Deal From the FTC” after all. That headline says it all, but the big news outlets are confirming the story from the New York Times to the Washington Post, to even the usually docile tech reporters at Politico.
After reading the stories and the tea leaves, here’s our take on the latest debacle for Google (says he smugly after a white knuckle few days).
From all accounts, FTC Chairman Jon Leibowitz is a good guy and a conscientious public servant. However–even a good guy can do stupid stuff that makes him look like a bad guy. Leibowtiz was well on his way to looking like his decision on the Google antitrust prosecution was motivated by some other force. He appeared to be giving in to something because the predicate for all his moves was to let Google off the hook on Google’s own terms. A “sweetheart deal from the FTC.”
The State Attorneys General
During the supposed negotiations between Google and Leibowitz, no one at the FTC kept the state attorneys general, particularly Texas State Attorney General Greg Abbott, in the loop. Why not?
First, “negotiation” may be an incorrect description. “Dictation” might be closer.
But the reason that neither Google nor the FTC told the states of their little “sweetheart deal” has to be that they knew what the answer would be. So here’s the ask that the FTC would have: Since if we drop our case and you keep going with yours we would look like gutless eunuchs at best and possibly actionable political cronies at worst, please drop your cases against Google if the FTC does, too.
So why wait? Because Google and Leibowitz both thought they could cram it down the throats of stalwarts like Texas Attorney General Greg Abbott.
Or–Leibowitz is really, really clever, knew he had painted himself in a corner, kept the states in the dark, and was betting on Greg Abbott to pull his chestnuts out of the fire while still looking like Leibowitz was satisfying his political masters. When the deal cratered–as it apparently has for the moment–Leibowitz could look like he tried to help Google, but it was those ornery Texans who stopped him.
That still looks like crony capitalism, but at least it would satisfy the FTC’s political masters. It also is unfortunately the beginning of the end for the agency’s reputation. But then Leibowitz has announced his attention to leave soon.
So for those of us who are pleased that another Google sweetheart deal fell apart, we have to say God bless Texas!
The European Commission
Leibowitz had a similar problem with the investigation into Google by the European Commission. I think Google’s play was to try to use their big time US political muscle to get the EU to follow the FTC. That did not work out so well. It actually hurt Leibowitz’s position with the state AGs because Leibowitz was clearly spending more time with the Europeans than he was with his own state government colleagues.
The Professional Staff at the FTC
The FTC is a proud agency and has done very good work. I believe that those who are working on this case against Google take it seriously and are in uncharted ground. These folks must find it revolting that their hard work was cheapened by the perception of a “sweetheart deal” based strictly on crony capitalism.
Hopefully, these dedicated public servants will get the pols off their backs and be allowed to bring the antitrust case against the bad guys that the FTC fought so hard to take from the Department of Justice. It does not appear at this point that the investigation is indelibly tainted–if they get back on track quickly.
And bring this case to trial.
Cramdown Part 1: Google Attemps to Use FTC “Non-Settlement” As an Antitrust Cramdown for Unrelated State Cases
This story is evolving, but Google is desperately trying to force the FTC to close–as in closed and never to return–one of the long standing investigations into Google’s more odious business practices by the end of this week.
And here’s the kicker–not with a consent decree imposing terms on the rogue company, but with a “letter” that is non-binding “letter” from Google to the FTC saying what Google thinks it could improve upon, kind of like a participation medal for showing up or an amends letter in a 12 step program. Rumors that the “letter” is actually an amends letter from the FTC to Google are considered to be marginally overrated, but cannot be ruled out completely. (Remember that Google is getting their very own FTC Commissioner, Joshua Wright, appointed very soon. Wright has agreed to recuse himself from ruling on Google cases for two years–oh, goodie. Can you say “agency capture.”)
This “thank you for playing” letter from Google is considered a controversial end to the two year investigation, but it avoids three of Google’s shared goals with the FTC: It’s nonbinding, actually rewards Google for its allegedly bad behavior, and eliminates formal public comment. In other Google words, a very Googlely end to a sad tale of anticompetitive behavior trumped up by the shadowy enemies of innovation and the Progress State. Time for a cupcake and hugs! Good boys get to drive the cars and–you know–take some “pictures”, get it?!
But not only is Google using its political muscle and crony capitalism to cram its will down the throats of the Federal Trade Commission, it is also seeking to do the same with all the state investigations currently pending to wrap up all its problems before the Inauguration and before Joshua Wright, Google’s member of the FTC starts his term.
Yes, the several state attorneys general pursuing cases, including Texas Attorney General Greg Abbott evidently received calls last night saying, “We’re from Washington, and we’re here to help.” The rumor that the Texas AG told the FTC that Texas Rangers would be happy to meet the Googlers at the Austin-Bergstrom Airport to show them the next flight out were probably slightly exaggerated. It would probably have been just the one Ranger who would have waived, “Enjoy your visit!”
It’s a great airport, they would have fun getting a plate of Salt Lick and a Shiner. I bet General Abbott could even arrange to have them take it on the plane if they didn’t finish them good eats.