Archive for May, 2013

The Smartest Guys in the Room Figured it Out Again: Google’s Undesirability Index for Brand Sponsored Piracy

May 29, 2013 Comments off

Last night in London, Google’s head of EU policy Theo Bertram participated in a debate with David Lowery and some others.  You can read MuscAlly’s live blog about it here.

More about this later, but it’s important to note that Mr. Bertram speaking for Google came up with a brilliant idea for how to “white list” bad sites for advertisers:

Bertram said that it’s theoretically possible to have a dynamic list of the 500 top piracy sites, for use by brands when stipulating where their ads should appear – or for legal purposes.

“It’s not Google’s job to go around the web to declare whether sites are legal or illegal [false premise, no one asked them to do that], but if Coca-Cola comes to us and says here’s a list of 500 dynamic sites, and we don’t want you to place ads on those… that’s a slightly different thing. It’s almost a marketing thing for the brand.” So it’s a brand deciding where their ads should run – an undesirability index, rather than an illegal index, you could say.

I guess if a brand told Google what to do if Google wanted their advertising business, Google would probably comply since over 90% of Google’s revenue comes from advertising.

Wow, why didn’t I think of that?  Let the market decide.  Eureka!

What a brilliant idea.  I think that someone should run with that one, it’s absolutely genius.

Way Past the Creepy Line: The Infringement for Profit DMCA License Meets the War on Terror

May 28, 2013 1 comment

Google Chrome Ad on Terror Video

The Daily Mail has a fascinating article today “Google Cashes in on Hate Videos: Ads for Reputable Companies Featured Alongside Terror Videos.”  And you’ll notice from the screen capture above, one of those “reputable companies” is Google itself.

Both MTP and The Trichordist as well as the USC Annenberg Innovation Lab have raised public awareness of how Google profits from piracy by serving ads for legitimate companies that are served in turn to pirate sites selling inventory.  We’ve shown how Google profits from videos on YouTube that are essentially ads for drug sales and human trafficking networks.

Google paid a $500,000,000 fine to the US Government for selling ads for illegal drug sites.

It should have become obvious that Google will sell ads for anything to anyone regardless of the purpose.

And now this.

I can’t wait to hear the excuses.

Adsense and Doubleclick are both plagued with the same thing–a vile design defect that allows Google to profit from anything.

Gives “self radicalization” a whole new meaning, don’t it just?

An Answer for Mr. DeSantis: “Registration” and the Reformalization of Copyright Under the Copyright Principles Project, Part 1

May 27, 2013 Comments off

A question came up regarding copyright registration at the May 16, 2013 House IP Subcommittee hearing featuring Professor Pamela Samuelson.  Professor Samuelson teaches at the University of California at Berkeley and also runs the Samuelson Glushko system of academic legal centers (the “Glushko” is Professor Samuelson’s husband, Dr. Robert Glushko, a Santa Clara Valley (aka “Silicon Valley”) tycoon and fellow academic). The network of the Samuelson-Glushko centers are located at schools such as Fordham, American University, Colorado University, University of Ottawa in Canada and of course the University of California at Berkeley.

I think it’s fair to say that the academics in these centers have an abiding interest in what can be called the “copyleft” side of the policy continuum.  The Samuelson Glushko centers sustain many luminaries of the copyleft such as Michael Geist and Peter Jaszi who frequently purport to speak for the “public interest”.  Somehow their interpretation of “the public interest” never seems to include the artist side–which is, after all, where copyright starts–and always seems to benefit the multinational technology companies such as Google.  This may explain why we find Professor Samuelson on the board of the Electronic Frontier Foundation, an organization that is no friend of artists and that received long term funding from Google.

The reason that Professor Samuelson was testifying before the IP Subcommittee is that she formed a discussion group called the “Copyright Principles Project” or “CPP” around the time of the failed Shawn Bentley Orphan Works Act.  As Representative Ron DeSantis (R-FL) determined by questioning Professor Samuelson at the hearing, the CPP was convened by Professor Samuelson with one principal qualification for membership:  That each was a member of Professor Samuelson’s rather exclusive “social network,” i.e., an FOP (“Friend of Pam”).

In 2010, Professor Samuelson wrote up some of the CPPs collective ideas in a “white paper” of sorts called “Copyright Principles Project: Directions for Reform.”  The white paper has a list of those “convened” and based on the testimony of attorney Baumgarten and other information, there was little broad consensus about many of the “principles” but everyone was very polite to each other (as one might expect given that no one whose livelihood was at stake seemed to be included in the FOP “social network”).  The flaws of composition and conflict of interest in CPP is discussed elsewhere on MTP.

I mention the formation of the social network in relation to the (second) failed attempt to pass an “orphan works” law in the US for a reason.  This post is limited to the “reformalization” of copyright advocated by the Copyright Principles Project and the inevitable interaction of that new registration requirement with the orphan works issue.  It is well to remember actively that the word “registration” in the white paper has a special meaning, and not the meaning that we currently attach to a copyright registration, or even the meaning attached to copyright registration under the 1909 Copyright Act.  Although the word “registration” is the same in the past and current law and the white paper, the meaning is quite different.

Professor Samuelson described it to the committee as “rethinking registration in a way that will take advantage of the opportunities of the new information technology environment.”   We’ll come back to this–for now, realize that it is the intention of the CPP to use the “new information technology environment” to give effect to this new registration requirement.  That is, to burden creators, not to help locate creators.  The witnesses were asked what had changed since their 2010 paper, and they all mentioned cloud computing and the proliferation of devices.  None of them mentioned The Death of Privacy.  The Death of Privacy should make it easier than ever to track down a creator to ask their permission to use their works.

This was never discussed.

When combined with the orphan works recommendation advocated by the CPP, the concept of registration as described in the white paper seems designed to create a new class of works available for mass exploitation: works that are not registered, even without regard to whether the author could otherwise be found.  These unregistered works may or may not be true “orphans” in the sense that the author or owner cannot be found after looking in the right place; rather, the work is simply not registered for some reason known only to the creator.

This approach changes the default from the “get a license” requirement on the user, to a new “chase a license” burden on the creator.

There was a 6th witness at the hearing–one that was not actually present, but whose presence was felt by all concerned.  David Lowery had published an op-ed at in the days prior to the hearing and it seemed that many of the Members of the IP Subcommittee had read it carefully.  Ranking Member Watt even entered it into the committee’s record.  David critiqued the white paper and specifically called out this registration proposal.

When Representative DeSantis asked Professor Samuelson a direct question regarding registration based on the Lowery piece in Politico, I regret to say that the transcript reflects that she answered a different question, leaving many with the impression that David got it wrong (emphasis mine):


There was this article, I think it was in Politico, and it was a musician, he basically said that if some of what you were advocating was adopted that an individual could post a photo online, like a family photo that wasn’t registered [as defined in the white paper] and you could have a user just take that and use it for their commercial gain.  Do you agree, is that true?


No I don’t believe that’s true at all.


Why not?


Because one of the things we made very clear was that to the extent that someone is commercializing something that someone posts online that’s actually an activity that copyright law would apply to.  I think that’s very clear from our report, especially the discussion about commercial harm.

Note that Professor Samuelson did not answer the question that was asked.  Representative DeSantis, referring to the Lowery op-ed, correctly asked if a family photo was not registered as advocated by the CPP could that photo be exploited commercially by a “user”.  (A “user” could include Google.)

Professor Samuelson’s response did not address the “registration issue” at all, merely that the commercial use of a family photo would be subject to the copyright law.    Which, of course, would always be true.  Or at least one would hope so.

David Lowery’s point was that if he failed to register a family photo under the registration regime contemplated by the CPP, his rights to stop even a commercial exploitation would be reduced under that regime.  As it is burdensome to register family photos (if that would even be permitted under the CPP regime), it is more likely that such works would be exploited.  (This relates to the CPP concepts of “commercial value” and the “commercially dead” as we will see.)

As I think can be demonstrated and that you will see in later installments of this post, David Lowery got it right.

I wish I could say that there was some special insight that Mr. Lowery brought to the issue, but frankly this registration “gotcha” that’s in the white paper has been around for quite some time, certainly since the 2008 attempt to orphan works.  It’s kind of old news, so it’s surprising that the CPP is making another attempt to push it over the wall.

It was criticized in 2008 and has been criticized by a variety of creators on at least two continents (e.g., Stop43 in the UK).  It was extensively criticized by Brad Holland of the Illustrators Partnership in his excellent article, “Trojan Horse: Orphan Works and the War on Authors“, serialized on David Lowery’s blog last year.  It was criticized at the Small Business Administration’s Roundtable on Orphan Works in 2008.  It has been criticized in the current orphan works inquiry at the U.S. Copyright Office.

And it will be criticized in this post although I claim to bring no special insight, either.  The problems with reformalization are obvious and the result is easily anticipated–it is a system seemingly designed to create orphans, not to prevent them.  And create them on a grand scale in the millions of works.

We have to assume that it was this harsh reality that Representative DeSantis wanted the IP Subcommittee to discuss with the disinfectant of sunlight.

Next in Part 2: Get a License vs. Chase a License

Music to Make You Go Home and Practice: @johnmclaughlin and @santanacarlos

May 23, 2013 Comments off

Lou Reed Exploited By American Express, AT&T, Chevorlet, Chili’s, Lysol, Pottery Barn, Vons, Domino’s Pizza, Netflix, Galaxy Nexus and Ron Jeremy!

May 23, 2013 Comments off

We are witnessing the greatest income transfer of all time…

The Trichordist

Here we go again… We can go to Google and within minutes search for an artist of stature such as Lou Reed and quickly find unlicensed and infringing internet businesses exploiting his life’s work illegally while paying the him nothing, zero, zilch, nadda, zippo.

There are many disappointing things about all of this, but the first is that when doing a simple Google search for “Lou Reed Mp3” the first five returns are for illegally operating and infringing sites.

This doesn’t count YouTube which may or may not be infringing, and may or may not actually be paying Lou from the advertising revenue (on this video, in the screen shots below for example). This is all the more troubling because we know that this can be easily filtered if there is the will to do so.

The ad networks have been highlighted in the fantastic work done by…

View original post 260 more words

Google Drugs Update: City of Orlando Police Pension Fund v. Lawrence E Page, Sergey Brin, Eric E Schmidt, L. John Doerr, John L Hennessy, Ann Mather, Paul S Otellini, K. Ram Shriram, Shirley Tilghman and Google Inc

May 21, 2013 Comments off

MTP readers will no doubt remember the “Google Drugs” case–where Google paid a fine to the US Government of $500,000,000 of the stockholders money to keep their senior executive team (at least) from being indicted for violating the Controlled Substances Act.  How did Google manage to do that?  By some pretty in depth collusion with con man David Whitaker to sell prescription drugs without a prescription to whoever wanted them.  Including kids.  Techies can relax–even Wired Magazine has called them out for these debased acts (see “Drugstore Cowboy“):

For their next ruse, the Feds asked Whitaker to advertise an even dicier site—one selling RU-486, better known as the abortion pill, which is normally taken under close supervision of a doctor. Like the earlier site, was designed to be as explicit as possible. “We understand accidents happen,” the front page copy read. “When they do we don’t ask why, we’re only here to help.” In another section, the site promised to fill prescriptions over the phone, “without the embarrassment of going to a pharmacy.”

To prove that Google’s behavior was widespread, Whitaker went through a different rep—one that the country manager of Google Mexico helped connect him with and who showed no more resistance to Whitaker’s schemes. Despite the site’s open promise to sell RU-486, it passed Google’s policy review on its first try, without any objections. Working with his rep, Whitaker spent $25,000 on ads against a series of explicit search terms: “abortion,” “abortion services,” “medical abortion,” and “RU-486.” None of the ad buys triggered any red flags from Google.

Whitaker kept designing new sites, working with different Google account reps to advertise ever sketchier online businesses. sold psychotropic drugs. “TaoTeWellness is a provider of the medications listed on this site,” the homepage read, above photos of Valium and Xanax. “There are no embarrassing doctor’s visits involved.” It was hard to be more up front than that, but Google’s reps in China didn’t just approve the site. They also added more than 100 drug names as search keywords, without even asking Whitaker.

The multi-year and multi-agency sting operation resulted in Google signing a nonprosecution agreement with the US Department of Justice to avoid being tried for crimes.  This would be the one that Senator Cornyn questioned Eric Schmidt about at the Senate Antitrust Subcommittee hearing on Google.  When Eric Schmidt invoked his Constitutional protection from self incrimination.  No, I’m not talking about Sam Giancana.

Eric Schmidt took the 5th.

Now why would he do that?  Aside from the fact that he probably knew no reporter would write about it without asking permission of Google and if they did, the Google PR machine would have a chance to tamp it down, probably in the form of Jill Hazelbaker (head of corporate communications at Google). Nothing to see here, move along.

One reason is because the Google board and a number of senior executives are being sued by Google stockholders for, among other things, breach of fiduciary duty.  This is partly because Google knowingly overstated its earnings from illegal stuff.  And we’re not even talking brand sponsored piracy or human trafficking here, but it’s essentially the same idea.

So joining in these very serious derivative lawsuits is the Google stockholder the Orlando Police Pension Fund, who one can easily imagine take a very dim view of their investment in Google being used for ostensibly criminal purposes.  And these are guys who know a RICO when they see one.

As usual, Google has reacted with an obsession for secrecy reminiscent of Richard Nixon.  One interesting passage from the complaint:

Plaintiff made a demand on Google’s board of directors (the “Board”) to, among other things, investigate and bring an action against those senior executives responsible for Google violating the Drug Marketing Statutes which caused, in turn, Google’s forfeiture of $500 million to the U.S. Government.

The Board constituted a committee (the “Committee”) which produced a 149-page report (the “Committee Report”) which it refused to make public but, nonetheless, served as the basis for a six page letter (the “Demand Refusal Letter”) refusing to act on the demands made on the Board. As alleged below in greater detail, the Board has improperly refused and continues to refuse demand and, therefore, Plaintiff is filing this action in order to seek redress on behalf of the Company.

So the Google board of directors used the stockholders money to prepare a report about the stockholder’s lawsuit, but the board won’t share that report with the stockholders whose monies they used to prepare it?

Why so secret, kitty cat?

After all, “if you have something you don’t want anyone to know, maybe you shouldn’t be doing it

Hey Tumblr Users, Why Is This Man Smiling? Because he sold your content and you worked for him for free.

May 20, 2013 4 comments

Great news for Tumblr users–the eponymous Mr. Dave Karp just sold your content for $1.1 billion!  In cash!  And of course, he’s sharing that money with you, right?

No, he’s not.  But then again, record companies, movie studios, newspapers and music publishers don’t share the proceeds with their artists, journalists, songwriters or actors, when they’re sold either.  Of course…that’s not an apt comparison because all those companies paid for the “content” they’re selling.  As Francis Cianfrocca noted adroitly on Coffee and Markets, much of the value of companies like Tumblr is based on the appropriation of user content (and I think you could add YouTube to that list).

I really enjoyed the part of the Copyright Principles Project that dealt with artist rights issue of compensating users when the product of their free labor is sold for big bucks…no wait, that wasn’t covered.

So meet the new boss…worse than the old boss.  Way, way worse.  It’s all about “loser generated content.”

This is what Lessig calls the “hybrid economy.”  Sharing cultures, right?  Very collaborative.

Now bend over and “collaborate.”

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