UPDATE: Goldieblox was given permission to delay their filing responding to the Beastie Boys claims until…wait for it…after the Superbowl. I know–what a coincidence. A filing that was made on January 27–a couple days before the “announcement” that Goldieblox would win the Intuit “contest”. Thanks to Adland, there seems to be a few Twitter bots at work in the Intuit Small Botnet Contest….
I know that MTP readers will find it about as shocking as gambling at Rick’s, but in the Great Circularity, tech company Intuit had the extraordinary bad taste to reward serial dead guy-infringer Goldieblox with a Superbowl ad. This was, of course, the object of the exercise when they ripped off the Beastie Boys and then sued the band. (After they also ripped off Freddie Mercury and Queen in a different ad).
This is reported in the tech press with the usual bias such as this triumph of ambiguity by Todd Wasserman writing in Mashable headlined “Beastie Boys Nemesis Goldieblox is Going to the Super Bowl“:
GoldieBlox, the girls’ toy startup best known for its viral hit video that prompted a legal threat from the Beastie Boys, is going to the Super Bowl, thanks to Intuit.
First of all–“nemesis” rather overstates the importance of Goldieblox except in the minds of the tech press that like to see artists lose. “Serial infringer” might be closer to the truth.
Struggling desperately to couch his story in a light most favorable to Goldieblox and least favorable to the facts (aka the truth), Mr. Wasserman doesn’t exactly lie, but doesn’t exactly tell the truth, either. But if you were to add the fact that Goldieblox sued the Beastie Boys, that might make you wonder what he meant, right?
And then there’s the other fact that for a band that doesn’t like their songs used for commercials, you couldn’t get much more vile than a Superbowl commercial. A Superbowl ad may be a prize poodle in Silicon Valley, but it’s not in Berkeley. At least the part of Berkeley that hasn’t been gentrified by Silicon Valley executives.
So what will Goldieblox do for an encore? There’s a rich litigation field yet to be mined.
How about Lou Reed’s Walk on the Wild Side? The Door’s Light My Fire? 10 Years After’s Goin’ Home? Or of course there’s Ritchie Havens’ Freedom?
Because nothing says Internet Freedom like getting away with it. Especially in a commercial.
Let us be clear–none of these people give a rat’s ass about our survival. So why should we care about theirs?
As one songwriter put it: We don’t like them, we don’t want to deal with them but they just won’t leave us the f— alone.
Some interesting points were made by the Committee and the witnesses at Tuesday’s (Jan 26) hearing before the House Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet on “The Scope of Fair Use”. One high point for me was that the Chairman only had to gavel Professor Jaszi a single time. I guess the red light shall not be remixed.
One witness was Naomi Novik, an author who started out her career writing “fan fiction” and who has now–like a Horatio Alger newsboy–risen to writing the Temeraire franchise that she said had been optioned by Peter Jackson. This is what is sometimes called a story of ascendancy, as old as the American Dream, but this time with dragon dolls and merchandising rights. I’ll refer to Ms. Novik’s Temeraire franchise as “science fiction” although that’s probably off by a subgenre or five. It’s really not my area.
Ms. Novik focused almost entirely on the non-commericial aspect of creating fan fiction, but creation that is closely integrated into the Internet.
In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fanfiction, built online computer games, wrote opensource archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help.
I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren’t trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week.
In a certain unintended irony, while Ms. Novik was using Captain Picard to justify the permissionless taking of Star Trek for fan fiction, Captain Picard was posting a selfie in the viral #irespectmusic campaign.
Like so many others in the tech community, consciously or unconsciously, Ms. Novik equivocates on what Lessig calls the “hybrid economy”: “Sharing” at the user level and commercial exploitation at the distribution level. Some take a different view–this is what is sometimes called the “Web 2.0 antebellum economy.” Monetize free labor to allow the distributor capture both the value of the user generated work and any underlying work. Sometimes the distributor shares that value with the user-author but only rarely with the author of the underlying work.
As I understand the “hybrid economy,” the sharing part and the commercial part are inextricably connected–hence “hybrid”. I think it’s pretty clear that the reason that many users create “remixes” in the first place is to post their “remix” on a commercial site. The users’ distribution options are quite different in the Web 2.0 era than they were in 1994 when Ms. Novik says she started writing fan fiction. I don’t know where Ms. Novik posted her work, but in 1994 that would probably have been free news groups or hacker-ish bulletin boards on the noncommercial side and AOL, Compuserve or Delphi on the commercial side. Those days are long gone, daddy-o.
Ms. Novik’s testimony focuses nearly entirely on the moment of creation and really does not address the commercialization that is inextricably tied to it in this antebellum economy. And however logical it may sound to focus on the moment of creation, that’s not usually where the problem arises.
After creating the “remix,” the user has the option of where to post it. The user could post on a noncommercial site such as Ms. Novik’s own “An Archive of Our Own” website (itself a nice play on Virginia Woolf’s A Room of One’s Own). Or the user could post on a commercial site (such as one owned by a member of the Internet Association).
And therein lies the rub. If there is a clarification that the Congress may consider in the current review of the Copyright Act (in this case Section 107), it is whether this choice to make the remixed work available on a commercial site should itself be a fair use factor or given particular weight in considering “[t]he purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes” and “[t]he effect of the use upon the potential market for, or value of, the copyrighted work.”
A user’s choice of posting such a work on a commercial site (and indeed the fact that the user probably creates the work with the express purpose of posting it on the commercial site where the user may receive a share of advertising revenue) belies the often praised “noncommercial use” which is actually not. Or as David Lowery mentioned in his testimony, a copy masquerading as a fair use.
Ms. Novik clearly came prepared to play on the “potential market” prong of the four statutory factors:
Fair use gave us the right to do that. I’m not a lawyer. But I can tell you that for all of us, what we were doing felt like just that — fair. We watched Star Trek every week. We bought the tshirts and the videotapes and the spinoff books, and when they started making DVDs, we bought those, too.
Unfortunately, Ms. Novik only brought glittering generalities to the discussion. There’s a lot of commerce attributed to “we” and if the implication is that what “we” did in 1994 is representative of what “they” are doing now, the plummeting sale of home video configurations gives it the lie. While I’m sure that some of “we” did all these things, the “campfire” of the Internet wasn’t quite as devoted to massive copying for profit in 1994 as it is now.
But then Ms. Novik kind of slips in the straw man–or in her case, the straw child:
Of course we were going to have our own new ideas about the characters, about the universe, about what might happen. Of course we wanted to share our ideas with each other. When a previous generation watched The Lone Ranger on television and then ran outside to make up new adventures in their back yards, no corporations descended on them with cease and desist letters, attempting to squash the storytelling impulse.
It has never been the case that anyone even thought about trying to stop children from telling stories, making up plot lines, and generally getting some costumes and putting on a play in the barn. But Google wasn’t selling advertising for an afternoon of children’s play, either. And why should Google’s advertising team get to hide behind Captain Picard or the Lone Ranger?
Ms. Novik’s analogy gets ever more strained:
Today the Internet is our shared back yard. It’s where we make friends and meet to play with them, children and adults alike, and when we tell stories, that’s where we tell them. It’s how we share our enthusiasms and our opinions, our responses to the things that excite or disappoint or inspire us.
And it’s where multinational media corporations like Google monetize the distribution of the “shared backyard”, track it, crawl it, take pictures of your house and playground and sniff your children’s wifi. And possibly report it all to the National Security Agency. Not quite the same.
Whose axe was being ground? I noticed that Ms. Novik seemed very intent on creating sympathy for “remix artists” on the receiving end of “automated takedowns.” A couple examples:
Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that’s even possible, they have had to file countercomplaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.
Now who might be a fellow complainer of automated takedowns? Well, let’s see…someone who might be getting 20 million of them a month, perhaps?
So the question is, if these “fair use” creations are noncommercial when created, but created with the knowledge and intent that the “remix” be posted on a site that exists for a commercial purpose, should the fair use defense still be available? And perhaps more importantly, should the intermediary that encourages users to create these infringing works be allowed the DMCA safe harbor (remembering that under U.S. law fair use is an affirmative defense available to an infringer as an excuse or justification for their otherwise illegal conduct).
And just a little food for thought: Ms. Novik appeared at the committee with a stuffed animal that turned out to be a dragon based on her Temeraire franchise. Not just any stuffed animal–no, a stuffed dragon sent to her by a fan. You know, fan merch.
Recall that Peter Jackson (director of the Lord of the Rings and The Hobbit pictures) has optioned Temeraire. There is a long, long way between option and a multimillion dollar opening weekend but let’s just say it happens. Do you think that when the licensed stuffed dragons hit the toy stores that Ms. Novik’s rep and warranty of originality will mean much?
As you may know, the US is one of the few countries in the world that doesn’t respect artists, musicians and vocalists enough to pay them when their songs are played on the radio. That’s right, when you hear “Gimmie Shelter” on the radio, Jagger and Richards get paid for the song but Merry Clayton does not. Even on her own version of the song.
And when you hear “R-E-S-P-E-C-T” performed by Aretha Franklin, the songwriter Otis Redding gets paid a royalty, but Aretha does not. (And neither do the players or background singers).
If you haven’t heard about it, there is a spontaneous petition that Blake Morgan put up at irespectmusic.org that Blake discusses in his MTP interview to tell the U.S. Congress that you respect music (#irespectmusic) and want our artists to be paid for radio airplay.
The wisest among you learn to read your portents well
There’s no need to hurry because the road is all downhill to Hell…
From Don’t Stand Still by The Original Snakeboy
Firedoglake and Redstate have done a great job in focusing public attention on the scandal of Google’s profiting from human trafficking by means of Android applications (see Jane Hamsher Rep. Carolyn Maloney: Google Android Sex App “Appalling Beyond Belief” and Breeanne Howe “Google Profits from Sex Trafficking“).
But one thing we weren’t quite prepared for is the kinds of videos that Google sells ads against on YouTube. Try searching YouTube for “Thai teen girls” and this is what you get:
So in case you don’t know about Pattaya girls, let’s Google them–and check out the paid ad:
So if you were to ask Google about this, they would probably tell you about all the money they’ve given to trafficking…
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[Ed. note: MTP readers will recall that we do not typically post excerpts from the MTP Monthly Newsletter, but we’re making an exception in this case. Get a free subscription by signing up for the blog in the sign up box in the right hand column.]
Artist and music business entrepreneur Blake Morgan spoke with MTPM’s Chris Castle about the I Respect Music movement.
MTP: What’s up with that #irespectmusic hashtag?
Blake Morgan: It’s become a way for people to make a simple but powerful statement about how they feel. I posted a 7 second video in which I wrote it on a piece of paper and held it up to the camera. And since, hundreds and hundreds of people have done the same. If you go to Twitter, Facebook, or Instagram, you can see what’s happening by just searing for that hashtag.
MTP: I have to say that the selfie photo was a brilliant idea, the first one I saw was by the Phillippines artist Joana Marie Lor who posted a very moving photo. Who else do you have doing selfies so far?
Blake Morgan: Thanks! I was talking to a friend of mine about what we were going to do after the inspiring response to my last HuffPo piece, and he suggested that I post that video and the see what happened. I could never have imagined how big the response has been, from music makers and music lovers alike. From major names like David Byrne and John McCrea to “middle-class” working musicians everywhere, the response has been stunning. And from non-musicians too! Even Sir Patrick Stewart did it a couple of days ago! But it’s the bass player in Scranton, the drummer in Toledo, the singer in Omaha–it’s these hard-working artists and musicians that have done it that bring tears to my eyes, hour after hour.
MTP: Did you get any blowback on your Huffington Post piece Art and Music Are Professions Worth Fighting For? The positive response to it was absolutely gripping, you clearly touched a nerve with thousands of people. I would think that the Google’s of this world would not want to promote the idea of music as a career, at least not recorded music that Big Tech can “commoditize” as Thom Yorke might say. [Ed. Note: Blake’s post is reproduced below.]
Blake Morgan: I honestly didn’t. Not even a whiff, even after it hit 40,000 likes. So either that’s a great sign that I made an effective argument…or…it’s that the Big Tech people haven’t quite figured out a way to discredit artists and musicians everywhere yet. You know, those pesky artists and musicians who’s only desire is to honor their professions by getting paid for the work they do.
MTP: Tell us a little about ECR, how did you come to be there and how does it work?
Blake Morgan: ECR Music Group is a company I launched off my laptop 12 years ago, after I’d had to fight to get out of my seven-album multi-year deal with Phil Ramone’s N2K/Sony Music label. A decade or so later, we’re a global music company that sells music in 110 countries around the world. But most importantly, we’ve achieved everything we have while operating under an elemental principle, unprecedented in the music world: all of our artists and labels own one-hundred percent of their master recordings. Turns out that doing what’s morally right also makes the best business sense.
MTP: Who knew?
Blake Morgan: How ’bout that.
MTP: If people want to sign the petition, where do they go?
Blake Morgan: It’s simple, go to: IRespectMusic.org. Take action. Speak up. Make History.
MTP Monthly is Coming Tomorrow with Exclusive Interview with @theblakemorgan on I Respect Music.org campaign and more
Our friend Blake Morgan (@theblakemorgan on Twitter) has started a movement with his Huffington Post article Art and Music Are Professions Worth Fighting for.
Given the 40,000 or so likes the HuffPo piece got, Blake has taken it to the next level and offered the “#IRespectMusic” hashtag on Twitter, which has brought a huge turnout, including Sir Patrick Stewart and Sunny Ozell:
In an exclusive interview, Blake tells us about his inspiration for the campaign to help get a performance royalty for artists–the Artist Pay for Radio Play campaign. A fascinating exclusive in MTP Monthly. It’s free to subscribe in the sign up box on musictechpolicy.com.
We’ll also have a reprint of Blake’s HuffPo post and my story about how Google demoted Rap Genius.
Sign up for all the goods on #IRespectMusic and the first edition of our 5th year of operating the newsletter starting tomorrow!
An Answer for Mr. DeSantis: “Registration” and the Reformalization of Copyright Under the Copyright Principles Project, Part 1
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…
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