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A Sad State of Affairs: Senator Wyden’s Secret Hold on CASE Act Comes to Light

October 29, 2019 Comments off

Karl Herchenroeder reports in Communications Daily that Oregon’s legacy senator Ron Wyden has placed a “hold” on the CASE Act (the legislation creating a copyright small claims court), which essentially stops it from moving forward.  (The CASE Act is the result of extensive study by the Copyright Office that addressed the many issues involving creating the copyright small claims process.)

We had heard this hold was in place long ago, and Rep. Zoe Lofgren (D-Google) had foreshadowed it during the House Judiciary Committee mark up of the CASE Act on September 16.

In response to Rep. Lofgren’s threat, Rep. Doug Collins said that it was a “sad state of affairs” when one Senator could block the will of hundreds of Members of the House of Representatives.  Rep. Collins knows of what he speaks–Wyden placed a hold on the Music Modernization Act until he got concessions on pre-72 recordings being foisted on old guys and dead cats by the Public Knowledge Google shillery.

pk-google-shills

In the case of MMA, the House passed their version of the bill unanimously.  But Wyden had little regard for his colleagues and had his hold ready to go to keep his buddies from his home town of Palo Alto all happy.

So what is a “hold”?  If you don’t know that term, don’t be surprised.  It’s a largely secret process that allows any one Senator to stop a bill from being passed unanimously (which is the way most bills pass in the Senate).  Strategic utilization of holds is sometimes called a “senate strategy” by someone (like Google, for example) who can’t stop legislation in the light of day so they kill it in the shadows of the Senate ally.

According to the Congressional Research Service (in extraordinarily kind language, no shock):

The Senate “hold” is an informal practice whereby Senators communicate to Senate leaders, often in the form of a letter, their policy views and scheduling preferences regarding measures and matters available for floor consideration. Unique to the upper chamber, holds can be understood as information-sharing devices predicated on the unanimous consent nature of Senate decision-making. Senators place holds to accomplish a variety of purposes—to receive notification of upcoming legislative proceedings, for instance, or to express objections to a particular proposal or executive nomination—but ultimately the decision to honor a hold request, and for how long, rests with the majority leader. Scheduling Senate business is the fundamental prerogative of the majority leader, and this responsibility is typically carried out in consultation with the minority leader.

The influence that holds exert in chamber deliberations is based primarily upon the significant parliamentary prerogatives individual Senators are afforded in the rules, procedures, and precedents of the chamber. More often than not, Senate leaders honor a hold request because not doing so could trigger a range of parliamentary responses from the holding Senator(s), such as a filibuster, that could expend significant amounts of scarce floor time. As such, efforts to regulate holds are inextricably linked with the chamber’s use of unanimous consent agreements to structure the process of calling up measures and matters for floor debate and amendment.

The problem for artists with this senate strategy is three-fold:  First, Wyden always puts a hold on any legislation that could help artists.  It is easy to predict because he always does it.  It’s a bit odd in this case because the CASE Act is designed to help artists across all copyright categories as well as users who wish to have potential defenses clarified (such as fair use).  After all, it was Senator Wyden who told us (while putting a hold on SOPA) that he opposed legislation that was a “step towards an Internet in which those with money and lawyers and access to power have a greater voice than those who don’t.”  I think that’s exactly what the CASE Act is designed to remedy, yet Wyden still places his secret hold for the benefit of the richest corporations in commercial history.

Another problem for artists is that getting a Senate hold released usually involves someone negotiating with Wyden.  This negotiation often takes a “meet him half way” style, without taking into account what is being given up.  Sort of like, he’s raised five points and is willing to give up three of them, can’t you give him the other two and meet him halfway?  But one of the other two involves slitting  your own throat, so  you say no.  Then you are deemed “unreasonable”.  That doesn’t work.

I think the biggest problem is that Wyden is once again going to demonstrate an extraordinary lack of regard for his “colleagues” in the House who voted for and passed the House version of the CASE Act with 410 for and 6 against.  But let’s get it straight–he doesn’t care.  If anything he is only encouraged by a lopsided House vote as giving him even greater leverage.  That’s a nice bill you got there, it would be a shame if something happened to it in the Senate.

Let’s all understand that neither Wyden nor his benefactor Google are going to change their spots.  No reason to be surprised this time or next time and so a realistic advocacy strategy should have a “Wyden strategy” built in from the beginning.   We know that Public Knowledge and Electronic Frontier Foundation will take point for Google against us, so let’s not be surprised when it happens next time.

Google Shill EFF

So Wyden needs to be told to put his objections in writing and come out from the shadows.  Evidently he is going to put forward an actual amendment so the public will finally get to see what all the fuss is about.

And he can explain to his colleagues in the House why his point of view is superior to theirs.  Because what goes around comes around.

 

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

Must Read Guest Post by @kerrymuzzey: YouTube’s Latest Deceptive Tactic

August 14, 2019 Comments off

[We’re thrilled to have a chance to publish an important Twitter thread by composer Kerry Muzzey that crystalizes a number of phenomena:  How Kerry caught YouTube using Content ID as a tool to extend the period of time that they can profit from infringement (or the “piracy profit window”), how draining it is for indies to chase YouTube (the “ennui of learned helplessness”), and how the cost of chasing YouTube reduces (or erases) any income from the video monopolist (the “Great Streaming Disappointment”). Kerry also provides a timely illustration of both why we need copyright small claims and one reason Google is sending in their proxies to fight it.  We appreciate Kerry giving us permission to post his thread and for being “here for the long haul”.]

I’m an indie guy.  I would love to just spend my time making more music, pitching, demo’ing for jobs. But like all indies, I have to make a choice—do I let YouTube and others just rip me off or do I try to stop it despite the burdens.

Here’s a new YouTube tactic that I first thought was a mistake when it happened recently, but they tried it again today, so now I think it’s pretty much just “the new stall tactic.” 

I recently found a bunch of unlicensed uses of my music on a Chinese broadcaster’s channel: these were TV shows where my tunes were used as underscore and then the series were put on YouTube and monetized. 

It took a couple years for Content ID to locate these uses and  during that time both YouTube and the broadcaster were able to co-monetize a couple million views of these shows. 

When I caught on to what was happening, I did my takedowns through the Content ID dashboard (meaning that YouTube itself located the uses and presented them to me in my Content ID dashboard) but they didn’t process my takedowns, which was weird.

I emailed YouTube Copyright (there are no names and no direct contacts at Copyright/Legal & you can’t get a name or direct contact person).  “YouTube Copyright” said they needed confirmation of the titles of my works because there was something wrong with my metadata with these particular titles in Content ID. 

Spoiler alert: there was nothing wrong with my metadata: these same works have been active just fine for 6.5 years now, and suddenly when I have claims against a massive China broadcaster YouTube finds there’s a problem with the accuracy of my titles & my metadata when they never have before?? 

Back to my claim—the Music Department at YouTube confirmed that my metadata was fine and accurate after all, and deferred to YouTube Copyright. I sent YT Copyright my copyright registrations for the works in question, reaffirmed that my metadata was fine and reaffirmed the accuracy of my claims: 24 hours later those infringing videos finally came down. 

I thought this was a one-off thing: a glitch. Until this morning when I got a batch of the same emails  from YouTube Copyright saying that there was a problem with my titles and metadata relating to the particular songs that I had struck on another Chinese broadcaster yesterday: videos that have a collective 4,000,000 heavily-monetized views on them from a different one  of China’s largest broadcasters.

But there’s nothing wrong with my metadata or my titles.  These works have been just fine since Feb 2013. So suddenly, 6 years later, there’s a problem with these songs…on the same day when I catch a huge TV network in China having used my music in their shows that were then put on YouTube and co-monetized by YouTube for 2.5 years to the tune of 4,000,000 views, with forced pre-roll ads, forced intermittent ad breaks, bannering, and video-adjacent page advertising, all on a channel in China that has 3,500,000 subscribers and more than 400,000,000 channel views on it. 

I just replied to all of their “problem w/title+metadata” emails with my copyright registrations attached and a re-affirmation of my claims and asked them to lay off the stall tactics and just process my takedowns. Which is NOT gonna go over well with this heavily-monetized channel in China and they’ll probably falsely counter-notify on everything because that’s what usually happens with China. 

But you know what? YouTube has a China problem. And they know it. And they look the other way because they can make a ton of money on those infringing videos. 

The asterisk here, and the “watch this space” moment is something I’ve long suspected and now feel like must be true: YouTube says that it has the same detection thresholds for music in Content ID worldwide, but I don’t believe it.

I think that my continuing discovery of my music in these ex-US programs, years after the fact and only after millions of monetized views have happened, is building up a body of proof towards that theory. 

And if that’s the case – YouTube has a problem.  What happens if YouTube tightens detection thresholds in big ad-sales territories like China with major broadcasters for the purpose of avoiding detection so as to increase ability to monetize what they know is content with 100% unlicensed music? Then YouTube is violating the DMCA and eventually they’re gonna get busted. 

So if you’re a tech person or journalist who’s interested in this sort of thing, here’s the question I would pose directly to YouTube the next time you talk to one of their execs: Does YouTube set different music detection thresholds based on territory, channel subscribership and degree of monetization on a channel? 

Get them on the record. Record their answer, write it down, put it in your article, publish it. Eventually someone has to hold their feet to the fire.  Step 1 is getting them to go on-the-record with their lies or their admission of gaming the system for the sake of ad revenue. 

I’m an indie guy and would love to just spend my time making more music. But until YouTube stops making it OK for giant corporations to steal my stuff and co-monetize it with YouTube itself, I’m stuck in this muck. 

Here for the long haul, – Kerry

Songwriters Guild President Rick Carnes testifies on the Need for Copyright Small Claims Court

June 18, 2018 Comments off

Strangely overlooked in the hoorah about the mechanical licensing collective is the CASE Act that would finally establish a small claims court for copyright infringement.  If Big Tech is going to give themselves another safe harbor in MMA for the mechanical licenses they failed miserably to obtain, the least that the Congress can do is pass the CASE Act to establish some remedy for copyright infringement that is available to all copyright owners.

Rick Carnes gives an excellent explanation in his testimony.

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