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Happy Holidays and David’s Copyright Office Comments — The Trichordist

December 29, 2019 Comments off

We wanted to wish all our readers happy holidays and thank you again for supporting the Trichordist! As some of you may know, the Copyright Office comment period for MLC regulations just closed. We will be posting David’s comments and selected other commenters here for some holiday reading starting tomorrow. We want to thank the […]

via Happy Holidays and David’s Copyright Office Comments — The Trichordist

Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

December 13, 2019 Comments off

When you negotiate with the 800 pound gorilla, the gorilla usually gets what it wants. Therefore exactly what it wants can be very important. In case you were wondering, from a trade policy perspective the 800 pound gorilla is the United States, the world’s largest economy and a largely open market, although increasingly less so […]

via Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

Repost: The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

December 4, 2019 Comments off

[Editor Charlie sez:  This is a post from 2/6/18 with an update from this week as noted.  MTP readers also might want to re-read this post about Spotify lawyer’s gratuitous attack on David Lowery.]

UPDATE: Senator Thom Tillis and Representatives Ben Cline, Martha Roby, Ted Deutch and Harley Rouda have written a letter to the American Law Institute asking what they think they’re doing with the fake “Restatement of Copyright” being written by Spotify’s lawyers and recipients of Big Tech largesse.  

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Now it’s the “Restatement of Copyright”, which is rapidly becoming a desk reference for the anti-artist crowd, led in this case by Professor Pamela Samuelson and Professor Christopher Sprigman.  Sprigman enjoyed a walk-on for the Spotify legal team in the Nashville Cases.  (Having achieved victory with a new safe harbor with the Music Modernization Act, Spotify may find that the Nashville cases are the last copyright infringement lawsuits they will ever defend.  So Sprigman’s role is significant in the anti-artist community.)

Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand.

The potential for astroturfing is why the controversy should be of importance to artists–those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.  If the companies doing the astroturfing or lobbying were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice although that’s changing.

And yet the scandal is still a teachable moment for being far more selective and open-eyed about what we spend our time on and lend our names to.

What is a “Restatement”?

As Professor Risch notes in a 2015 blog post on the Restatement of Copyright controversy, there is a difference between the restatement approach and a treatise (such as Nimmer on Copyright) and should not be confounded:

Restatements generally boil the law down to a single rule (or few) on a given topic. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule. Quite often, referral to the treatise is really to the footnotes, looking for a case citation in a particular circuit. Treatises might present different rules in different circuits.

The current scandal is over copyright, but it appears that the Restatement of Copyright is simply the current manifestation–similar controversies face ALI on its “Restatement of Liability Insurance Law” project as well as its “Restatement of the Law, Consumer Contracts.”  There may be others.

What is the “Restatement”?  Justice Scalia provides us with an explanation (Kansas v. Nebraska, 574 U.S. ____ (2015) (Scalia, J. concurring in part, dissenting in part):

I write separately to note that modern Restatements—such as the Restatement [at issue in the case at bar]—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be….And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Enter Professors Samuelson and Sprigman.  Revising the law is just their game.  And so here we are.  (MTP readers will remember Professor Sprigman represents Spotify and came up with another example of “revisionist” argumentation to claim on behalf of Spotify that mechanical streaming royalties don’t exist.  This sent some running scared to take the bait in the recent Music Modernization Act.  And of course who can forget when David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte no less.)

It All Starts with a Cigar:  Samuelson Makes the Pitch

Professor Samuelson (she of the Samuelson-Glushko law centers, Silicon Valley’s answer to the Confucius Institutes) seems to have been the prime mover in the effort for a “Restatement of Copyright” as near as I can determine from a 2013 letter she wrote to the then-director of ALI:

You may remember that during the American Law Institute (ALI) Young Scholars Conference on Patent and Copyright Law held at Georgetown University Law Center in February 2013, I suggested that ALI should undertake a copyright reform project. I am writing now to follow up on that suggestion with a more concrete proposal for a project that articulates principles that courts, lawyers, and scholars can use without the need for legislation and that would provide an analysis and framework that would aid additional reform efforts. Such a project would enable the ALI to bring reason and order to this important area of the law and help clarify and simplify it in accordance with the lnstitute’s mission.

Of course, American copyright law is a creature of statute as they say.  Professor Samuelson knows this.  So when she proposes a “copyright reform project” that avoids the “need for legislation”, she is heading straight into Justice Scalia’s sweet spot regarding the restatements.  Or jar of vinegar, depending on your view.  It appears that the Restatement of Copyright was planned on being a cut above a 3L’s course outline and a notch below lecture notes from the start.

So–and we will come back to this–the entire Restatement of Copyright enterprise was doomed from inception.  Thousands of work hours were spent on this misadventure that was a results oriented process designed–as Professor Samuelson clearly states–to create an antidemocratic work around to the statutory copyright law.  Talk about your smoke filled rooms, Valley-style.

It’s Not Just Us:  Problems with Astroturfing on Other Restatements

It is cold comfort that this astroturfing may well be a pattern at ALI.  Consider complaints about the Restatement of Liability Insurance Law that could easily be made of the Restatement of Copyright:

The Restatement of the Law, Liability Insurance is the ALI’s first-ever project on the topic of insurance law and the ALI’s first-ever industry-specific Restatement. The ALI leadership made a sound decision to postpone a final vote of approval of this Restatement at the 2017 Annual Meeting to allow time for additional work on the project. The project Reporters’ subsequent announcement of a “listening tour” to address outstanding concerns with the Restatement also signaled the prospect of meaningful improvements. Despite these assurances, minimal changes have been made to this Restatement….The failure of the Reporters to meaningfully address key sections of the Restatement that generated concern at the 2017 Annual Meeting makes the ALI leadership’s decision to postpone the project ring hollow and suggests a “broken promise” to address legitimate outstanding concerns. Numerous aspects of this Restatement have generated concern for both insurers and non-insurers. The two examples discussed in the prior general counsel letter continue to illustrate key concerns. The Restatement continues to endorse a “new version” of the basic rule that contract terms are interpreted according to their “plain meaning” which would allow extrinsic evidence to be considered even when a contract is clear. This provision would create uncertainty, invite unnecessary collateral litigation, and set an unsound precedent with respect to the interpretation of insurance policy terms, and possibly terms in other types of contracts.

Sound familiar?  The pattern raises a much, much larger question about what is going on at ALI and how ALI is funded.

But in the Copyright restatement, it was clear from the beginning that Professors Samuelson and Sprigman were involved.  Who did Samuelson recommend to “help” the ALI with the Restatement of Copyright in her 2013 letter to ALI?

The Reporter or Reporters, the Advisers, and the Institute should be able to engage and draw on significant law school resources. These include, to give just a few examples, the Berkeley Center for Law & Technology at Berkeley Law (BCLT, http://www.law.berkeley.edu/bclt.htm), of which I am a Director and which has hosted important copyright events such as a conference commemorating the 300th anniversary of the Statute of Anne, a conference on orphan works and mass digitization, and a conference on copyright.formalities; the Center for Internet and Society at Stanford Law School (http://cyberlaw.stanford.edu/), which concentrates on public policy issues such as copyright and fair use; and the Berkman Center for Internet & Society at Harvard (http://cyber.law.harvard.edu), which focuses on cyberspace issues through projects and initiatives such as the Digital Public Library of America.

Does it really need to be said yet again that CIS and Berkman both get funding from Google?  And that Professor Samuelson’s interests are as close to Google’s interests as one is to two or that Professor Sprigman conducts Google-sponsored research?  For example, statutory damages for copyright infringement has long been an attack point of Big Tech and we get a preview of where they want it to go in Pamela Samuelson’s “Copyright Principles Project”–essentially abolished–like the controversial Music Modernization Act, another example of fake “unity.”

The Teachable Moment:  Take A Pass in Future

The result of participating in a project where Sprigman controlled the pen was knowable simply based on who was involved.  So why would anyone bother with these people and their Restatement of Copyright?  I bet the insurance lawyers are asking themselves the same thing about the Restatement of Liability of Insurance Law.

Did anyone really need to know of Samuelson’s 2013 letter or Sprigman’s 2014 proposal to have guessed that these people were not interested in the ALI’s founding principles, were agenda-driven and were unlikely to consider the interests of professional creators that drive our industry?

This is why the idea that there can be unity between the anti-copyright forces and the creative community is a farce.  I don’t know how many times these efforts have to blow up for people to understand that it is not worth engaging if you see certain names involved because the effort is not genuine.

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  And as Rogers & Hart wrote, unrequited love’s a bore.

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”  Or you can buy Bitcoin futures from the Winklevoss Twins.

Save the Date: Alissa McCain to Receive Cindi Lazzari Artist Advocate Award from TESLAW

November 10, 2019 Comments off

Alissa McCain will receive the 2019 Cindi Lazzari Artist Advocate Award from the Texas Entertainment and Sports Law Section (TESLAW) of the State Bar of Texas on November 20 at the InterContinental Stephen F. Austin Hotel.  Alissa has twenty years of dedicated and groundbreaking artist advocacy work that has had a substantial impact on the lives of thousands of artists across Texas.

A highly experienced and well-respected community leader, Alissa has maintained a singular focus:  the success and advancement of artists.

Her work at Texas Accountants and Lawyers for the Arts over the last seven years has provided both pro bono legal counseling to artists statewide in Texas and events and programs in all major cities in Texas.

In addition, Alissa was not only a founding board member of Capitol View Arts and working board member every year since its inception, she worked tirelessly as a member of the Austin Arts Commission to assist in re-working the funding metrics used to provide City of Austin grant money to help the smaller arts organizations receive their fair share of those funds.

Other notable accomplishments include her service as a Commissioner on the Austin Arts Commission (appointed by Council Member Ora Houston), a consultant and contributing writer to the Austin Music Census, COO of the Austin Creative Alliance, and Director of Programs and Operations for the Austin Music Foundation.

Alissa’s career embodies the traditions of the Lazzari Award — supporting and educating artists by creating the kind of resources that allow creators to thrive.  TESLAW will present the award to Alissa on Wednesday, November 20, 2019 at 6:15 P.M. at the Stephen F. Austin Hotel in conjunction with the welcome event for the 29th Annual Entertainment Law Institute hosted in Austin by the State Bar of Texas.

Alissa will receive a plaque created by renowned Austin Artist Rejina Thomas.

About the Lazzari Award:  The Lazzari Artist Advocacy Award is named for the late Cindi Lazzari, a leading Texas attorney who went far beyond the call of duty in her efforts to protect the rights of artists in the music industry.   It is awarded by TESLAW.

In these challenging times for Texas musicians, the Section wants to recognize the exciting heroes and heroines of all the music communities across Texas who carry on the tradition of Cindi’s good works.

Previous recipients of the Lazzari Award include Juan Tejeda (musician, arts administrator and activist), Robin Shivers (artist manager and founder of the Health Alliance for Austin Musicians), Texas Accountants and Lawyers for the Arts, SIMS Foundation, Nikki Rowling (co-founder of Austin Music Foundation and author of the Austin Music Census), Casey Monahan (the first head of the Governor’s Music Office) and Margaret Moser (the journalist and long-time music editor for the Austin Chronicle).

About the Artist: Rejina Thomas (African American Contemporary Artist) Circa 1979- present. Creative, Rejina Thomas has mastered her trades of Custom Glass Engraving and fabrication with mixed media including metal, stone, and plastics over the last three decades. Her acclaimed artwork is held in public places and private collections around the world.  She did all the double acid etch Victorian stencil pattern Glass Art in the Texas State Capitol.  Miss Thomas is also well respected as an abstract painter and muralist. Reji Thomas lives and works in Austin, Texas and continues every day to look at life through Abstract Colored glasses in order to see the best in Humanity.  https://www.rejithomasart.com/

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

October 14, 2019 Comments off

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

The Coming Crisis: #SayNoToZoe on CASE Act Threats

September 17, 2019 Comments off

The new copyright small claims court legislation (The CASE Act) passed the House Judiciary Committee, but not without thuggery from Rep. Zoe Lofgren and the Internet Association. Chris Castle narrates the issues and proposes a solution for Big Tech’s “Senate strategy” that inevitably includes Senator Ron Wyden, the grifter from Oregon and proud father of Section 230 of the Communications Decency Act.  Lofgren’s threat comes about 8:27:00 on the YouTube video here.

Internet Association Statement on CASE Act

Michael Beckerman

Ron Wyden’s Teachable Moment: Should one Senator be allowed to stop 415 Members of Congress on the Pre-72 Fix

Did a Wyden Campaign Donor Fund Hedge Fund Operated Out of Senator’s Basement?

Are Data Centers The New Cornhusker Kickback and the Facebook Fakeout?

The Mother’s Milk of Algorithms: Google Expands Its Data Center Lobbying Footprint in Minnesota–Home to Senator Amy Klobuchar

ACLU takes a gratuitous swipe at the Copyright Office using a Google “study” to allege bias.  ACLU Statement on CASE Act

See: ACLU Gets $700,000 from Google Buzz Award musictechpolicy.com/2011/10/31/the-…r-the-company”/

ACLU Helps EFF With DMCA Delaying Tactics musictechpolicy.com/2010/07/07/aclu…laying-tactics/

ACLU Cribs from Google Lobbyists on Pro-Piracy Letter to Congress musictechpolicy.com/2016/05/04/why-…ns-from-google/

aclu cy pres

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