Home > artist rights > 8 Takeaways from the “tech panel” at the IP Subcommittee Hearing

8 Takeaways from the “tech panel” at the IP Subcommittee Hearing

August 1, 2013

Every now and then you get a gift from the ether–today’s hearing “Innovation in America: The Role of Technology” at the Subcommittee on Courts, Intellectual Property, and the Internet was no exception.  It’s hard sometimes to convince lawmakers and staff that “yes, they really are that self-centered” when speaking of the groovier-than-thou Big Tech community, so it’s always nice when Big Tech does it for you.

First of all–get it straight that it is highly unlikely that anyone on today’s panel uttered a word that was not approved somehow by Google or its intermediaries. And certainly not one word was uttered that would give Google any heart palpitations (or as they say in the mountains, “agida”).

Having said that, I think the testimony of the witnesses at today’s hearing can be distilled into a few recurring themes, although I encourage anyone who thinks I’m oversimplifying to read the transcript or watch the video feed.

1.  Resistance is Futile:  Technology is an unstoppable force and it will roll over anyone who gets in its way.

2.  Badges?  We Don’t Need No Stinking Badges:  The Congress can pass all the laws that it wants, but if a thing can be done on the Internet it will be done on the Internet regardless of the law.  So legislate away, Congress, but your laws will be ignored.  (See #1, resistance is futile.)

3.  Cost of DMCA Notices:  Mr. Lindberg gets the unintended consequences award:  Poor little tech company has to employ people to respond to DMCA notices.  Poor baby.  Ain’t that just a shame?  Guess who also has to employ people to deal with infringement?  Artists.  Except for the ones that are so beaten down they can’t afford it or who have succumbed to learned helplessness and have just given up.  (Because…see #1, resistance is futile.)

4.  Innovation for Me but Not for Thee:  The message time and again was that artists (of all kinds) must make room for “sharing”–you know, free labor.  In a quick “back to the future” trip to 1999, Mr. Fructerman actually started waiving his arms about “obscurity” and the t-shirt economy.  He just didn’t realize that he was speaking to one of the most knowledgeable committees in the Congress when it comes to the “exposure” and “promotion” theories of “sharing”, so we can forgive him for embarrassing himself that way.  We’ll say what the Members were too polite to say:  It’s crap, everyone knows it’s crap, except, apparently, the witnesses.  (See #3.)

5.  We’re Too Cool to be a  Licensed Broker Dealer:  Crowd funding looks like a general solicitation, acts like a general solicitation and is raising enough money that it will eventually defraud investors like a penny stock salesman distributing a general solicitation.  (Which is why we have an SEC and licensed broker dealers.)  The fact is, they take a 4% vig off the top which is something on the larger solicitations that not even Goldman Sachs could get away with.  (See the 5-4-3-2-1 “Lehman Formula“.)  (See #1 and #4.)

6.  Radiohead and Nine Inch Nails Are Not Such Good Examples:  Once again, Radiohead and NIN were brought up as examples of bands that promoted “sharing.”  Check it out, that’s kind of in the rear view mirror.  There’s this guy, Thom Yorke, you may have heard of him.  And NIN is now at at Columbia.  (For Valley-ites, that’s Columbia Records, not Columbia University.  Or Colombia.)  Also–try picking a couple of success stories by bands that weren’t famous already before 1999.  Meaning, something that’s not on your Grooveshark playlist.  All that these examples prove is how much brand name capital can be extracted from artists by technology.

7.  Loser Pays: There was a lot of talk about patent trolls at a copyright hearing, which pointed to a direction I kind of like a lot:  loser pays for IP litigation, particularly copyright litigation.  Anytime, pal, anytime.

8.  Artist Rights:  One thing that was never explained by the witnesses was how these “new artists” in the antebellum “sharing economy” that profits the Big Tech overseers (particularly one) felt about their rights in their own works.  Is there something that happened in 1999 that suddenly made creators not expect to be compensated when a big corporation made money from their work?   That would be a real departure from history.  Or is it that no one asked them?

Why would we believe that corporate suits like Mr. Lindberg speak for artists in the “sharing economy”?  Here’s a big difference: members of unions vote for their representatives like the American Federation of Musicians and SAG-AFTRA, the Directors Guild and the IATSE.   There’s a whole bunch of laws to make sure that the members get a vote.  Users of YouTube don’t get these votes.  Neither do users of Creative Commons.  Or users of Facebook, Flickr, Instagram, or Tumblr.  So people like Mr. Lindberg or Mr. Von Lohman, or Mr. Lessig were not elected by anyone.  They are all just men on white horses trying to find a parade to ride in front of.

The idea that these guys come in front of the United States Congress and pretend to be the designated representatives of any creator is yet another example of the hubris of Big Tech.  Don’t you think it’s obvious to elected Members of Congress who know what it means to represent a constituency that you are kind of embarrassing yourselves with your overreach–yet again?

PS–never a good idea to interrupt Members.  But I’m sure it’s OK if you think that what you have to say is so important that it’s right up there with Whirled Peas.

  1. Trichordist Editor
    August 1, 2013 at 15:39

    Reblogged this on The Trichordist and commented:
    Artists and Creators or all types, this is what you are up against, and we’re not even kidding. Wish we were… this is a Must Read.

  2. August 1, 2013 at 15:59

    Reblogged this on Mae Mai and commented:
    *sighs* The NIN and Radiohead examples are getting old!

    6. Radiohead and Nine Inch Nails Are Not Such Good Examples: Once again, Radiohead and NIN were brought up as examples of bands that promoted “sharing.” Check it out, that’s kind of in the rear view mirror. There’s this guy, Thom Yorke, you may have heard of him. And NIN is now at at Columbia. Also–try picking a couple of success stories by bands that weren’t famous already before 1999. Meaning, something that’s not on your Grooveshark playlist. All that these examples prove is how much brand name capital can be extracted from artists by technology.

  3. alec
    August 1, 2013 at 16:33

    Chris,

    As to #3:

    I found practically Orwellian Rackspace’s claim that the DMCA “notice and takedown” process, embodied in 17 USC 512, is an example of copyright owners forcing companies like Rackspace to share the costs of protecting copyrights. If he thinks Section 512 is so bad, would he support repealing it (I know a lot of copyright owners would!!)? Of course not – because the truth is the opposite of what he claims. Section 512 represents a huge give to ISPs at the expense of copyright holders – it provides ISPs with a safe harbor from copyright infringement liability, and thus REMOVED their then-existing legal obligation, in many circumstances, to pro-actively patrol their services for copyright infringement and stop it. Through enactment of Section 512, Congress took away copyright holders’ rights to sue ISPs for copyright infringement, and all it gave them in return was a stinking, whack-a-mole tee shirt (notice and takedown). Again, if Rackspace wants to get rid of the terrible burden of complying with “notice and takedown”, then let’s repeal Section 512.

  4. Kat
    August 2, 2013 at 20:41

    Amen to alec! Why distributors of physical product should be liable if a CD is pirated but ISPs are not when pirated product is digital is completely beyond me. Makes no sense at all and needs to change. ISPs need to be held accountable. They’ve got the software to handle it.

    Before posting, maybe uploaders should be required to jump through the myriad hoops content creators have to jump through to get our work taken down. They should have to sign and scan and email a written declaration under penalty of perjury that the material they are about to upload is owned or controlled or licensed by them. And, if we want to be positively Googly/YouTubian, give the copyright office’s registration number for their SR, PA, or recorded document.

    We need a central database of all entities authorized to upload our material. I’m sure Google could do this in a trice. SoundExchange has a very admirable and effective system for Copyright holders to ensure they are receiving performance royalties; it could be modeled after that. Digital distributors have databases all ready to go, so a master linked database is certainly feasible. If Google can index the World Wide Web, they can jolly well ensure that Copyright Law is not being broken and our culture halts the corrosive slide into amateur.

  5. Chris Castle
    August 4, 2013 at 07:24

    Your ideas are, of course, quite sensible and are to one degree or another followed by every legitimate CD duplicator in Canada, Europe, the UK and US. And in fairness, are followed by iTunes for the most part. But when discussing these issues with the Google or the Google’s cronies, look for the phrase “permissionless innovation.” That is at the core of the Google’s “innovation” strategy. The Google takes your work and then you sue them to get it back after they make you jump through the hoops (in the US) of DMCA, CDA, and fair use for starters. Fully litigating those issues will take a few years and they can make it cost you $1 million or two or five in legal fees.

    This is, in my view, why you need to go for the fraud, theft (conversion) and misappropriation type claims that are not subject to the safe harbors. For example, in The Turtles class action recently filed against Sirius, the claim was for conversion of pre-72 masters to which I believe will be shown the DMCA and CDA do not apply.

    I am also less sanguine than you about the quality of the data anywhere but iTunes. Google, for example, is incentivized to have horrible data as has been demonstrated time and time again. See “Google Book Search: A Disaster for Scholars” http://chronicle.com/article/Googles-Book-Search-A/48245/

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