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Loophole Competition: Is Google’s News’ Richard Gingras the Counterpart of YouTube’s Lyor Cohen? via ArtistRightsWatch

October 14, 2019 Leave a comment

We’re all well aware of how Google uses self-manufactured loopholes in the DMCA safe harbor to enrich itself at the expense of artists, and run their loophole traps while appearing to “help” artists deal with the Google manufactured whackamole on YouTube with “tools” like Content ID.  (See Ellen Seidler’s teaching on this subject, Kerry Muzzey’s post about Content ID from an artist perspective, and Zoe Keating’s statements on the YouTube Content ID shakedown.)

What Google has also done is find someone out there who is willing to promote the corporate line on DMCA abuse, the Chief Loophole.  This person very likely gets paid a fortune in both cash and stock options to be the public face of Google’s destructive policies.  Or at least a fortune compared to the person’s former colleagues in the copyright category that Google is commoditizing and extracting value from with their loophole seeking behavior.

Google then spends money on a charm offensive directed at these former colleagues—but which falls short of providing the same wealth that they bestowed on the Chief Loophole.  They may have many reasons for keeping this class distinction in play, but the message is clear—if you truly go over to the dark side, beaucoup bucks await you.  Or it will seem like beaucoup bucks to you because Google’s loophole seeking beat you down so far it looks like up to you.

Yes, I’m describing Lyor Cohen at YouTube and Richard Gingras at Google’s Internet of Other People’s News.  Rather than embrace a rights-affirming and privacy-protecting philosophy, these two divisional Chief Loopholers shore up two of the principal sources of Google’s data wealth—news and music.

Lyor Cohen embarrassed himself to little effect as the face of YouTube’s assault on the European Copyright Directive.  Mr. Gingras is doing the same in what promises to be the opening act of a long offensive against the European Copyright Directive.

The Copyright Directive has been passed by a vote of the European Parliament and transposed into French law by a vote of the Parliament of France—which the multinational Big Tech bloc like Google lost abysmally by employing a bot strategy that seemed to be modeled on the tactics of the Internet Research Agency as discovered by several European newspapers including the London Times.

The crux of the issue for Mr. Gingras is that the Copyright Directive requires Google to pay a neighbouring rights royalty to newspapers whose work they use.  You may have heard the Google Alinsky-style semantical talking point of the “link tax”.

Google is now putting Mr. Gingras forward to be the Lyor-style face of its campaign against journalists and news organizations in France by throwing a new loophole in the face of the French government while at the same time stepping up its charm offensive by offering what certainly look like bribes to news organizations in Europe that play ball.

The loophole is Google’s use of its brutal market power to force newspapers to give them for free that which would otherwise attract essentially a statutory royalty.  Mr. Gingras is the face of this, a role for which we hope he’s being at least as well compensated as Lyor Cohen for doing what is effectively the same job—being the face of the charlatan.  The good news is that Google tipped their hand early in the transposition process so even France can go back and fix this competition law violation.

Thanks to the Google Transparency Project (full report here) we know that Mr. Gingras also brings a pot of gold to his version of the rainbow, either directly or indirectly, through spending on the ideation and flaring from the shill incubator:

The Google Transparency Project undertook the most comprehensive effort yet to collect all of Google’s payments to media organizations around the world in one place. The analysis included 16 different Google programs and related organizations and spanned more than a decade.

It revealed that Google and related entities have committed between $567 million and $569 million to support at least 1,157 media projects around the globe.  The analysis also identified another 170 projects supported by Google for which no funding information was publicly available, suggesting that the total amount the company has spent on media grants is likely far higher.

Google often boasts about its support for journalism, disclosing plans to spend over half a billion dollars on media initiatives since 2013. But Google isn’t always transparent about its spending, making it difficult to assess what the company is giving—and what it may be getting in return.

We haven’t seen Mr. Cohen waiving around this kind of cash aside from a few thousand euro we know about that was paid to some YouTube “creators” to produce anti-copyright directive materials.

Lyor really needs to do something about that disparity.  We’re way beyond YouTube “creator” studios now—user-generated never got hundreds of millions.  I wonder what Mr. Gingras makes by comparison to Mr. Cohen?

@kantrowitz: As Google Backlashes Have Risen And Fallen, So Have Its Grants To News Organizations via @artistrights

October 11, 2019 Comments off

[Editor Charlie sez: Google attacks journalists with one hand, doles out the charm offensive cash with the other.]

Over more than a decade, Google and foundations run by its leaders have given hundreds of millions of dollars to journalists and news organizations around the world, sponsoring drones in Nigeria and Kenya, and local news in the US. But according to a new report, these grants tend to be made in places where the company faces pressure from politicians, the public, and the press, raising questions about whether the tech giant is committed to social good or buying itself goodwill.

The report, written by researchers at the Campaign for Accountability’s Google Transparency Project, shows a spike in funding in Europe when Google was under pressure in the mid- to late-2010s, and a subsequent uptick in the US amid a backlash that’s led to a Department of Justice investigation and calls for its breakup.

Read the post on Buzzfeed

@artistrights: As Predicted, Google Refuses to Comply with EU Copyright Directive #ThisIsWhatMonopolyLooksLike

October 8, 2019 Comments off
richard_gingras_11-20-2011

Journalist enemy #1

The first time I met with the French Minister of Culture, we met at their offices at the historic Palais-Royal complex which is also home to the Comédie-Française, the oldest active theater group in the world (founded in 1630).  The French take their culture very seriously.  One would do well to remember that in your dealings with them.

But of course, Google doesn’t give a rip about France, culture, French culture or the French Minister of Culture.  And as predicted, Google are refusing to comply with the new European Copyright Directive as transposed into French law.  (Once passed by the European Parliament, the Directive must be implemented at the nation state level–Google has no time for the nation state, either.  The law goes into effect in France on October 24.)

Having suffered a spectacular loss in the European Parliament, the American multinational Internet company is now going to bring Silicon Valley justice to France.

Agence France-Presse reports:

Google said Wednesday it will not pay European media outlets for using their articles, pictures and videos in its searches in France, in a move that will undercut a new EU copyright law.

The tech giant said it would only display content in its search engine results and on Google News from media groups who had given their permission for it to be used for free.

The announcement, which will result in free content gaining higher visibility, comes after France became the first EU country to adopt the bloc’s wide-ranging copyright reform in July….Google had warned after the European Parliament vote that the change would “lead to legal uncertainty and will hurt Europe’s creative and digital economies.”

Of course what Google meant was that Google will do everything Google can to hurt Europe’s digital and creative communities because they’re pissed.  Make no mistake, it’s not Google’s compliance with the law that is producing harm in France, it is Google’s refusal to comply that does so.

French President Macron made the country’s position clear:

“A company, even a very large company, cannot get away with it when it decides to operate in France,” the French president insisted, during a visit to mark the centenary of the La Montagne newspaper in the city of Clermont-Ferrand in central France.

“We are going to start implementing the law,” he said.

According to Emmanuel Legrand’s excellent newsletter, Google is refusing to pay French news publishers for free-riding on their expensive news when delivered in Google’s massive monopoly on news aka search results:

French minister of culture Franck Riester was particularly incensed by Google’s decision. “I met with the head of Google News [Richard Gingras] this morning at the Ministry of Culture,” said Riester to journalists on the day Google made its decision public. “I sent him a very strong message about the need to build win-win partnerships with publishers and news agencies and journalists. The answer he gave me a few minutes later was stonewalling. This is unacceptable.”

Apparently this philistine from Silicon Valley not only has no respect for the law or the democratic process, he also has no respect for French culture.  Be clear on this–the French law was passed in the European Parliament over Google’s unprecedented astroturf lobbying campaign AND it was passed at the national parliament IN FRANCE.  The people were heard TWICE.

And if Mr. Gingras wasn’t insulting enough to Europeans and the French people from his cozy option-packed Silicon Valley enclave, he sure doesn’t know how to handle himself with the French minister of culture.  Here’s a hot tip–the Peter Pan thing is not a good look outside the Googleplex paedocracy.

But understand this–as I predicted, Google has no intention of complying with the Copyright Directive and will dump as much money as it takes in legal fees, PR campaigns, fake news and astroturf until it has exhausted all possible claims, trials, appeals, lobbying, the works.  Why?

Because THEY LOST AND THEY ARE PISSED.  What you are about to see play out is what happens when the richest and most powerful media company in commercial history strikes back.  What happens when the Silicon Valley company with control over the world’s newspapers says a people should know when they’re conquered.  No blow is too low.  And I keep saying, there’s only one thing they understand which is not fines.  You can’t get fines big enough to hurt them.

What gets their attention is anything that affects their behavior–and that means injunctions or prison.  They have no appreciation for anything we do to create music, movies, news, photographs, illustrations or any other work of authorship.  For them, it’s there for the taking.

In a prescient 2008 book review (entitled “Google the Destroyer“) of Nicholas Carr’s The Google Enigma, antitrust scholar Jim DeLong gives an elegant explanation of Google’s thuggish behavior:

Carr’s Google Enigma made a familiar business strategy point: companies that provide one component of a system love to commoditize the other components, the complements to their own products, because that leaves more of the value of the total stack available for the commoditizer….Carr noted that Google is unusual because of the large number of products and services that can be complements to the search function, including basic production of content and its distribution, along with anything else that can be used to gather eyeballs for advertising. Google’s incentives to reduce the costs of complements so as to harvest more eyeballs to view advertising are immense….This point is indeed true, and so is an additional point. In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….

Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – [news,] books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.

So, on the whole, Google can continue to do well even if leaves providers of is complements gasping like fish on a beach.

What you’re seeing in France is the onset of gasping.

Guest Post by @cagoldberglaw:  Scared as Hell: Section 230 Denies Access to Justice, Not Free Speech Protection

October 4, 2019 Comments off

By Carrie A. Goldberg

[We are honored to be able to post this article by one of the great lawyers of our time, Carrie Goldberg author of the new book Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and victim rights lawyer extraordinaire.  Carrie is going after Grindr for putting a product into commerce with a design defect that allows stalkers to use the app to assault users.  This argument is similar to the Ford Pinto’s exploding gas tank.  This post started as a Twitter thread, and we’re very pleased that Carrie agreed to let us post it as an article.  We should all be aware that in addition to the “value gap” of the DMCA safe harbor, Big Tech also has another safe harbor in Section 230 which I call the “values gap.”  You have to ask yourself, how do they sleep at night?]

For the past 2-1/2 years my firm has been in the fight of our life in the case Herrick vs. Grindr which involved owners and operators of the Grindr gay dating app refusing to assist our client, Matthew Herrick, when mobs of strangers were coming to his home to have sex with him.

Using Grindr’s geolocating and other technology, Herrick’s ex impersonated him and directed over 1200 men to him in person. Sometimes 23 a day. Herrick went to the police and got an order of protection. Nothing Herrick was able to do helped to stop this assault. 

And neither did Grindr. No, Grindr said in court they didn’t need to help Matthew because the Communications Decency Act Section 230 protected them from any legal responsibility for harms caused by their app.  The district judge agreed. We appealed it to a panel of judges sitting on the Second Circuit Court of Appeals.

The Second Circuit panel also said Grindr bore no responsibility to Matthew and that the earlier judge was right to throw the case out. We sought a rehearing en banc before all the judges on the Second Circuit trying to explain that we were not suing for words or communications from a user (for which Grindr would get Section 230 immunity) but rather, we were suing Grindr because its product was defective.  

Why?  Because Grindr designed their product without an internal system or other protective functionality to save users and the world at large from people abusing their product to impersonate, stalk, prey—easily foreseeable harms that a reasonable person could have predicted might happen before Grindr was put into commerce.

In August we submitted a cert petition for the Supreme Court of the United States to review the Second Circuit’s ruling and reverse it. We’ll know Oct. 1 if they will. In my practice, I see a lot of people like Matthew whose lives were destroyed because apps and social media companies ignored them.  People who are victims of revenge porn, sextortion, harassment, doxxing, horrible content coming up in search engines, all of which could be prevented by eliminating these design defects and putting people over profits.

These Big Tech companies have ZERO incentive to build safety precautions into their products because this 1996 law Section 230 has been interpreted by the courts to shield tech companies from just about any responsibility.  It means we as individuals CAN NOT sue them. A bunch of politicians, lobbyists and even some professors will say that Section 230 protects our speech. 

That is not true.

What Section 230 does is remove options for us as individuals when lives are destroyed through tech. Our courts are no longer an option for us to get justice.  I can’t overstate how extreme it is for there to be companies that are UNTOUCHABLE by our courts.

Our tort system is centuries old and it is the great equalizer enforced by the courts—an entire branch of government and integral to our entire concept of checks and balances. In almost every kind of harm, for a couple hundred bucks a single person can use the tort law and the courts to hold the most powerful person or company responsible if they caused us harm and we can stop them from further hurting us which is Matthew’s case.

The ramifications of Section 230 immunity don’t just impact those harmed. Section 230 harms us all as a society. We are entering an era of greater surveillance, Artificial Intelligence, self-driving cars, facial recognition technology.  Companies developing this have ZERO incentive to be thinking about how their products will be abused and exploited by bad actors. Why?  First and foremost because there is no pressure on them from the threat of litigation. 

So in addition to Matthew’s battle with the courts, my big discovery is that our politicians are now inserting language into our international trade agreements that echos Section 230.  

If they succeed and we are injured by some other country’s negligent tech product, app or social media company, our country is immunizing those companies too. Those international companies now can’t be sued by us either.

Look at Article 19.17 of NAFTA 2.0 nafta excerpt

The language, which is even MORE expansive than Section 230 in protecting tech companies was already included in NAFTA.

And we have some politicians working to include it in trade deals with Japan, India, and the EU.  This is INSANE. 

These politicians are taking away our rights against tech companies in our own country and others. This means they can all be as exploitive of users and privacy and human rights as they want. 

Everybody should be scared as hell. Section 230 is NOT about online speech. It is about access to justice.  No other industry is immune like this. These companies basically have sovereign immunity. The most powerful, wealthy, omniscient, omnipotent industry in the history of the world has as much or more protections from being sued as a government. 

We need to hold our politicians accountable. We need to expose those who are fighting against our individual rights and voting to exclude these companies from judicial systems around the world. Additionally, if our American companies don’t like changes we make to Section 230, they’ll just relocate to a country with whom we have a trade agreement.

Who in congress is THAT owned by Big Tech that they would betray the American people and strip them of all recourse for injuries that occur online?

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