Archive for the ‘copyright reform’ Category

The Return of Orphan Works: Get smart with the 2008 Orphan Works Roundtable by the Small Business Administration

May 17, 2013 Comments off

Google is–of course–very interested in orphan works.  They have a deep and abiding interest in the subject.  For example, current Twitter General Counsel, Google’s then-attorney, Berkman Center affiliate, Lessig acolyte, and all round digital sophisticate Alexander MacGilivrey made that clear in his testimony at the Copyright Office:

“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”

That statement was made on July 22, 2005—almost 4 months to the day before the Library of Congress announced a $3 million gift from Google for the Librarian’s World Digital Library pet project.

In 2008, the U.S. Small Business Administration hosted a roundtable in New York on the then-pending orphan works legislation.  The roundtable participants represented independent creators that were not getting heard over the massive lobbying muscle that was trying to jam the bill through Congress.  The Copyright Office sent a representative named Oliver Metzger who, we are informed, made it clear to some of the roundtable participants that what they did or said would have no effect on stopping the legislation he was honchoing.

Shortly after the legislation was stopped, Mr. Metzger left the Copyright Office and joined…Google.  However, lightening doesn’t strike twice and Google’s lobbying muscle is even more massive today than it was in 2008.  (For the entire sordid tale, see the excellent article by Brad Holland of the Illustrators Partnership entitled “Trojan Horse: Orphan Works and the War on Authors” that was serialized at The Trichordist.)

Fortunately, a video was made of the SBA orphan works roundtable.  We strongly recommend that you take the time to watch the video.  It’s pretty long, but it is well worth your time if you want to understand the impact of orphan works legislation on individual creators.

The Copyright Principles Project: Selflessness, Valley Style Amongst A Dedicated Group of Likeminded People

May 14, 2013 3 comments

We heard a new twist on the Copyright Principles Project–because the participants are academics, they are not “self interested” the way that creators are.  Ah, disinterested elites on a quest for truth that only the anointed can divine.

Although this point of view is common to academics (who frequently seem to think that their views are superior to everyone else’s–as any law student can attest), allow this non acolyte to diverge from the path to an “A” (or other form of approval, such as a nice fresh fish so appreciated by trained seals) and express a contrary view at the risk of getting an “F”.

First off, the Copyright Principles Project is not entirely made up of people who don’t know each other and is also not entirely made up of academics.  Some corporate types are represented–just not one soul from the photography business, playwrights, visual artists, or anyone from music (serious or pop).   So why were these people selected?

Here is a slightly annotated list reflecting those with ties to Google-funded organizations (generally advisory board types) and to organizations funded by Professor Samuelson and her husband, the well-known Silicon Valley tycoon Doctor Glushko.

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law (Creative Commons [millions funded by Google]/AU is Home of Samuelson/Glushko Center)
Julie E. Cohen, Georgetown University Law Center (Public Knowledge [Funded by Google per Google Shill List])
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology (Creative Commons [millions funded by Google])
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School (Former University of Ottawa/Samuelson Glushko CIPPIC during his tenure as dean)
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law (Public Knowledge [Funded by Google per Google Shill List])
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law (Associate at Stanford CIS, millions funded by Google)
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.

Why are these affiliations important?  First, there are a bunch of corporations flat out represented on The Project.  So if you’re going to let them in, why only them?

But what is more difficult to explain is why The Project pitched Creative Commons as a commercial solution to certain “reforms” (solutions in search of a problem if you ask” me) without disclosing the long time affiliations with Creative Commons of the participants (or, to be consistent, I guess you’d have to call them the “convened” if Professor Samuelson is the “convener”).

For example, The Project’s white paper states (at p. 24 for those who are reading along):

[W]e envision a series of registries that would meet the needs of particular authorial communities and industry participants and that could compete for business from copyright owners, as has occurred with the domain name registration system. Creative Commons, for instance, could become a registry for authors of works who prefer to allow wider uses of their works, but want control over commercial distributions of them.

How would that have read if you substituted one of the corporations participating for “Creative Commons”?  Or perhaps “Google” for Creative Commons since you are talking about data manipulation, Creative Commons gets a huge contribution from Google and the mother in law of one of the Google founders is the head of the organization.

Can we agree that the “convener” and the “convened” should disclose all of their affiliations before they testify to the American people?  If they are going to pass themselves off as selfless oracles from Silicon Valley (physically or metaphorically since they all teach “high tech law” of once species or another), shouldn’t they demonstrate that it’s not business as usual, Valley style?  Or that it is?

I acknowledge that they are not term sheet popping daddies having breakfast at Buck’s, but still–it kind of smells of the kind of shilling that caused the Google Shill List to seem necessary.  And I might actually prefer the breakfast at Buck’s types on a certain level.  At least you’d know where they stand.

For the convener and the convened not to submit their conflict of interest is just a little too convenient.

The Copyright Principles Project: The Arrogant Thimblerig of Contrived Consensus

May 12, 2013 Comments off

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this swindle is referred to as a short-con because it is quick and easy to pull off.  Wikipedia definition of “thimblerig”.

“The Project” (aka “The Copyright Principles Project”) is a group–some might say a cabal–of Big Tech lawyers and law school academics that is trying to pass themselves off as representing some kind of “consensus” about “copyright reform”.

This is a typical Silicon Valley policy deceit. It brings together a number of themes in its “principles” that have been floating around academia for years, and even made it into legislation a couple times.  The Project will be center stage this week at a special hearing of the House Subcommittee on Courts, Intellectual Property and the Internet (the “IP subcommittee”) under the title “A Case Study for Consensus Building: The Copyright Principles Project.”

The relevant document for the hearing is The Project’s white paper, which we can safely assume will be passed of as the “case study” at issue.  It may be a wish list of everything Big Tech needs to profit themselves from the the massive income transfer currently occurring online.  It may be a “case study” of “groupthink” when you get an influential financier of academia in the same room as academics who have benefited from that largesse.  It may be a “case study” for a lot of things, but what it is not is a case study for consensus.  And the fact that it is being passed off as such is yet another example of the the shell game to undermine artist rights.  And the “mark” for the thimblerig in this short con is the United States Congress and the American people.

Never ascribe to malice that which is adequately explained by incompetence.

How is the con being run this time?  I expect The Project present itself as an example of how to build consensus on copyright issues that Chairman Goodlatte has correctly identified as polarized. (“See–we’ve already done built consensus.”)

“Consensus”.  The messaging that The Project wishes to convey is that The Project is representative of a wide spectrum of views on copyright–the implication of which is that the white paper and the participants in The Project should be found to be trustworthy and believable.  Therefore there is little need to look further if you are busy people without a lot of time or staff to recreate the same process.  Such as…oh, I don’t know…the House Judiciary Committee, for example.  The Project would have the Congress think, why hold hearings when we’ve done it for you?  Particularly when we are just all so…how else to say it…soooo much smarter than you!

For example, we find this statement in The Project’s white paper:

At the outset of this project, we spent a considerable amount of time discussing the scope and objective of our efforts. We considered a range of possible outputs, from a simple statement of normative principles to the formulation of a detailed blueprint for comprehensive copyright reform. Although the group was broadly representative of different viewpoints and each of us had opinions about particular strengths and weaknesses of the existing copyright system, our ability to propose a substantial and comprehensive reform of U.S. copyright law was limited, partly because we met only three times a year for three years.

“Broadly representative”?  I think not.  But let’s look at who was represented.  And remember–this lineup was the best they could do after three years.

Weaving Spiders Come Not Here

How The Project came to be “we” is important, because who “we” are not can be just as important as who the “we” is.  In this case, even more important.

Let me point out again who the “we” is by name.  It’s this “we” who is key to understanding this entire charade.  Here is the list of participants in The Project:

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law
Julie E. Cohen, Georgetown University Law Center
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.”

So we immediately notice what others (such as David Lowery in Politico) have also–there is not one creator on this list.  In fact, we see a lot of names we recognize–Christopher Sprigman, for example, is associated with the Stanford Center for Internet and Society--funded by Google and founded by Lessig.  Now there’s some “consensus” if I ever saw it.

Sprigman is also the co-author of “The Knockoff Economy” in which he sings the praises of “knockoffs” in the fashion industry–now we know why The Project included no one from that important sector of the American economy that currently is unprotected by copyright but might like to be as long as we’re, you know, “reforming” copyright.  Sprigman also writes a blog called the Knockoff Economy in which he made this prediction after President Obama’s reelection (

Our guess is that although copyright isn’t really an important national political issue now, it may well become one.  And if it does, there are a couple of possibilities.  First, if the GOP’s very deep losses last night prompt the party to take a good look at its future prospects, it’s possible that smart Republicans might conclude that elections will simply not be winnable in future unless the party finds a way to capture a larger share of the youth (and non-white) vote. One way to appeal to young people would be to identify with their interest in online freedom. And this would lead to a GOP that favors narrower copyright. This might be a good strategy for the GOP not least because the party doesn’t depend much now on Hollywood, compared with the Democrats, for whom Hollywood is a large source of support. If the GOP can drive a wedge between young people and Hollywood-loving Democrats, that may be worth doing.

Fans of Beautiful Person Derek Khanna may be surprised at exactly how prescient Sprigman was in foreshadowing almost all of the political argumentation around Khanna’s sophomoric pitch.

MTP readers will remember the unfortunate and unworkable collective licensing scheme proposed by the Songwriters Association of Canada that we were critical of because it was unauditable, would not result in payments to songwriters as opposed to enriching middlemen, and would never be–and indeed never has been–supported by ISPs.  That debacle was appealing to collectivization advocate Professor Daniel Gervais.   The distinguishing feature of the SAC proposal was that payments to creators only increased as long as new money came into the proposed new collective–like Canada is lacking in existing collectives–at a faster rate than it was paid out.  In other words, payments varied directly with new ISP subscribers.  When the new money started to decrease, so did payments…sound like something else we’ve heard about?

We weren’t the only ones who took apart the SAC proposal–Canadian IP lawyer Barry Sookman did as well in this paper published in the Osgoode Hall Review of Law and Policy–to which Professor Gervais has yet to reply.  Not that he’s obligated to, but his silence is deafening to some of us.

Before he joined Vanderbilt Law School (in 2008), Professor Gervais was Acting Dean of the Common Law Section at the University of Ottawa, where he also served as Acting Dean from February 1, 2006 until July 31, 2006, and as Vice-Dean for Research from 2003 until January 2007.  This would be the University of Ottawa that was home to the  Canadian Internet Policy and Public Interest Clinic operated by one Michael Geist–or it was called CIPPIC until 2007 when “technology innovator and entrepreneur Dr. Robert Glushko and his wife, law and technology pioneer Professor Pamela Samuelson, made a large donation to CIPPIC….” and the name was changed to the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.  Given that Geist just loves to get his jingo on about Canadian solutions for Canadians, it’s odd that he’d sell the naming rights for CIPPIC to Americans.

And it may be odd that Professor Gervais comes from an institution that benefited from the largesse…sorry, consensus building…of Professor Samuelson, the “(convenor)” of The Project.

I won’t bore you with the various interconnectedness of the rest of the tech professors, Big Tech companies and the lawyers who represent them on this list, but the cozy nature of these relationships should surprise no one familiar with clubby Silicon Valley and its endless supply of money.  Or as it’s also known…”consensus.”

No Dogs Or Actors Allowed

The studied exclusion of creators in The Project leads to statements like this from The Project’s white paper:

At this level of generality, agreement is easy to reach. Disagreements tend to arise over how to implement these goals in statutory language and actual practice.

So “agreement is easy to reach”.  Notice that little sojourn into the passive voice.  Does “agreement” mean unanimous agreement?  Agreement among the tech lawyers?  Who is doing the agreeing?  And who is not?  If you have agreement about painting the dining room but no agreement on the color, how much agreement do you really have?  And if you have agreement about painting the dining room but can’t agree about whether to use a brush or the dog’s tail, is that really agreement about anything?  Unless you really, really want to make it appear that there is agreement among a group?  A group of unknown composition in this case.

But take three guesses about who could be helpful with the “actual practice” part?  Oh, maybe–an artist?

And then there is this gem regarding taking away from authors the 35 year termination right for “authors” (which in this case essentially means all creators other than employees for hire):

The termination of transfer provisions of current law were the subject of considerable discussion at [Project] meetings. We were able to reach consensus that the existing rules are too complicated and formalistic, and that some reform of them would be beneficial. But when it came to specific proposals to improve these rules, there was substantial disagreement.

There was some sentiment in favor of elimination of termination rights altogether, in part because current provisions are too complicated to be useful to most authors, and in part because termination reflects a paternalistic effort to protect authors. Others preferred to reform termination in order to create a simplified copyright reversion mechanism that would be easier for authors to actually use.

So how would The Project know whether the poor authors found the current rules “too complicated to be useful”, “paternalistic”, or whether “reform” would make the rules “easier for authors to use.”  Because I can tell you that there are an awful lot of authors who are absolutely crystal clear that they get to have their rights back after 35 years and they are finding it very, very easy to send in their notices.

How in the world could this room full of highly educated people be possessed of such an astounding arrogance that they have somehow divined what authors would and would not find useful, paternalistic or difficult to use without including an author in The Project?

Oh, right.  I forgot.


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

"The (legal) music fades out for Canadians"

October 27, 2009 Comments off

Interesting piece from Barrie McKenna, Washington correspondent for Canada’s Globe & Mail: “And the creative industries that produce music, software and the like – industries that contribute significantly more to the economy than BitTorrent sites – may also shun Canada if nothing is done.

That hurts Canadians, and most people don’t even know it’s happening.”

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