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Book Review: “Free Ride: How Digital Parasites Are Destroying the Culture Business and How the Culture Business Can Fight Back” by Robert Levine

March 22, 2012 Comments off

There is something comforting about hearing the Speaker of the House of Commons crying “Order, order” and having the MPs actually heed that instruction.  It’s particularly comforting in light of the tragic wilding that has been occurring in the ancient city of London, the font of British civility and civilization.  But the rioting in London is really the stuff of the Internet made flesh, a virtual tableau come to life.  So this is as good a time as any to mention Robert Levine’s book, Free Ride, currently the subject of the Two Minutes Hate on the Internet.  Yet the book is, as Bill Keller, former executive editor of the New York Times, put it recently, “a wonderfully clear-eyed account of this colossal struggle over the future of our cultural lives.”

Let the Wilding Rumpus Start

Levine has written a book that is a must read for all policy makers and indeed all professional creators.  Free Ride is an excellent survey of the current state of play online but also examines the cultural underpinnings of the principle excuses (and in some cases, affirmative defenses) developed by the execuprofs like Lessig and the Berkman Center.  Not surprisingly, the wilding rumpus has begun online which is what happens when you poke the sacred cows.

(“Execuprofs” are those who are ostensibly employed by academic institutions, but whose work is primarily directed at benefiting the corporations who contribute money to their schools or causes.  If these academics were actually executives at the corporations who benefit from their work, they would not be able to proselytize as credibly.  As long as they keep the corporate contributions hidden in plain sight–or hidden–they can continue in this netherworld pretty successfully.  But they are neither executives (no P/L responsiblity) nor professors (conflicts).)

Review of Policy Based Academic Studies

Levine’s book takes a very even-handed look at topics that are generally spun so hard by execuprofs from big institutions like Stanford and Harvard that it’s often hard for policy makers to know what reality is.  Even the U.S. Government Accountability Office has been taken in by some shadowy “experts” who the GAO refuses to name in support of its conclusion that the U.S. government must take into account the positive effects of crime in considering intellectual property policies.  Levine reviews some of the studies the GAO refers to in the GAO’s “study of studies” as well as some of the studies the GAO should have reviewed but failed to include (possibly at the direction of their shadowy “experts”), which should be illuminating to policy makers around the world.   For example, Levine considers the study by Felix Oberholzer-Gee which concluded that policy makers need not worry about online theft because musicians would work for “free beer” and “admiration” (if you know what I mean) as well as the extensive work of economist Stan Liebowitz which, among other things, mounted a very effective criticism of the “free beer” campaign.  (The GAO included the “free beer” study, but not the Liebowitz work–probably on the advice of the secret “experts”.)

For this reason alone Free Ride is an important book for policy makers to keep close by.

Worldwide Blanket Licensing

Levine takes a look at Jim Griffin’s various unworkable ideas about blanket licensing that MTP readers will recall we have discussed in numerous fora and have criticized.  (See my lecture at Osgoode Hall in Toronto, for example and our article in the ABA journal.)  Unfortunately, Levine doesn’t take into account the use of the global database idea as a “bright and shiny object” to further delay the enforcement of property rights online and create full employment for consultants for what will inevitably prove to be a sideshow.  But this is a small criticism of the book and should not be taken as a detraction from an otherwise highly effective and well researched presentation.

The Hands of the Google

One of the truly significant themes in the book is how Levine has laid out in one place all the different ways that Google influences public policy around the world.  This is done through his discussion of the execuprofs, groups like the EFF and Google’s massive contributions to Creative Commons, as well as a history of the YouTube case.  I mean the Viacom case against Google–sorry.  (Saying “the YouTube case” alone is like saying “my brother is in the Army, maybe you know him.”)

For busy policy makers who are trying to get their arms around the Google debacle through the sea of hundreds of Google lobbyists that must cost Google hundreds of millions worldwide, as well as Google’s high levels of government influence (especially in the UK), Levine provides a handy scorecard to keep track of the players.  This is not a black helicopter exercise–Levine has put in the Herculean effort to follow the money from Google to its many front groups.

The book’s review in the Financial Times is generally positive, but has this to say about Levine’s Google analysis (full disclosure, FT is my favorite business website and I tend to overquote them):

“On Google, Levine is correct that this most powerful of digital businesses will  need careful regulation in future. Yet if the company’s “war on copyright” is as  cunning as the author claims, it remains mysterious why it has, as yet, been so  unsuccessful. True, this week Britain’s government did approve some relatively  minor tweaks  to copyright laws. But, on both sides of the Atlantic, sensible attempts to  stop copyright term extension, which often runs long after an artist has died,  have largely failed – usually in the face of fierce lobbying from the very same  media companies Levine paints as victims.”

I actually disagree with the FT’s conclusion.  If Google had just made illegal scans of millions of books without the hundreds of lobbyists and the proverbial legion of lawyers, Google executives would probably be in the federal penitentiary.  So since they are not–yet–in that sense, Google’s campaign has been highly successful.

More importantly, the last sentence may belie the FT reviewer’s sympathies for the arguments of Lessig and many other execuprofs:  Copyright terms that extend “long after an artist has died” is the key point that Google and its followers, including its followers in the press, are most interested in because they wish to cut off the benefits of copyright to the hated “heirs”.  (See also Lessig, “The Starving Artist Canard“.)

The author advances an argument based on duration of the copyright term that will sound familiar to readers of Free Ride.  Lessig wants artists to accept a 14 year copyright term and give up the current life plus 70 as the copyright term (allowing an artist’s heirs to capture the benefit of either a discovery of the deceased artist after their death, or the benefit of being provided for like the journalist’s heirs are from his own estate).  While the reviewer apparently deigns to allow an artist the right to benefit from their creation during their life, when they die, that’s it.  A 100% estate tax.

The FT, of course, makes a silly argument.  But it’s silly for two reasons.  First, artists who want to enforce their rights will be very unlikely to accept a legislated cut from life plus 70 to 14 no matter how much Lessig wants to disenfranchise their heirs.  Even if Lessig manages to pull off the U.S. constitutional convention which would allow him to literally rewrite the copyright clause and finally seek his revenge on the U.S. Supreme Court that denied him in his humiliating defeat in Eldred, it is unlikely that the rest of the world would follow.  (See the eponymous Con-Con-Con effort at Harvard–where else–later this year where there is to be a gathering of grifters of all stripes–or in the case of the Poker Prof, suits.)

Second, the reality is that we currently have a 5 minute copyright.  That’s how long it takes for most works to be digitized and placed on p2p, Bit Torrent networks or cyberlockers for which Google delivers search results and on which Google sells advertising.  Google is bitterly fighting any government effort to cut off this ad revenue by enforcing intellectual property rights through the Protect IP Act (or its predecessor COICA, that Levine discusses in Free Ride).  And as long as this is true, any success from Lessig’s Con-Con-Con job would only serve to drive a further nail in the coffin that I would argue his bizarre faux-philosphy built.

Why Regulation Won’t “Break the Internet”

Given the problems of the 5 minute copyright, Levine’s most important conclusion is the following excellent advice to policy makers who actually want to bring balance to the online environment that preserves consumer choice, protects intellectual property rights and defends the human rights of artists:

“We can do better.

No one believes that piracy could be stopped by a law like [the Combating Online Infringements and Counterfeits Act, a precursor to the Protect IP Act] or an agreement between media companies and Internet service providers [such as the Copyright Alert System]….But regulations like these, whether private or public, would allow a working market to emerge.  Creators would sell, consumers would buy, and both would benefit….Artists would have the option of working with big companies or making their own way in an online economy that allowed them to do business, not just take donations.

In a functioning market, online media would get better, not just cheaper.  And this, in turn, would fuel the growth of more technology companies.  This wouldn’t break the Internet; it would help it live up to its potential.”

Hear, hear.

______________________
Buy the book here:

In the US, Book People and Amazon

Brussels and United Kingdom 

And read Levine’s Free Ride blog.

Andrew Orlowski’s review

The Resonance of Moral Design or Looking for Small Change in a House of Cards

The MTP Interview: An Inconvenient Truth: Songwriters Guild President Rick Carnes talks about the effect of piracy on American songwriters

March 10, 2012 5 comments
[Ed: This post originally appeared on MTP on January 30, 2009–how little has changed

American songwriters are one of our greatest sources of culture as well as important contributors to America’s “soft power“–our ability to win hearts and minds around the world by attraction and not by force. As Professor Joseph Nye would say “Lennon trumped Lenin.” (See Center for Strategic & International Studies Smart Powerfavored by the Obama Administration in the “change” direction for U.S. foreign policy.)But Internet analysts, self-appointed futurists as well as self-annointed consumer advocates almost always misunderstand the role of songwriters and the negative effects that rampant piracy has had on them. People who just write songs don’t sell t-shirts, don’t play shows, don’t have all the other income streams available to them that the EFFluviati point to as subsititute revenues for the cruel theft of labor value by companies like Kazaa, Morpheus, Limewire and the Pirate Bay.You hear a lot of talk about “follow on” artists or “remix culture”? Songwriters are the ones who are most often “followed upon” and “remixed out of culture”. And as noted in this interview, there are fewer and fewer original professional songwriters around every year.Rick Carnes is the President of the Songwriters Guild of America, and is a tireless advocate for American songwriters on Captiol Hill. He lives in Nashville, the songwriting capitol of the world.

[Interview for MTP by Chris Castle]

MTP: There is a popular image of a songwriter sitting in front of a piano in a little cubicle at the Brill Building or Music Row and grinding out the hits.What kind of business relationships do songwriters have today?

Carnes: Most songwriters today are independent operators. Music piracy was the death knell for the day of music publishers having staffs of songwriters. The Brill Building is still there but the last time I visited it was to talk to the folks at Saturday Night Live. There wasn’t a songwriter in sight. Business relationships now are with lawyers and managers. They put together the deals and venture capitalists put up the money. The deals are done to get
the next big recording artist signed to a label and then everyone gets a piece of the action in some 360 deal.Used to be you found a great singer then you looked for a great song.

Now you find a great deal maker then look for someone with deep pockets.

MTP: Are there more or fewer songwriters working today than there were 10 years ago?If there’s a change, what forces in the business are causing that change?

Carnes: The days of music publishers who have large staffs of professional songwriters seem to be over. Music publishers used to have both established writers and their ‘farm team’ of new talent. Now they have neither. The people they sign today (if any at all) are either working recording artists or ‘future’ recording artists. The days of the ‘stand alone’ songwriter appear to be over.

There are multiple causes for this situation but most of the damage was wrought by two specific problems. The first being that the internet has turned into a Cyber-Somalia.

Professional songwriters used to live on advances from their music publisher. These advances were to be recouped from record sales only (“mechanicals” is the industry term for these revenues). Music piracy killed record sales so that made it impossible for music publishers to recoup the advances they paid songwriters so they stopped signing writers and let go of the ones they had when their contracts ran out.For example, the music publisher I was writing for in 1998 had twelve great songwriters on staff. By 2008 they had no songwriters on staff. For the math impaired that is a reduction of 100%.

The second major problem was/is a practice by the record labels of putting “controlled composition” clauses in their artists recording contracts. For the non-lawyers reading this,
these clauses are a very complicated system established by the record labels to insure that they don’t have to pay the full statutory rate imposed by the US Copyright office for the songs recorded by the artist that the artist either writes or “controls”. [Editor’s note: this includes songs co-written with a producer or other writer who is not the artist or a member of a group artist. It started right about the time that another SGA member, Hoyt Axton, helped to spearhead indexing the mechanical royalty rate to the Consumer Price Index in 1976.]

Once an artist signs a recording contract containing one of these clauses (and since all the major labels have them they have little choice) the [beginning] artist will receive, at most, 75% of the statutory rate for recording any song they write or co-write. It is the co-writing that causes problems for the professional songwriters. The record labels, because they can pay a lesser rate for any song written or co-written by the recording artist, insist that the artists now write or co-write all their songs. This has lead to a tremendous drop in the number of professional songwriters and, in most cases, the quality of the songs. The public is constantly complaining about having to pay US$12 to US$18 dollars for an album with only one or two goods songs on it. You can trace the cause of this problem back to the early eighties when all the record labels began implementing control compositions clauses in their contracts. Since then the norm on an album is one or two professionally written (or co-written) songs and a lot of filler songs that the artist wrotein order to satisfy the record label’s demand for cheap music.

MTP: Tell me about what you do at the Songwriters Guild and the untold riches you are being paid for the job?

Carnes: I am President of the Songwriters Guild of America and if I am supposed to be getting “untold riches” someone forgot to tell me!The mission statement of the SGA is two words “Protect Songwriters”. That lack of specificity has forced me to show up in all kinds of places I never thought I would be! I was the lead witness in the latest Copyright Rate Board hearing. I have testified on behalf of songwriters in both the Senate and the House of Representatives on many issues concerning song writers rights, and I have spent the last ten years flying all over the country talking to people about the harm that is being done to American music by the widespread theft of songs on the internet by a mob of anonymous looters.

MTP: What is the most common question you get from your membership?

Carnes: How do I get a song cut by Beyonce?

MTP: What are your top three legislative issues for this Congress?

Carnes: The performance right in an Audio Visual download;

Controlled Compositions;

Fighting Music Piracy (as always)

(If I could add a fourth it would be a ‘bail-out’ for all the songwriters who lost their jobsbecause their intellectual property was not protected by the US Government on the Iternet)

MTP: Who are you listening to at the moment, and what new music interests you the most?

Carnes: Luca Mundaca. A fabulous new Brazilian jazz artist who plays great guitar, sings like an angel, and writes amazing melodies. I have no idea what she is singing about since I don’t speak Portuguese. But the songs knock me out anyway. That’s what I call great songwriting.

MTP: Where do you think that songwriters are going to end up in the next 5-10 years?Meaning what role do you think they have in the music business?

Carnes:Songwriters were the number one loser of income in the US economy in 2004 (Music piracy taking its toll). So we are used to tough times. I hope to see a bottom form somewhere in the steep drop in record sales and a rebound sometime in the next ten years. If that doesn’t happen I guess we will all end up sleeping in the subway!

The real role of songwriters in the music business is to add meaning to people’s lives.

That is not a job you want to leave to amateurs. It is a job for professionals.

MTP: Do you find that members of Congress do not have a clear idea about the role of songwriters as a general rule?

Carnes: I think they understand the role of songwriters better than the typical major record label executive. At least the Members I have talked to understand that the Constitution includes provisions for royalties for creators because without them the quality of life suffers. While it is true that the Copyright laws are very difficult to understand in great detail, the general principle that creators have a right to control the copying of their work is understood by all except the most radical of the ‘Free Culture’ advocates. There are a couple of people on the Hill who think that ‘Fair Use’ extends to sharing a copyrighted song with the entire world for free.

MTP: Who do you view as the greatest commercial opponents of songwriters?

Carnes: The Major record labels are our biggest ‘commercial’ opponents. They have wreaked havoc on the songwriting community by forcing controlled composition clauses into their artist recording contracts. After them it would be all those companies out there that want to use our songs to sell something else (like advertising) and not pay us a dime. Anytime you go on a website that is offering free music they have no license to use and selling your visits to that site to advertisers you are looking at one of the ‘greatest commercial opponent of songwriters’. I wish I could offer you a list but it would be too long to type in one sitting. Besides,didn’t Richard Nixon get in trouble for having an Enemies List?

I hear a lot of talk from Google and the big online companies about their “partnerships” with the “music industry”.I find more often than not when you drill down on what that means is deals with major labels.

MTP: Do you ever have any of these companies come to you to ask you what you think or try to make a deal with your members?

Carnes: Yes we have had companies come to us about deals. But that is because our catalog administration program has some hit songs that you have to have in order to compete
in the market. So in terms of whether these services are ‘reaching out’ to smaller labels
and music publishers the SGA is not a good gauge.

MTP: If you had to rank the top five online companies as the “best” meaning most friendly to songwriters, who would they be and why?

Carnes: Songwritersguild.com would be number one *grin* (a shout out here to our webmaster)

After that I am not a fan of any particular online company since I have had to spend the last three years of my life fighting them in rate court to try to get a decent interactive streaming rate. (Which we finally won!) But I am a subscriber to Rhapsody and I check out MySpace a lot since I have so many friends that are artists and in bands. MySpace, at least, has exposed a lot of indie music.

MTP: And the five “worst”?

Carnes: Whoever the top 5 p2p sites are today. And just for the record, I am not a fan of Google because I believe their search algorithm reduces all art to the lowest common denominator. That’s a real culture-killer if I ever saw one.

MTP: Anti-copyright organizations often try to tell musicians and the music industry that they have their eye on the wrong ball, that they can offset the decline in CD sales by selling another T-shirt to fans who it would be easy to find because they were all on email.

Carnes: Songwriters don’t sell T-shirts. We’re too ugly and we dress funny. Songwriter fan clubs meet in phone booths so the email lists are too small to monetize effectively.

But seriously folks, songwriters don’t sell concert tickets, or ancillary merchandise. We make our money on record sales and radio airplay. Or, we USED to make our money on record sales. Illegal downloading ended that. Now we are looking for new jobs.

The most infuriating thing about being lectured to by anti-copyright groups about how songwriters need to get a new ‘business plan’ is who gave them the right to tell us how to make a living? Who are they to say we shouldn’t fight to defend our rights? In truth, I find their suggestions are unbelievably arrogant and self-serving.

MTP: Do you find that there are a lot of self-appointed music industry experts who have never sold a record?I’m thinking of a specific event at which I was sneered at by Eben Moglun at Future of Music Policy Summit II in 2001 for questioning the affect of piracy on independent artists and I was told more or less that I was a primitive thinker because I didn’t see that declines in CD sales would be made up by merch.I’m also thinking of a panel I was on with Corynne McSherry of the EFF at which she wedged the audience by asking the crowd if “Silicon Valley” was going to let “Hollywood” push it around. Thankfully the “Silicon Valley” fans and the “Hollywood” fans hadn’t been tailgaiting or painting themselves funny colors. [Editor’s note: And if “Silicon Valley” wouldn’t listen to “Hollywood,” would “they” listen to musicians in Bollywood, Miami, Seattle, Austin, New Orleans, London, Harlem, in no particular order. Do you have similar experiences?

Carnes: There do seem to be a lot of people trying to make the rules who never played the game.

I have had some interesting back and forth on some panels but I must say that the most interesting panel I have ever witnessed was at the Leadership Music Digital Summit a couple of years back. The subject was how the music biz could ‘compete with free’.

For some reason there was an actual economist on the panel who was totally silent for the entire panel until the very last when he spoke up and said that anyone who thinks there is a business model that competes with free is out of his mind. In any Capitalist society consumers are taught from cradle to grave to always get the best ‘deal’ they can, and NO DEAL beats free. I mention his comment only because it was the first time that I ever saw these ‘self-appointed music industry experts’ ever called on any of their malarkey by a real expert and the discussion was concluded in one sentence.

Castle: If you had to pick the most important issue of 2009 for songwriters, could you and if you could, what would it be?

Carnes: Same as every year for the last 10….Illegal downloading.If I may quote a real economist, “Nothing competes with free”.

Add the question I missed:Is Rock and Roll dead?

Yes, Rock and Roll is dead. The genre’ was played out by the mid-seventies but it has survived in a zombie-like fashion for thirty years past its expiration date.

Part of the charm of Rock music is that practically anyone can play it.It can be written by amateurs and performed by teenagers without those difficult and expensive years of training that other forms of music require. Unfortunately that also makes it the perfect ‘corporate’ music. You can get kids who don’t need money to support families or pay house notes to sign contracts that no thinking adult would sign. This allows a record label to exploit ‘this year’s model’ for all they are worth until they reach the end of their contract and want to renegotiate for decent terms. Then they simply replace them with another teen idol. The simplicity of the music has allowed the major labels to treat recording artists like ‘temp workers’.

Hopefully with the decline and fall of the major label system we might finally get to see where the music really wants to go once it is released from this corporate death-grip.

[Editors note: There’s still great music being made every day, some of it is listed in our “New Music Weekend” recommendations posted (pretty much) every Friday and reposted the following Monday on MTP and on Twitter.]

Bunk about “Fair Use Industries” from the CCIA: What do Derek Jeter, Tom Adams and Ari Emanuel have in common?

March 3, 2012 Comments off

Now that the WIPO and OAS report on the economic contributions of copyright has been released, the Computer & Communications Industry Association (of which Google is a dominant member) is recirculating one of those greenhouse studies that comes with more than the usual ration of gas: “Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use.”  This is not to say that “fair use” (a defense to copyright infringement in the US) does not have its place in the infringers toolbox, but if the recent “Hargreaves Review” debacle is any guide, destroying copyright in order to save it is going to find barren ground–particularly when the “evidence” is founded on, well, tripe.

The CCIA’s piece of work was heralded by Rep. Polis (and we know a lot more about whose side he is on now than we did at the time the report was released) in a special press conference in which he emphasized the jobs created by the vast “fair use industries.”

Meaning Google mostly (which is why it’s often called the “Google Review“).  It didn’t wash in the UK with either the press or the Commons, even though the Joe Camel of Search actually hired the wife of one of the Prime Minister’s top aides to sell it to Hargreaves and stacked the Hargreaves Review task force with people like James Boyle of Creative Commons who loathes copyright.  Remember–Google gave millions to Creative Commons.

The way that the CCIA gets to this large number of jobs represented by the “fair use industries” is simply by counting all of the industries that most of its members are—to be kind—borrowing from.  Their methodology is based on the analysis of a leading anti-copyright academic, not the economist whose name is on the report.

If you think that the movie, television, recording, book and newspaper businesses think that they are in the “fair use” business, think again.  But even if you did believe that these companies receive some small benefit from the fair use defense, wouldn’t you think that the benefit to the U.S. economy from the fair use defense should be limited to the economic benefit from fair use?

And wouldn’t that require the companies themselves participating in the study to accurately allocate their revenues from works that had nothing to do with fair use?  Not to mention the fact that the fair use defense is largely a U.S. concept, so a further adjustment—downward–should be made for earnings outside of the U.S.?

And is it not just a little disingenuous to say that Viacom benefits the Joe Camel of Search based on Google’s fair use defense against Viacom? Or that any book publisher benefits Google on fair use grounds given Google’s spectacular loss in the Google Books case?

We will first take a look at the double counting fallacy imbedded in the flawed CCIA study and then bizarre notion that the management of CCIA’s largely non-union members whose employees are forced to give up their IP rights as a condition of their employment seeks to challenge the judgment of the legitimate union members.

The CCIA Study

According to The Hill, “[t]he study, which was commissioned by the Computer & Communications Industry Association, found that industries that depend on “fair use” exceptions to copyright laws make up one-sixth of the U.S. economy and employ one in eight American workers.”

Does that sound like bunk stuff to you?  It does to me.  What exactly is a “fair use industry” and does that not sound at least intuitively counter to the purpose of the fair use defense to copyright infringement?  (See 17 USC Sec. 107(4): “the effect of the use upon the potential market for or value of the copyrighted work”.)

The Hill also reports that CCIA asserts that “[f]air use industries weathered the recession better than many other sectors of the economy, according to the report.”  I wonder what other explanation there might be for that assertion aside from the one they want you to draw—which is that fair use leads to profit.   Actually–Google’s definition of fair use leads to one of the biggest income transfers of all time (see Ellen Seidler’s description of that income transfer at Popup Pirates).  I don’t mean the drug ads sold by the Joe Camel of Search, I mean the cyberlocker ads.

I ran into one of the senior CCIA folks at a public policy conference a few years ago and was struck by how little he actually knew about how the music and movie businesses actually work, particularly from a rights perspective.  For example, he had no understanding at all of the independent label and artist part of our business, and did not understand that the RIAA did not speak for songwriters and that the RIAA could not license for its members.  Very basic misunderstandings.  So it is not surprising that they got it wrong on this study—and since it’s a study they commissioned to advance their agenda, you have to assume that they got it wrong intentionally.

So why did they release this “study”?  The Hill reports that “[Rep.] Polis compared some stringent proposals to combat copyright infringement to fighting piracy at sea by shutting down seaports [that would be the rogue sites legislation Polis lead the opposition on]…. Ed Black, president and CEO of the CCIA, said in statement, ‘Too often we hear about the cost of piracy without also considering the cost to legitimate sectors of the U.S. economy of poorly targeted copyright enforcement measures like the pending Protect IP Act.’”

Ah, yes.  Of course.  This is all about CCIA member Google’s opposition to the Protect IP Act—which will have an extraordinary negative effect on the earnings of the Joe Camel of Search–Google could have really used that $500,000,000 they paid for a drugs fine to bolster their fourth quarter 2011 earnings.  (Because, to quote Rep. Debbie Wasserman-Schultz, Google is engaged in “aiding and abetting theft.”)

Or alternatively, the ever-popular theory of the “positive effects of crime” which the GAO has taken such a fancy to.

So what they want you to believe is that the members of the AFL-CIO, the Teamsters, the American Federation of Musicians, the American Federation of Television and Radio Artists, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees, the Screen Actors Guild, Nashville Songwriters Association International and the Songwriters Guild of America do not speak for American workers.  Because they are…you know…union thugs according to Net Coalition and the EFF.

No, no.  You know who speaks for American workers?  Yep, The Man 2.0.  The CCIA speaks for American workers.  And this authoritative voice is because of their largely non-union member companies whose workers are required to give up any ownership interest in their work product as a condition of their employment in the “fair use” industry?

The Double Counting Double Cross

So who is in this “fair use industry”?  The Hill tells us that “[i]ndustries that rely on fair use exceptions include the news media and search engines such as Google.”

Ah yes.   Google, of course.  We expected to see Joe Camel get mentioned.  But who else?

In order to know that, one has to drill down a bit into the tables and appendices of the study.  The study breaks down the “fair use industries” into core and non-core businesses and each are listed in the tables.

I knew there was skullduggery afoot when I saw this sentence: “Portions of this report were prepared with the assistance of Professor Peter Jaszi of American University Washington College of Law.” (Buried in the fine print on page 2.)

Now who is Professor Jaszi?  He is, among other things, the Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University.  (The mothership Glushko-Samuelson clinic at Berkeley just received $200,000 from Google in the controversial class action settlement of the Google Buzz litigation.   See “Google Hands Millions to ‘Independent’ Watchdogs“.)

Professor Jaszi’s unit at the Glushko-Samuelson clinic was reportedly unusually influential in the drafting of the 2006 orphan works report by the U.S. Copyright Office (and in implementing legislation that was itself heavily influenced by Google).  That report led to several years of failed legislative attempts to impose an orphan works regime that was almost unilaterally opposed by artists, particularly visual artists.  And just one other implication of Google involvement: during the seleciton of cy pres beneficiaries in the Google Buzz case, the Glushko-Sameulson group was referred to by EPIC in court filings as one of the proposed cy pres recipients who were either consultants or lobbyists for Google.  To which none of the recipients objected when given the chance to do so.

This passage from the APA website about the (now) failed 2007 orphan works legislation sums it up:

“Copyright, [Jaszi] wrote, is rooted in outdated concepts of ‘possessive individualism.’ The ‘romantic myth of authorship,’ he argued, is a vestige of the 18th and 19th centuries ‘in which entrepreneurial publishers…[and] entrepreneurial writers…played out their shared conviction that the “individual [is] essentially the proprietor of his own person or capacities — and thus of whatever can be made of them.’

Professor Jaszi has criticized the US for joining the international Berne Copyright Convention, calling it ‘an international agreement grounded in thoroughly Romantic assumptions about creativity.’ And he noted with disapproval:

‘The first Act of this preeminent ‘authors’ rights’ treaty in 1886 represented the culmination of a process which got underway in the mid-nineteenth-century with Victor Hugo’s vigorous campaign for the rights of European writers and artists. Other famous ‘authors’ rallied to the cause: Gerhard Joseph suggests that the manic energy with which Charles Dickens championed international copyright stemmed from the novelist’s private insecurities about his own ‘originality.’”*” (Emphasis mine)

So naturally, Professor Jaszi would be on the short list to work on the CCIA study: “Data for the key economic measures listed below—revenue, value added, payroll and employment—are segregated into core and non-core industries according to the structure developed by Professor Peter Jaszi, as described above and detailed in Appendix I.” (Study, at p. 19)

Naturally, all of the economists and business experts lack the special insights of an anti-copyright campaigner when it comes to providing the econometric basis for the study’s conclusions.

So let’s look at these “core” and “non-core” industries in Appendix I, which has a handy list of industry sectors and a cross-reference to the section of the Copyright Act—the U.S. Copyright Act—that qualifies them as a member of the “fair use industry.”

The first few listings are mostly companies that either make things that copy or that make the things that go into the things that copy.  Then we get to the first of the odd inclusions as a “core” sector of the “fair use industries”: Newspaper Publishers.  The Copyright Act code sections they rely on?  “102(a) (noncopyrightability of facts); 102(b) (idea/expression dichotomy); 107 (fair
use: criticism, comment, news reporting); 105 (no copyright in U.S. government works).”

I find this reference to newspapers peculiar.  Aside from the fact that many newspapers have sued to keep Google’s paws off of their copyrights, the noncopyrightability of facts and disclaimed copyright in U.S. government works has nothing to do with fair use.  Remember, fair use is a defense to copyright infringement, so if there’s no copyright, there’s no copyright infringement, so no defense to copyright infringement, so no fair use.  So why is that category even there?

Reliance on the idea/expression dichotomy is also not about fair use, it’s about whether an idea is subject to copyright protection (usually not until fixed in a tangible medium of expression).  So why is that in there at all?

So that’s just weird.  But it gets weirder still.

CCIA now includes in the mighty “fair use industries” all software publishers—be sure to let Tom Adams at Rosetta Stone know about that one.

And then we have the motion picture and video industries, the sound recording industries, bookstores, cable television networks (like Comedy Central maybe?), radio and television broadcasting, live event promoters, agents and managers.

Be sure to let Ari Emanuel know that he’s in a fair use industry.

Note: Songwriters and music publishers are not included at all.  Like I said, these guys have a fundamental lack of understanding about the industry they are trying to screw over.

My personal favorite is “independent artists, writers and performers” who are “independent (i.e., freelance) individuals primarily engaged in performing in artistic productions, in creating artistic and cultural works or productions,  or in providing technical expertise necessary for these productions. This industry also includes athletes and other celebrities exclusively engaged in  endorsing products and making speeches or public appearances for which they receive a fee.”

Derek Jeter—you’re in a fair use industry, brother.  Be sure to alert the MLB licensing folks.

So as you can see, CCIA is including in its “fair use industries” list the industries that its members cannibalize for supposedly fair use purposes.

What that means is that if you start with industries that should not be included at all and add to those industries Google and  similar companies that steal from us, you should not be surprised to learn that the “fair use industries” will always look like a bigger group than they really are.

And then you can get someone to stand up and talk about how important jobs are and that the Protect IP Act will kill jobs not protect jobs.

And how the non-union management of CCIA companies can tell everyone how the members of AFL-CIO, the Teamsters, the American Federation of Musicians, the American Federation of Television and Radio Artists, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees, the Screen Actors Guild, Nashville Songwriters Association International and the Songwriters Guild of America–you know, union thugs–do not speak for American workers.

It’s all just bunk–but here’s the fun part.  You know you’re winning when the other side starts lying.  Now if the press would just do a little fact checking….

The Unelected: Lessig taking shots at artists again

February 8, 2012 Comments off

Once again, Lessig is trying to position himself both as a friend of artists and of copyright.  He is a friend of neither.

This came up in a recent speech in which Lessig takes a swipe at “artist representatives” as distinguished from “artists” who engage in a “fight” (his word) over those artists’ copyright (in the above video at 3:15 or so).  If you were unaware of Lessig’s contempt for CISAC and organizations like ASCAP, you would probably pass right over this reference.  But it is a telling one, and it would be well for artists and their representatives to understand in context, especially artist representatives like WIPO and the U.S. Trade Representative.

Let’s be clear about why artist representatives often take the heat for the people they work for–Metallica, Gene Simmons, Helienne Lindvall, Lily Allen, Mark Helprin, and most recently Suzanne Vega and Jay Maisel.  Or less famously, how were these artists treated by Grokster, Morpheus and Limewire to name just three? (Each of the three had some fairly direct connection to Lessig through the Electronic Frontier Foundation.)

How were these artists treated by the mob?  Was this kind of treatment designed to make more artists come forward and express their views, or was this wilding and the failed attempts of these “innovators” (aka “defendants”) in litigation more aptly a technique of those wishing to suppress speech?

Also consider the the bizarre examples of Germans residents having their houses egged when they opted out of German Street View and Jay Maisel, who had his home defaced by unknown bad guys when he asserted his rights against Andy Baio of the shadowy Expert Labs.

Is it any wonder that people like Lessig who come from a non-union background would be immediately critical of artists who prefer to have the protection of their elected union officials advocating their views to Congress, or elected songwriter representatives taking the public heat for criticizing Lessig and his Creative Commons?  Lessig couldn’t get elected dogcatcher, and he knows it–that’s why he dropped out of the election for a Congressional seat in–San Mateo.  (Which is right next door to…Moffett Field, home base to the jets of a certain rich Silicon Valley company, not mentioning any names but the initials are Google.)  Trust me: I really, really, really, really wish he would run for public office.  I was as disappointed as anyone that he dropped out–for different reasons than some, but disappointed nonetheless.

As Songwriters Guild of America President Rick Carnes (the elected leader of the SGA) puts it so well in the Huffington Post:

“One of the most frequently proposed ways of giving away your song is to license [actually quitclaim] the use of your song under a Creative Commons license. But let us examine the Creative Commons [Corporation] a little more closely…

Lawrence Lessig, the lawyer who suffered a bitter loss at the Supreme Court on behalf of Eric Eldred in arguing that the Sonny Bono Copyright Term Extension Act was unlawful, has made a career out of opposing the scope and length of copyright.  Exhibit A–Creative Commons [Corporation], is the organization he co-founded with…you guessed it, Eric Eldred, after losing [Eldred’s case] in the Supreme Court.

This is certainly their right, but realize that Creative Commons [Corporation] was born out of a defeated attempt to impose upon all creators Lessig’s and Eldred’s radical ideas about extreme limitations on copyright  which were resoundingly rejected 7-2 by the U.S. Supreme Court [for ‘stupid’ reasons according to Lessig].  So while Lessig denies that he is “anti-copyright”, it seems to me that he equivocates on what the definition of copyright is.  He’s not opposed to copyright, no, no.  He just wants the copyright term to be 14 years instead of life plus 70.  Sorry–when it’s my life that’s being added to the 70, I find someone who wants to cut the term of my copyright to 14 years to be advocating such a radical change that I consider him to be against copyright as the world defines it, therefore–anti-copyright.

It is this attempt to snatch victory from the jaws of defeat that spawned the Creative Commons license [actually a quitclaim].  The purpose of the license, I think fairly stated, is to promote the unpaid licensing of works of copyright.  Fine so far.  If a creator wants to give away their work, that is certainly their right.

But now Lessig tells us about the “hybrid economy” in his latest book “Remix”.  And what might the “hybrid economy” be?  “Where commercial entities leverage value from sharing economies.” Lessig cites Flickr, as an example to define this “hybrid economy.”   So doesn’t this mean that people who give their copyrights away as part of Lessig’s ‘hybrid economy’–through “sharing licenses”– can have their works exploited to profit commercial entities without compensation?  Maybe some of those same “commercial entities” that give millions of dollars to Creative Commons Corporation? Is that what is really going on here? After all, When Flickr was sold for 25 million dollars to Yahoo in 2005 how much of that money was shared with the people who ‘shared’ their content with Flickr?

The way I read the history, Creative Commons [Corporation] wasn’t founded by a bunch of songwriters getting together saying what we really need is a better way to give away our rights.  It was founded by Lessig following the Supreme Court’s rejection of his ideas about limiting copyright for everyone else.  Lessig proudly proclaims how he supported funding the Grokster litigation in favor of file share-style looting of music–another argument also unanimously rejected by the Supreme Court.”

Let’s be clear: Hybrid economist Google is one of Lessig’s biggest backers.  Google gave Creative Commons $1.5 million and persons related to Google gave hundreds of thousands more.  That is certainly the right of Google to give money to people who support their views and it is certainly the right of anyone to start an organization that attracts those contributions.

But if Lessig really is the friend of professional artists–something I simply do not believe–shouldn’t Lessig also be leading the charge to defend them against the mob?  Some might say, the mob that he created?

Or if that’s too much to ask, then maybe the more immediate step Lessig could take would be to defend artists against wilding–something like an “ethical nudge” as it’s known around the Edmond J. Safra Research Lab at Harvard.  Not just once in a footnote, but every time, defend them vocally and unequivocally.  And not just the amateur artists he often equivocates with professional artists, but all artists.  That would take real leadership, not throwing eggs in the dark of night or its online equivalent.  (Of course, distinguishing between professional and amateur artists is not to disparage either–we all start out as amateurs, but as we evolve into pro-am and professional status, our needs change.)

Until he has himself stood up and taken the heat from the mob when they are attacking professional artists, then he should also understand that many believe he lacks the bona fides to attack their elected representatives for doing so.  Ever since the Napster case, one of the PR strategies of “innovators” like Grokster, Morpheus and Limewire has been to savagely attack–or sound the dog whistle for others to attack–the artists involved.  However much I loathe that PR strategy, you could kind of understand it in the Metallica case because one band–one–was suing.  But after that, the genie was out of the bottle, and the “dark side” PR strategy really went to the very dark side and became directed against all professional artists–really any artist who asserted their Constitutional rights against the mob.

Maybe Lessig could win an election to the presidency of Creative Commons Corporation if the participating artists were given the right to vote in a supervised election.  (That would, of course, require identifying these artists, and you know how invasive that can be.)  I’m sure Google would be happy to pay for that election, too.  Why doesn’t he do something like that?  I wonder.

But it’s no wonder that the unelected Lessig takes shots at the representatives of professional artists.  Just like Google, he likes his artists alone, broke and powerless, all nicely trussed up for processing by the hybrid economy.

__________________
See also “Creative Commons: Because it sure seems to cost a lot of money to give things away for free

Creative Commons, the floating legal department for the global anti-copyright movement

Do it, or we’ll do it for you: Jeremy Hunt and Ed Vaizey stand up for human rights of UK artists

September 14, 2011 Comments off

In a move perhaps connected to Google’s prosecution and payment of $500 million forfeiture for promoting the sale of illegal drugs, The Guardian reports that the UK Culture Minister Jeremy Hunt will announce today that the Cameron Government expects “Google and other companies to take action against rogue sites, but could introduce new legislation in the forthcoming communications bill.”  (See “Google Faces Pressure to Block File Sharing Sites.”  Read a copy of Google’s plea agreement in their prosecution for promoting the sale of illegal drugs.)

Just to put this in a little context, Google’s global head of communications and public policy is married to Steve Hilton, a political advisor to Prime Minister David Cameron.  As you would expect, this relationship has come under scrutiny in the UK press, which cannot have been helped by the recent phone hacking scandal.  The closeness of Google and Prime Minister Cameron has also been criticized in the Hargreaves Review debacle, so for the Cameron Government to take a position not only pro-artist but also one that will be perceived as anti-Google is really quite remarkable for those of us who read the tea leaves from the sidelines.  (Ed Vaizey, a Minister with responsibilities for Culture, Communications and the Creative Industries, has been very supportive of the UK arts community, so what is interesting about this is the combo of opposing Google while supporting the creative community.)

Given that context, Jeremy Hunt is to be commended even more for his principled stand against all those in the wheel and spoke structure that Ellen Seidler calls “Popup Pirates“, the unholy alliance of adserving companies (of which Google is by far the largest), linking sites, cyber lockers, credit card companies and others in the chain.  There has been remarkable success in the U.S. with the Protect IP Act in getting companies to come to the table once they have been informed of the problem–except for Google, which is still clinging to the hope that they can fool us all once again behind their substantially tarnished “hear no evil,” “see no evil”, “do no evil” mantra.

The Guardian reports that this isn’t going anywhere with the Cameron Government, as “[g]overnment ministers see Google as one of the key players in the fight against online piracy, chiefly because it is a portal to the web for nine out of 10 UK search engine users….Hunt is believed to be in favour of an independent cross-industry body…that will identify sites used for illicit filesharing and push for them to be blocked.  The use of [this] model as a way to combat piracy was first raised as part of communications minister Ed Vaizey’s industry round tables on web blocking at the end of last year.  ‘We do not allow certain products to be sold in the shops on the high street, nor do we allow shops to be set up purely to sell counterfeited products. Neither should we tolerate it online,’ Hunt is expected to say.”

Minister Hunt is quoted in the Financial Times as saying “The government has no business protecting old models or helping industries that  have failed to move with the times. But those new models will never be able to  prosper if they have to compete with free alternatives based on the illegal  distribution of copyrighted material.”

Hear, hear.

We commend Messrs Hunt and Vaizey for clearly identifying a legitimate role for government in protecting the human rights of artists online,  taking the steps to do something about it, and having the courage to challenge evil when they see it.  Not just challenge it, but also shake Old Nick by the tail.

Boldly.

Music Week has the full text of Minister Hunt’s speech.

Google’s response?  According to the Financial Times ‘Google has industry-leading measures to fight online piracy,” it said. “We work  hand in hand with copyright owners to remove infringing material from search  results. Without a court order, any copyright owner can already use our removals  process to inform us of copyright infringing content and have it removed from  Google Search. We recently announced a series of measures that make this process  even easier, bringing our removal time down to an average of four hours.’

Google’s “measures” are clearly designed to try to fake out the creative community, lawmakers and judges (see The Complete Checklist on Google’s Non-Antipiracy Antipiracy Policies).

Another reference point for Google’s intentions is found in a statement by Google’s Executive Chairman (and who was CEO during the time that the U.S. Government successfully ran seven sting operations against Google for promoting the sale of illegal drugs): “‘If there is a law that requires DNSs [domain name systems, the protocol that allows users to connect to websites] to do X and it’s passed by both houses of congress and signed by the president of the United States and we disagree with it then we would still fight it,’ he added. ‘If it’s a request the answer is we wouldn’t do it, if it’s a discussion we wouldn’t do it.'”

But the quotation that is perhaps most revealing is this one, which Schmidt made at a conference at which both Minister Hunt and Schmidt were speakers: “”We would prefer to try to use best practices within the industry instead of regulations. If there is legislation it should be based on the best practices of the leading companies.'”

In other words: Google does what Google wants to do and it makes the law in its own image, whether it’s stealing copyrights or selling drugs.

CNET: FBI makes arrest in ‘Wolverine’ uploading case

December 16, 2009 Comments off

It will be interesting to learn more about the how, when and why, and more importantly who about this case.

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