Music Technology Policy

[This post first appeared on Artist Rights Watch]

Remember when Mississippi Attorney General Jim Hood sent Google a subpoena demanding answers to what Google was doing to comply with Google’s non prosecution agreement over selling illegal drugs that cost $500,000,000 of the shareholders’ money for the executives bad behavior?  And it just happened that “North Korea” hacked Sony’s studio unit right about that time and disclosed internal emails between Hood and film industry folk helping Hood fashion his subpoena?

And remember how if Google had answered any of those questions affirmatively that they’d probably all have gone to jail? And remember how Google sued Hood to keep from answering any of them in a long drawn out case that Google ultimately lost but never did answer the subpoena?  Remember that?  (Right after Eric Schmidt visited North Korea with Bill Richardson?  Just sayin’…)

So it should come as no surprise that creators across the copyright categories are given pause when challenged by Google because Google has an intimidating history of wielding power against even U.S. Attorneys and state attorneys general.  Thomas Catan, Did DOJ Apologize to Google for U.S. Attorney’s Comments?  Wall St. Journal (April 10, 2012); Redacted Transcript from Oral Argument on Defendant’s Motion for Summary Judgment and Rulings of the Court, DeKalb County Pension Fund v. Google Inc., Civ. Act. 6993, Delaware Chancery Court (Mar. 30, 2012) at 12; Brief of Amici Curiae Attorneys General for the Commonwealths of Kentucky, Massachusetts, and Pennsylvania, the States of Arizona, Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wisconsin, and the District of Columbia, Google Inc. v. James Hood III, Attorney General of the State of Mississippi, in His Official Capacity, Case No.15-60205 (5^thCir. June 29, 2015).

And, of course, there’s this report from the Huffington Post back when Eric Schmidt testified at the U.S. Senate:

“SCHMIDT SAYS HE KNEW ABOUT GOOGLE STEERING FOLKS TO ILLEGAL CANADIAN DRUG SITES – News was actually made at [the] hearing. Ten gallon hat tip to Big John Cornyn, who asked Eric Schmidt about the $500 million settlement Google reached with the Justice Department over illegally advertising Canadian prescription drugs to Americans…. ‘Was it the result of oversight or inadvertence or were there some employees in the company that were doing this without your knowledge or…’ asked Cornyn (R-Texas). ‘Certainly not without my knowledge. Again, I have been advised — unfortunately, I’m not allowed to go into any of the details and I apologize, Senator, except to say that we’re very regretful and it was clearly a mistake’ [Schmidt said].”

Schmidt refused to answer questions under oath from Senator John Cornyn about the drug case in testimony in the Google Oversight hearing before the Senate Antitrust Subcommittee.  (Although later submitted carefully drafted responses in evidence for the record that contradicted his live testimony–no doubt after the lawyers figured out how to spin it.)

Now they’re doing it again.  According to the Washington Post, Texas Attorney General Ken Paxton is leading the charge of state attorneys general against Google’s advertising monopoly:

Ken Paxton is no fan of Google. The Lone Star state’s Republican attorney general says he rarely even uses the company’s widely popular search engine, opting instead for rival services, because he has “always been concerned about tracking.”

But Paxton these days is more than a mere sideline skeptic: As one of the country’s most powerful law-enforcement officials, he’s forging ahead with a landmark investigation into Google’s decades-long dominance of the web, armed with the help of 50 other attorneys general, a stable of savvy experts that includes Google’s past foes, and a feeling that Washington for too long has turned a blind eye to some of Silicon Valley’s most troubling practices.

For now, the investigation, which Paxton and his peers announced in September, focuses on online advertising, responding to complaints that Google puts consumers and competitors at a disadvantage by controlling the exchanges where ads are bought and some of the most popular websites where they’re sold. It could result in tough punishments, Paxton signaled, if investigators determine Google broke the law.

And now the Wall Street Journal reports that:

Google is resisting efforts to surrender emails, text messages and other documents sought by state investigators probing possible anticompetitive practices, according to records and interviews.

That should sound familiar to Hood-watchers.  It’s just possible that the real downside to Google from allowing General Hood to force the production of the many documents he requested in his subpoena was that those documents–like the 4,000,000 documents Google produced in the drugs grand jury that it jealously guarded from being disclosed in the shareholder case–might have provided fuel to the shareholder lawsuit against Google over the drugs.  So it’s also possible that the real downside to Google from General Paxton and his colleagues is a brand new shareholder suit.  What’s worse than going to jail?  Going to jail AND having a billion dollar shareholder suit AND having to recast your earnings while you watch your stock tank.

Don’t think that Google won’t engage in intimidation tactics–we found out that Google’s top lawyer was doing his (weak) Tony Soprano impression over potential amicus briefs in the Oracle case before the Supreme Court.  Really?  Really?

According to Oracle’s head of government affairs:

Before we turn to the more than 30 amicus briefs filed in support of Oracle at the Supreme Court, we are obligated to highlight the conduct of Google’s head of Global Affairs and Chief Legal Officer, Kent Walker. Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle’s behalf to persuade them to stay silent.  We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts.

The chickens are coming home to roost at the Googleplex and North Korea won’t save them this time.  The epitaph on Texas Ranger Captain Bill McDonald’s grave says “No man in the wrong can stand up against a fellow that’s in the right and keeps on a-comin’.”

You think on that, Googlers.  Some people believe it like the Sun rising in the East.