Archive for December, 2013

@natgeo and @geico sponsor beheading videos on YouTube…yes, real ones

December 31, 2013 Comments off

UPDATE: Editor Charlie sez: Chris first posted this one in October, and there are still plenty of beheading videos on YouTube, available tonight to cord cutters. With entertainment like this, who needs HBO, right? YouTube has put some of these behind “Content Warning” screen that requires you to sign in with a YouTube account. Also known as giving Google your email address or signing up for a Gmail account. That’s if you want to watch it on YouTube–you can see it just fine off of YouTube if someone embeds it in a referring page, like this:

So YouTube makes it look like they are screening violent videos, but all they are really doing is grabbing users email addresses to sell them other stuff and preserving Google’s monopoly over video traffic by allowing grotesque videos to drive traffic to YouTube through referring sites.

Music Technology Policy


[Editor Charlie sez: Here’s a recent “content warning” video embedded from YouTube:

So YouTube makes it look like they are screening violent videos, but all they are really doing is grabbing users email addresses to sell them other stuff and preserving Google’s monopoly over video traffic by allowing grotesque videos to drive traffic to YouTube through referring sites.


YouTube–the #1 music destination online–is also the home of all sorts of grotesque videos, monetized by YouTube and Google.  Try searching YouTube for “beheading” and you’ll get the idea.  544,000 search results all available for streaming directly into your home, right now, all over Internet television.

Not only is YouTube available at home, but it’s also linked to Google’s education apps, government apps, and by the Android.  And these are not just an odd video here and there, these videos account for millions of views.

Some of the beheading videos…

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An Interview by Rick Carnes

December 30, 2013 Comments off

[Editor Charlie sez:  Here’s an excerpt from an interesting interview from 2009 that Chris Castle did with Songwriters Guild of America President Rick Carnes, a great friend of MTP and a tireless fighter for songwriters.  Read the full interview on the SGA blog.]

Rick:  You constantly take pro-copyright positions that are unpopular with many in the tech community. Since you are a lawyer and all the big money these days seems to be in tech, have your pro-copyright views been bad for business?

Chris:  Well, it is a bit schizophrenic. There are some music lawyers who have essentially abandoned their roots in a rush for the gold, but I’m not one of them. I have been trying to explain the goals of the technology community to the creative community and those of the creative community to the technology community for over a decade. You’re almost certain to make someone mad at you.

I like to think that I try hard to understand where the other side is coming from. When you think about how software is created it’s much easier to understand the collectivist thinking in the anti-copyright groups and the open source mindset in particular.

Code is often created by large groups of people who don’t really benefit very much from the commercialization of their work product and get virtually no individual recognition for it. Because engineers know going in that they will likely never own the rights to the code they create, ownership is almost not a factor. That makes it easier for them to embrace the open source concept. They do get some stock in their companies, but not much and the number of big payouts are relatively small compared to the number of washouts in the boom-and-bust cycle.

Songwriters and artists can and often do own or control every aspect of their work. And this is, I think, the origins of the individualist thinking that makes our creative community different from technology. They have little hope of controlling their labor value and maybe don’t care as much about it because they don’t ever expect to have anything to say about how the Google algorithm is used, for example.

I think it’s a shame that part of the extraordinary value that engineers confer on Google is compensated in free food. Can you imagine saying to a songwriter, we own all your songs, but invite your friends over for mac and cheese? It’s kind of sad. It’s easy to see why they don’t want any union organizers in there.

Engineers are often completely mystified by how many songwriters can control one song and there are many complaints about the complexities of music licensing. They just don’t understand how someone who owns 1/16th of a song can be as important as the writer who owns 50%. That scenario doesn’t seem to happen in the tech world. That’s not a value judgment that one is “better” than another.

I think that many people confound pro-copyright with pro-corporate and that is not true. I don’t think that a pro-copyright position is inconsistent with many tech companies since they rely on copyright as part of their IP treasure chest. It’s incorrect to bunch all tech companies under the same tent.

On the other hand, it is absurd—absurd—that we are into the digital reality 10 years by anyone’s measurement and there are at most three or four companies that have managed to stick out the ridiculously complex licensing requirements for music online. It is virtually impossible to launch a global music brand now without tiptoeing through a minefield of licensing agreements that even experts have trouble navigating.

We have to find a way to lower transaction costs on these licensing problems while maintaining a robust system of economic freedoms and protecting labor value. Every day that goes by without a solution just increases the likelihood that entrepreneurs will prefer to seek forgiveness than ask permission.

Does Gmail Force A Waiver of the Attorney-Client Privilege?

December 30, 2013 Comments off

Music Technology Policy

We’ve all seen lawyer email signature blocks get longer and longer.  Lots of disclaimers about a variety of subjects, but in light of the Google involvement with the National Security Agency and the use of the “third party doctrine“, one disclaimer caught my attention in the email signature of an attorney who does not use Gmail:

Given the uncertainty about the privacy of Google Mail, we recommend that you do not communicate with us by means of a “gmail” account. Visitors to our offices may not bring listening or recording devices such as Google Glass onto the premises, or wear Google Glass at outside meetings.

Both these disclaimers are getting at the same issue:  An attorney’s obligation to preserve the confidentiality of client data, including privileged communications.  The disclaimer calls out the “privacy of Google Mail” aka “Gmail” and it is the combination of Google’s privacy policies and…

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Epsilons at the Brave New Googleplex: Film by Fired Google Whistleblower Explains Horrendous Google Books Metadata

December 27, 2013 Comments off

Given Google’s work for the National Security Agency, the role of the digitizers in creating the most massive translation database in the world (aka Google Books) is even more fascinating.

Music Technology Policy

Here’s another item that won’t make it into the Wikipedia article on “Google, Inc.”

MTP readers will recall the article in the Chronicle of Higher Education by Berkeley Professor Geoffrey Nunberg, “Google Book Search: A Disaster for Scholars.”

[Scholars] need reliable metadata about dates and categories, which is why it’s so disappointing that the book search’s metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess.

Start with publication dates. To take Google’s word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler’s Killer in the Rain, The Portable Dorothy Parker, André Malraux’s La Condition Humaine, Stephen King’s Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams’s Culture and Society 1780-1950, and Robert Shelton’s biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899…

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A Guide to Music Performance Royalties, Part 1

December 26, 2013 1 comment

Music Technology Policy

Let’s start at the beginning.  Broadly speaking, each recording of a song contains two copyrights: the copyright in the “musical work” or what is commonly called the “song” and the copyright in the recording of the song, commonly called the “track” or the “master”.

90% of all mistakes made by anyone in discussions of the online music business (and really the music business in general) starts right there. If you made this mistake, don’t feel self-conscious.  You are not alone, believe me.  Sometimes shockingly not alone.

Ownership and the Inception of CreationA song is not a recording and a recording is not a song. Each can be, and usually is, created by different people.  Songs are created by a “songwriter” (usually teams of songwriters coming together to write a single songs or many songs).  Recordings are created by “artists,” usually teams of artists known as a group or…

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Attention Mr. Almunia: Justice Department Evidence Against Megavideo Confirms Adsense Account

December 26, 2013 3 comments

by Chris Castle

Joaquín Almunia, the Vice President of the European Commission in Charge of Competition currently investigating Google’s unsavory business practices in Europe may wish to consider the dark underbelly of Google’s advertising business when deciding whether to give the company an unprecedented third opportunity to settle the competition questions against the global monopolist.

According to evidence released by the Justice Department in the Megavideo criminal prosecution, Megavideo was a Google Adsense customer until at least May 17, 2007:

On or about May 17, 2007, a representative from Google AdSense, an Internet advertising company, sent an e-mail to DOTCOM entitled “Google AdSense Account Status.” In the e-mail, the representative stated that “[d]uring our most recent review of your site [,]” Google AdSense specialists found “numerous pages” with links to, among other things, “copyrighted content,” and therefore Google AdSense “will no longer be able to work with you.” The e-mail contains links to specific examples of offending content located on

While the quotation appears to be carefully worded email relating to‘s Adsense account, it is unclear whether the government is pursuing the role that Google played in shoveling money to the “Mega Conspiracy” prior to that termination, and whether all accounts that benefited the Mega Conspiracy prior to and after the email were in fact terminated.  Given the numerous examples of Google serving advertising to referring sites that drove traffic to Megavideo, this email quoted by the government actually raises more questions than it answers.

The DOJ also notes evidence that the Mega Conspiracy opened a Google Analytics account for Megavideo to provide data to help the company steal more efficiently, that apparently rose to the level of email exchanges with Google employees:

According to internal e-mails and documents obtained from Google, members of the Mega Conspiracy, including DOTCOM and VAN DER KOLK, began accessing Google Analytics reports for,, and The Google Analytics account was opened at least as early as November of 2008 under the name “TIM VESTOR,” which is an alias for DOTCOM. Google Analytics provides website measurement tools, such as the number of visits during a specified time period….

A particular Google Analytics report shows that between November 19, 2010, and February 18, 2011, had roughly 1 billion visits. Less than 13% of these visits were “direct traffic” — meaning visits that were likely generated by the user having directly typed the URL link into the web browser or having bookmarked the URL link. More than 85% of the visits to were from “referring sites,” meaning the user appears to have clicked a URL link on the referring site that directed the user to The top referring websites during that time period were third-party linking sites, such as (more than 110 million referrals) and (more than 60 million referrals).

The reports from Google Analytics for the following time periods reflect similar data: February 19, 2011 — May 18, 2011; May 19, 2011 — August 18, 2011; August 19, 2011 — October 27, 2011….A particular Google Analytics report shows that between November 19, 2010, and February 18, 2011, had roughly 1 billion visits. Less than 20% of these visits were “direct traffic,” and roughly 80% were from “referring sites.” The top referring websites during that time period were third-party linking sites, such as (more than 50 million referrals), (more than 25 million referrals), and (more than 20 million referrals). The reports
from Google Analytics for the following time periods reflect similar data: February 19, 2011 — May 18, 2011; May 19, 2011 — August 18, 2011; August 19, 2011 — October 27, 2011.

It’s not surprising, then, that the government obtained emails from Google relating to this level of traffic as it beggars belief that a Google Analytics customer with this level of traffic was just kind of getting an automated report.

These reports prepared by Google also demonstrates that Google knew or should have known that its terminated Adsense customer was in a business of getting most of its traffic from referring sites–and as Ellen Seidler has documented on Popup Pirates, these referring sites triggered pop up advertising pages that served “Ads by Google” and did so in the tens of millions.  Advertising for some of the biggest brands in the world.

There was clearly an Adsense account somewhere in this mix for these referring sites, even if the Adsense account for Megaupload got to hot to maintain.  It is now clear that Google was preparing reports that detailed exactly which sites were referring traffic to the Mega Conspiracy.

There are two questions that the DOJ has not asked as yet:

1.  What happened to the money that Google made on Google’s share of revenue paid to the Mega Conspiracy before May 17, 2007?  If this is like other instances where Google has profited from crime (as it told the BBC regarding advertising for counterfeit Olympics tickets, for example) and selling human growth hormone, RU486 and oxycontin, the only way Google will give up any of the proceeds from crime is if Google is criminally prosecuted.  So let’s get on that, shall we? and

2. What is the relationship was between Google and these referring sites documented in the Google Analytics statements it sent to the Mega Conspiracy, how were they paid, and did any of that income originate in the US or was the revenue disguised outside of the US (such as in Google’s China operations that played a leading role in Google’s payment of $500,000,000 for violating US controlled substances laws.  Did Google provide any income tax disclosure or filing regarding the income, including for its own share of advertising revenue?  (Actually paying tax might be a bit much to expect, but at least telling the government how much income it was not paying tax on might have happened.)  Was any of this income included in SEC filings and audited financial statements for Google and if not, why not?  What did Google’s CFO Patrick Pichette know and when did he know it?  Or perhaps John Dixon at Ernst & Young?

There’s a term for this…what is it again?  Oh, yes.  A Racketeer Influenced Corrupt Organization a/k/a how they sent  Michael Milken to prison and bankrupted his company for a lot less evil.  If the U.S. government is not going to pursue this investigation, Mr. Almunia is perfectly positioned to do so–why would he want to give an unprecedented third chance to a company that does not come to him with clean hands?

As the DOJ tells us:

On or about September 2, 2007, via Skype, VAN DER KOLK said to ORTMANN, “we’re modern pirates :-)”. ORTMANN responded, “we’re pretty evil, unfortunately”, “but Google is also evil, and their claim is ‘don’t be evil.’”

It takes a conspirator to know a conspirator.

Media Lecturers at London School of Economics Misquote Professor Danaher

December 26, 2013 Comments off

Music Technology Policy

The results-oriented “study” from the media lecturers at the London School of Economics sets out to “prove” that the graduated response law in the UK should be “reviewed” (which really means “stopped” as the authors later revealed in a blog post):

The experiences of other countries that have implemented punitive measures against individual online copyright infringers indicate that the approach does not have the impacts claimed by some in the creative industries.

One of the studies that these LSE media lecturers cite to support their claim is the frequently misquoted but detailed econometric review of the HADOPI graduated response law in France: The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France, by Professors Danaher, Smith, Telang and Chen.

The LSE “study” cites Danaher et al for this proposition (text accompanying note 22):

The evidence was that the increased…

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