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Rep. Lofgren’s Flawed Approach to Employee Relations

April 30, 2017 Comments off

Rep. Zoe Lofgren (D-Google) posted a rather extraordinarily desperate press release about HR 1695 (the Register of Copyrights Selection and Accountability Act) that has a lot of flaws, but here’s one in particular that stuck in the craw.

Rep. Lofgren’s criteria for a suitable candidate for the head of the U.S. Copyright Office is particularly striking; the most suitable candidate would be “…an active Register of Copyright who is compliant and accountable to the Librarian.”

Savor those adjectives for a moment and then ask yourself how it would go with a human resources department if you included those words in a job description.

WANTED:  A compliant and accountable, yet active, employee to report to the executive suite. NOW HIRING!

Or perhaps in an employee performance evaluation:

Employee X [was/wasn’t] sufficiently compliant and accountable.  She [willingly/failed to] accepted everything I blamed her for without question.  She [was/wasn’t] sufficiently “active”.

You know–check all that apply.

Or maybe a qualitative scale:

Employee X’s cooperation in struggle sessions was (check one)

Not Compliant   Sufficiently Compliant  Exceedingly Compliant

Want a prediction for how that kind of vocabulary would be received in this century by any HR department in the world who didn’t also employ Don Draper?  Gnashing of teeth and rending of garments about sum it up?

I’d suggest that this is exactly the kind of executive vocabulary that foreshadows the lack of sensitivity that often results in retaliatory firings.

Just sayin’.

 

 

 

The Politics of Librarians

April 28, 2017 1 comment

The lopsided vote this week on HR 1695 (the Register of Copyrights Selection and Accountability Act) invites an explanation (378-48).  Some people were surprised by just how few votes the opposition got but the spread in our office pool was at least 300 voting “yes”.  Why?

You hear different explanations for this such as Republicans like property rights so they want strong copyright laws and the Democrats like Hollywood, so naturally they’d all support an independent Register of Copyrights.  Neither stereotype is universally true, obviously–House Minority Leader Pelosi voted against the bill.  The more interesting stereotype is the one about Republicans.

While it may be a transitive aspiration (“Republicans like strong property rights so they ought to like copyright”), it is simply not true that all Republicans like strong copyrights no matter how they feel about property rights in general, particularly the Republicans who work at think tanks funded by you know who.  In fact, while libertarians may politically identify as nominal candidates of the Republican Party in certain cases (see Freedom Caucus), there are a boatload of libertarians who do not like copyright much at all (the “statutory monopoly” crowd).  Copyright is too long, too broad, too complicated, always too something.  Not to mention that even if they did want strong copyright, this bill is kind of an arcane way to show that enthusiasm.

So I believe it misses the mark to think that you can count on Republicans to support a strong copyright bill, or even (and maybe especially) the Register of Copyrights Selection and Accountability Act in the Senate when the bill is introduced in that body.  Particularly if you think that they should support it because they are Republicans.  It’s quite unclear to me that political party affiliation has anything to do with it.

I do believe that there are two main reasons why the vote was so lopsided in the House that are worth noting in the much more potentially procedurally treacherous Senate (home of the anonymous hold) where unanimous consent is used as a sword as frequently as it is a shield.  First and foremost, the House bill was successful because it was carried by Chairman Goodlatte and Ranking Member Conyers, masters of the legislative process.  When that 27-1 vote happened on the bill’s second reading in the Judiciary Committee, it should have told you right then that Goodlatte and Conyers meant business, and that was when the spread went to 300.

Chairs of Congressional committees are not in the habit of having their bills voted down.  So there’s that.  We need to make sure that we have good legislating on the Senate side.

But I think a necessary factor was that the opponents overplayed their hand as they have been doing for years.  This surfaced in two forms.  One was the mudslinging by Rep. Lofgren (and the Google Shill Chorus) against Maria Pallante, the former Register who was, in my view, the subject of an unlawful constructive termination by the Librarian of Congress for starters.  Plus, the idea that some star chamber inspector general report that is full of loose ends was somehow going to undo years and years of trust and respect for Pallante that started well before her appointment as Register was just preposterous.  Nobody should have bought it, and by the look of the vote, most did not.

The other factor is that tech industry lobbyists have been in every Member’s face for years,  including with SOPA (aka the apotheosis of fake news).  When you have these people jumping in your stuff every minute if you take a wrong breath, it gets really, really, really tiresome.

If you want to find a factor that explains the lopsided vote on this particular bill, it starts with people who overplayed their hand and couldn’t deliver, and it ends with Members being sick and tired of being overlobbied.

Is the vote a “rebuke” of the Librarian of Congress?  Maybe, but I’d pass on the stereotypes when there’s a far simpler explanation.

Nobody likes to get jacked around–and that’s a bipartisan issue.

A Must Read by Stephen Carlisle: Enjoy the Silence

April 28, 2017 Comments off

Many times, I am asked to speak to student law associations and sometimes to artist associations. At these, there are frequent questions about the future of the arts in the era of unfettered internet exploitation. My response is usually in the form of a question: “Did you hear that? (Silence) “Let me ask you again…

via A Must Read by Stephen Carlisle: Enjoy the Silence — Artist Rights Watch

@musictechsolve: Five Things Congress Can Do to Stop Tens of Millions of “Address Unknown” NOIs

April 27, 2017 Comments off

 

March Spotify NOI Filings

Amazon, Google, Pandora, Spotify and other tech companies are taking advantage of their influence in the Library of Congress to leverage a loophole in the Copyright Act to their great benefit and to songwriters great harm. Congress can stop them overnight if the Congress will act.

via Five Things Congress Can Do to Stop Tens of Millions of “Address Unknown” NOIs — Music Tech Solutions

Register of Copyrights Selection and Accountability Act Passes the House 378-48

April 26, 2017 Comments off

More to come, but HR 1695 the Register of Copyrights Selection and Accountability Act has passed the U.S. House of Representatives on a roll call vote of the Yeas and Nays, 378 for and 48 against.  Thanks to Maria Pallante for inspiring us and everyone who called, wrote, signed petitions and talked about it to your friends and neighbors, thanks to the bands in the vans and everyone who would not be cowed.  This victory is for you.

 

#irespectmusic: House Judiciary Voting Today on HR 1695 the Register of Copyrights Selection and Accountability Act

April 26, 2017 Comments off

The House Committee on the Judiciary says the House will vote on HR 1695 today–the bipartisan Register of Copyrights Selection and Accountability Act.  If you haven’t already, call your House member today and ask them to vote YES on HR 1695!

“Today the House of Representatives will consider the bipartisan Register of Copyrights Selection and Accountability Act (H.R. 1695), which makes important changes to the selection process for the head of the U.S. Copyright Office, known as the Register of Copyrights.  The legislation — introduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers, Jr. (D-Mich.) — enjoys the support of a broad coalition representing many vital sectors of the American economy.”

Here is a list of stakeholders supporting the bill:

21st Century Fox
Administrators of Gospel Music
Adobe Systems
American Association of Independent Music
American Black Film Festival
American Chemical Society
American Conservative Union
American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)
American Federation of Musicians
American Intellectual Property Law Association (AIPLA)
American Photographic Artists
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers
Americans for Tax Reform
Artist Rights Society
Association of American Publishers (AAP)
Association of Independent Music Publishers
Association of Magazine Media
Authors Guild
Broadcast Music, Inc.
Center for Individual Freedom
Christian Music Trade Association
Church Music Publishers Association
Consumer Alliance for a Strong Economy
Content Creators Coalition
Copyright Alliance
Copyright Clearance Center
Council for Citizens Against Government Waste
CreativeFuture
Digital Media Licensing Association
Directors Guild of America (DGA)
Free State Foundation
Frontiers of Freedom
Future of Music Coalition
Getty Images
Global Music Rights
Gospel Music Association
Graphic Artists Guild
Heritage Foundation Scholars
Hispanic Technology & Telecommunications Partnership

Independent Film & Television Alliance (IFTA)
Independent Women’s Forum
Information Technology & Innovation Foundation (ITIF)
Intellectual Property Owners Association (IPO)
International Alliance of Theatrical Stage Employees (IATSE)
International Center for Law & Economics
MANA
Marybeth Peters, Former Register of Copyrights, 1994-2010
Motion Picture Association of America (MPAA)
Nashville Songwriters Association International
National Association of Broadcasters (NAB)
National Music Publishers’ Association (NMPA)
National Press Photographers Association
NBCUniversal
News Corp
News Media Alliance
North American Nature Photography Association
Oracle
Pearson
PLUS Coalition
Professional Photographers of America
Property Rights Alliance
Ralph Oman, Former Register of Copyrights, 1985-1993
Recording Academy
Recording Industry Association of America (RIAA)
RELX Group
Screen Actors Guild and the American Federation of Television and Radio Artists (SAG-AFTRA)
SESAC
Software and Information Industry Association (SIIA)
Sony Music Entertainment
SoundExchange
Taxpayers Protection Alliance
Third Way
Universal Music Group
US Chamber of Commerce
Viacom
Walt Disney Company
Warner Bros.
Warner Music Group

Content Creators Coalition Responds To Rep. Zoe Lofgren’s Attack on Goodlatte and Conyers

April 25, 2017 1 comment

[Cross posted from Artist Rights Watch]

I want to call your attention to a letter by members of the Content Creators Coalition regarding the Copyright Office.  First, a little context.

In case you missed it, Rep. Zoe Lofgren (D-Google) has been on a tear to oppose a bill in the House of Representatives (HR 1695) to both widen the pool of potential candidates to head the Copyright Office (called the “Register of Copyrights” for historical reasons) and elevate the office to a presidential appointment like the head of the Patent & Trademark Office.  (By the way, support HR 1695 by signing the CreativeFuture petition if you haven’t already.)

The bipartisan bill, authored by Chairman Bob Goodlatte and Ranking Member John Conyers and passed by the House Judiciary Committee 27-1 by its very nature increases the level of transparency in the appointment of the Register of Copyrights and maintains continuity by including the Librarian of Congress in the group that can recommend candidates to the President.

Currently, the Librarian of Congress is the only one who decides on the Register’s appointment and is the only one who can fire the Register.  HR 1695 changes that so that the President hires based on a recommendation from certain offices including the Librarian and fires.  Here’s the group that will recommend the Register when HR 1695 becomes law:

(6) PANEL FOR REGISTER OF COPYRIGHTS RECOMMENDATIONS.—There is established a panel to recommend a list of at least 3 individuals to the President for appointment as the Register of Copyrights. The panel shall be composed of the following:

“(A) The Speaker of the House of Representatives.

“(B) The President pro tempore of the Senate.

“(C) The majority and minority leaders of the House of Representatives and the Senate.

“(D) The Librarian of Congress.”;

Why is this change necessary?  Mostly because the Copyright Office has languished in the Library of Congress since its inception in the 19th century and is entirely dependent on the Library’s systems and budget for its own operations.  It’s no secret that HR 1695 is the first step toward making the Copyright Office its own agency, similar to the Patent and Trademark Office.

It’s also necessary because the current Librarian abruptly separated the last Register in a murky process that smacks of a retaliatory firing or political shenanigans.  The Wall Street Journal described it:

“Most Americans think of Google as a search engine doing unalloyed social good, but the company also wants to make money and wield political influence along the way. So you don’t have to be a conspiracy theorist to notice that an abrupt change of leadership at the U.S. Copyright Office is good news for Google, which aims to pay less for profiting from the property of others….

Ms. Hayden’s allies say she simply wants to install her own loyalists, and maybe so. Ms. Pallante favored reorganizing the copyright office as an independent agency, which might have felt threatening to Ms. Hayden. But we can find no similar removal of a copyright register, and the details are unusual.

 The Library’s public announcement said nothing more about Ms. Pallante’s tenure than that it “laid the groundwork for important modernization.” But in a memo to Ms. Pallante that leaked to the press, Ms. Hayden stipulated that her new job did not include “any communications” with Congress, which was reviewing copyright laws with Ms. Pallante. The House Judiciary Committee put out a bipartisan statement calling Ms. Pallante’s departure a “tremendous loss.”

There is some circumstantial evidence that Google’s lobbying influence was brought to bear in removing Ms. Pallante, though both Google and Ms. Pallante declined to talk to us. Google’s business model is essentially making money off other people’s content, and the company’s strategy has been to infringe on copyrighted material like books and fight it out later in court. The copyright office administers laws that protect owners….

Ms. Hayden is now looking for a copyright office successor, and don’t be surprised if she chooses someone whose experience includes time at Google. This is reason enough for Congress to take a look: If the position is open to political influence, then the register should be politically accountable—and report to elected officials, not the nation’s librarian.

Perhaps these are all coincidences and Ms. Hayden merely botched a personnel dispute. But she now has an opening to install a register friendly to Google, and anyone tempted to write off the Pallante dispute as bureaucratic squabbling should remember: The company’s goal is to defenestrate laws that protect property.

After the Librarian’s botched handling of Pallante’s departure, Goodlatte and Conyers announced in December of last year that the next Register would be appointed differently–and introduced HR 1695 on March 23, 2017 after the new Congress was seated.  They even made a video about it last December:

Needless to say, this did not sit too well at the Googleplex.  All of the proxies started dancing (you can find most of them on the venerable Google Shill List from the Oracle v. Google lawsuit), and yet the bill passed out of the House Judiciary Committee with one Member complaining–the Representative from Google, Zoe Lofgren.

pk-google-shills

Yesterday, Ms. Lofgren posted a rather extraordinarily desperate press release in which all cards were played at once.  Entitled “Don’t Trump the Library of Congress” (so you know where that’s going), Lofgren said:

“Despite the rushed manner in which this bill has been brought to the floor, there is absolutely no coherent rationale advanced as to how it will improve the administration of the Copyright office. Instead, this bill will only harm the public good, create a dysfunctional relationship between the Library of Congress and the Register of Copyright, and serve to delay Copyright modernization.

“First, Removing Dr. Hayden’s ability to appoint the Register of Copyrights means she will be unable to hold employees accountable and creates uncertainty and ambiguity in the chain of command between the Librarian and Register of Copyrights.

“The previous Register of Copyrights was removed after a Library of Congress Inspector General report found the Copyright Office not only wasted six years and nearly $12 million but hid this information from Congress, falsified information in reports to the Library, and submitted fake budget numbers for annual appropriations requests.

“Dr. Hayden took appropriate steps to remove the Register responsible for this mismanagement. This bill would prevent Dr. Hayden from removing or ensuring accountability in any future Register by making the Register answerable only to the President – a fundamental change in the relationship between Librarian and Register.

“Second, and most fundamental to the operation of the Copyright Office, this legislation will harm and delay much-needed modernization efforts by making the Register a Presidentially appointed position. Currently, there is a backlog of 495 Appointee positions that have not even been nominated. This not only will delay effective administration of the Copyright Office, but also puts the efficiency gains made by the Library at risk. Under current modernization plans, the Library believes it can speed up the modernization plan by almost two years and save significant amounts of money. Those plans depend on an active Register of Copyright who is compliant and accountable to the Librarian. The long delay created by this bill in needing Senate confirmation of a Register will only harm these efforts.

“Finally, the bill is a clear affront to the first female Librarian of Congress. Dr. Carla Hayden is not only one of the most highly qualified Librarians ever to serve, but has also worked aggressively and in good faith to pull the Library and Copyright office into the 21st century. I find it deeply disturbing that for the first time in history, a female and a person of color is the Librarian of Congress, and for the first time in history, Congress would take away her power in order to give it to Donald Trump. While this does not point to motive, it is a distressing fact nevertheless.

“This bill is a vote of ‘no confidence’ in a Librarian who is aggressively pulling the Library and Copyright Office into the 21st century and, by all evidence, justifiably reassigned an ineffective and negligent Register. It will only serve to delay Copyright Office modernization, harm the public, harm content creators, increase tension between the Library and Copyright Office, and harm Copyright Office employees.”

A couple points:

–Remember, Goodlatte and Conyers MADE A YOUTUBE VIDEO months ago telling us all exactly what their intentions were.  There was nothing “rushed” about the bill, aside from the fact that a Chairman of a Congressional committee should be expected to get one of his own bills through the committee in double quick time.  Which he did, surprise surprise.  And the vote was 27-1 to send the bill to the whole of the House–again, is this any great surprise that a Congressional committee chair could get his own legislation passed by his own committee?

–Whatever mud that Ms. Lofgren is stirring up to slag Pallante, the people who are in the best position to know the truth–the other Members of her subcommittee, the Committee on the Judiciary and soon the entire House–don’t seem to be buying it for one second.  In fact, the whole episode is dealt with in the legislative history for HR 1695 with this line:

During the markup, negative comments were made about the prior Register of Copyrights [Maria Pallante] that do not reflect the longstanding professional and honorable relationship this Committee enjoyed with the former Register.

Buh-bye.

–Let’s be clear about something else–the Register of Copyrights has a long history of balancing the public interest along with the interests of creators and music users.  Despite the best efforts of the Google chorus, there are a lot of things that the Copyright Office has done that creators don’t like, including some that actually hurt creators.  Take the mass “address unknown” NOIs, for example.  So let’s not start talking about “agency capture” and bias.  That’s just bunk.

–If the reason the Librarian “removed” Pallante was for “mismanagement”, the Librarian certainly kept that fact to herself when she separated Pallante in October 2016–the Inspector General report Ms. Lofgren references that supposedly documents “mismanagement” was dated February 2017 and was leaked in the last couple weeks, apparently by Ms. Lofgren.  It never came up in all the back and forth over Pallante’s departure–so how could it have been the cause for her separation?

This revisionist history starts to sound like termination for cause, not termination because of a disagreement over policy which is what all of these same defenders of the Librarian said at the time Pallante was separated.  If there was cause, don’t you think that someone would have brought that up last October when Pallante was fired instead of hearing about it for the first time in reaction to HR 1695?  Maybe nobody raised it as the reason for Pallante’s separation because it wasn’t the reason.

This is particularly strange given the timeline referenced in Librarian’s comments to the Inspector General’s report (Appendix B)–“Last summer [of 2016, as in before the current Librarian took office on September 14, 2016], based on an independent third party-assessment…ordered by the Copyright Office [i.e., while Pallante was still Register]…at the Copyright Office’s request, the Library terminated [the project involving the supposed “mismanagement”].”

Sounds like some facts are either missing from Ms. Lofgren’s press release or at least require considerably more clarification.  Plus, there is no “management response” from the Copyright Office in the IG’s report, so we only get one side of the story.

–Ms. Lofgren’s attack may state too much:  “[The Librarian’s] plans depend on an active Register of Copyright who is compliant and accountable to the Librarian.”  “Compliant”?  Really?  Wait–this is 2017 right?  Do we still speak of “compliant” employees?  Or colleagues?  Ms. Lofgren evidently wants the Register to be a rubber stamp for the Librarian.

The rest of Ms. Lofgren’s rambling can best be addressed by this letter to the Congressional Black Caucus from artist members of the Content Creators Coalition.  (I had the honor to participate in a symposium on moral rights at the Copyright Office last year with Melvin Gibbs, one of the signers.)

April 25, 2017

Congressional Black Caucus Member:

On behalf of the Content Creators Coalition, we write in support of H.R. 1695, the Register of Copyrights Selection and Accountability Act, which would modernize and provide greater transparency to the process of selecting the Register of the Copyright Office.

This is vital legislation that will strengthen the Copyright Office.  We believe this selection process should be granted a similar import, rigor, and transparency as the processes of selecting other organizations, such as the U.S. Patent and Trademark office, that oversee large industries: Presidential nomination and Senate confirmation.  In light of the specialized knowledge required to lead this office, we also support the appointment of an advisory group to suggest candidates for consideration.

This legislation would place the Copyright Office on equal footing as other economically and culturally vital agencies.  It has wide bipartisan support and was passed out of the typically polarized House Judiciary Committee on a vote of 27-1.

As artists of color, we find it deeply offensive that opponents of this bill have attempted to recast their anti-creators’ rights goals into a smear campaign against its sponsors and supporters, insinuating that the legislation is about the race and gender of the current Librarian of Congress.  The Register of Copyrights Selection and Accountability Act is co-authored by the Dean of the House and the Congressional Black Caucus, Judiciary Ranking Member John Conyers, and supported by Congressman John Lewis.  Their lifelong and unshakeable commitment to civil rights is a historical fact and should be honored and respected, not opportunistically and baselessly questioned just to score a few empty political points.

We would be the first to speak out against prejudice or bias anywhere – in business, culture, the arts, or politics.  But here, we know these charges are false.  The bill has nothing to do with the current Librarian at all – in fact, these reform proposals pre-date her appointment.

Nor does this bill have anything to do with the former Register of Copyrights.  We are grateful for her tireless efforts and advocacy on behalf of working musicians and find it appalling that some have engaged in efforts to drag her record through the mud to defeat these reforms.

And certainly the bill has nothing to do with the current President – once again, these proposals to modernize the Copyright Office long pre-date his election.  It is the height of cynicism for bill opponents to attempt to ride on the powerful coattails of the “RESIST” movement by falsely wrapping this bipartisan pro-artist, pro-creator legislation in the controversies surrounding the President, especially in light of his proposal for massive cuts to funding for the arts.  In our view, misleading the President’s critics by leveraging fear into opposition for a non-controversial proposal like this ultimately undermines and disrespects our movement.

The need for this legislation is plain.  The current system in which the Librarian of Congress selects the Register is the result of a unique moment in history and outdated concerns: in 1870, the Librarian of Congress asked Congress to give him the authority to appoint the Register in order to deal with a massive influx of new works and the need to quickly grow the Library’s collection.

Nearly 150 years later, the functions of the Copyright Office have changed.  It is no mere registry of creative works, but has become the most trusted advisor on Copyright law and its interpretation for the United States Congress. The process of selecting a leader to this office should reflect the importance of copyright to the U.S. economy.

Congress is reviewing and revising copyright laws to ensure they continue to protect all music creators in a time of rapid transition online.  It deserves the best advice it can get, and reform of the Register selection process is long overdue.

Thank you for consideration of our views,

Melvin Gibbs

Nona Hendryx

Ernie Isley

Ramsey Jones

Darrell McNeill

V Jeffery Smith

Melvin Gibbs is the President of the Content Creators Coalition. He is an American bassist, composer, and producer who has appeared on close to 200 albums. He has worked with numerous iconic acts across genres, including Cassandra Wilson, DJ Logic, the Power Tools trio with Bill Frisell and Ronald Shannon Jackson, Defunkt, Sonny Sharrock, Arto Lindsay, Dougie Bowne, the Rollins Band, Eye and I, Harriet Tubman, and more. Time Out New York magazine called him “the best bassist in the world.”

Nona Hendryx was one-third of Labelle, the Grammy nominated trio best known for their hit song “Lady Marmalade.” She performed on the Artists Against Apartheid project Sun City, recorded along with Bruce Springsteen, Bono and Lou Reed.  She sang backup and toured with the Talking Heads and opened for The Who and The Rolling Stones.

Ernie Isley is a songwriter, guitarist, and member of the Isley Brothers, considered one of the most influential groups of the last half-century.  Their music has spanned doo-wop, rock n’ roll, R&B, soul, funk, disco and hip-hop, with hits like “Shout,” “It’s Your Thing,” and “That Lady,” and 50 singles on the R&B charts between 1969 and 1988. The Isley Brothers were inducted into the Rock n’ Roll Hall of Fame in 1992, and received the Grammy Lifetime Achievement Award in 2014.

Ramsay Jones is part of the Wu-Tang Clan family and has appeared on many of their releases. He is a drummer whose playing has been called the heartbeat of the Funkface sound. He has also played with likes of Vernon Reid (Living Color), Falu, Martin Luther, and Apollo Heights.

Darrell McNeill is Director of Operations of the Black Rock Coalition, a nonprofit dedicated to expanding and advancing opportunities for Black musicians. The organization is a united front of musically and politically progressive Black artists and supporters, with collaborators including Meshell Ndegeocello, 24-7 Spyz, the members of Living Colour, Fishbone, and Sean “P Diddy” Combs.  He is a renowned bassist.

V Jeffrey Smith is a multi-instrumentalist. He is the writer/producer of Paula Abdul’s #1 album Spellbound. He has also produced artists like Daryl Hall (Hall and Oates) Corey Glover (Living Color) Heather Headley, Tamia,  and many more. He is the co-founder and member of the group, The Family Stand.

Don’t forget to sign the petition.

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