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A Cautionary Tale for Congress: Big Tech Uses Fake Grassroots Interference Lobbying In Europe

March 11, 2019 Comments off

There’s a sound policymaking reason why the European Parliament should ignore the bombardment of email and social media messaging it has recently endured for copyright reform.  That reason is well articulated in a 2010 memo by Professor Cass Sunstein (then Administrator of the White House Office of Information and Regulatory Affairs) when he cautioned the Obama Administration against relying on social media for making policy:

“Because, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”

In a post-Cambridge Analytica world where social media platforms not only are ubiquitous but also have earned the distrust of policy-makers and voters as well as parents, Sunstein’s nine-year old admonition is especially prescient-but he could have added “easy to fake.” This would apply to the new boiler rooms of fake Twitter accounts with distorted ratios of tweets to followers, or followed accounts to likes–such as the infamous Internet Research Agency.

Sunstein’s memo is both ominous and also relevant given developments at the European Parliament over the last few months.  Big Tech’s interference lobbyists are fighting the last war against safe harbor reform using “fake grassroots” online campaigns against Members instead of legitimate advocacy.

Specifically, the reaction of multinational Big Tech legacy players to the European Parliament’s safe harbor reform effort demonstrates a toxic brew of corporations attacking Members.   That’s a dark turn to Sunstein’s analysis.  Crucially, it appears that bot farming techniques and mass email attacks verging on denial of service are weapons in Big Tech’s interference lobbying arsenal despite their hollow assurances to multiple governments about policing interference by state actors in national elections.

Think it can’t happen here?  Think again.

Europe’s Safe Harbor Reform

Known formally as the “European Directive on Copyright in the Digital Single Market” or informally as “Article 13”, the EU legislation is intended to update the law and, among other things, substantially cuts back the legacy safe harbor privilege that is so valuable to Big Tech. (See Emmanuel Legrand’s excellent summary.)  It’s understandable that they would–Facebook, Google, Twitch and others have based their trillion-dollar market caps on what otherwise would be called piracy–also known as the “value gap”.

Congress has yet to grapple with the US version of the DMCA safe harbor (referring generally to Section 512 of the Copyright Act), although the Copyright Office is beginning field hearings on the much needed overhaul.  Originally conceived in 1998 as a way to afford a little latitude to reasonable people acting reasonably, Big Tech and its acolytes have distorted the DMCA “safe harbor” beyond recognition in the last twenty years and converted into an alibi.

In the last session, Congress took an important step by cutting back a different safe harbor in Section 230 of the Communications Decency Act with the SESTA-FOSTA package.  SESTA-FOSTA eliminated a safe harbor for sex trafficking which seems uncontroversial-but caused a huge lobbying counterattack by Big Tech.  If you caught any of the manipulated onslaught against SESTA-FOSTA, you have a taste of what the European Parliament is experiencing with their Copyright Directive.

There’s no question that Google and Facebook lobbyists interfered with the EU’s legislation–the companies threatened an MEP that they would interfere in the EU elections if they were challenged on Article 13:

German MEP Truepel gives a first hand confirmation of what happened.  Further, in an official blog post that has become controversial because it struck a little close to home, the European Commission commented conclusively on the MEPs’ experience with Big Tech’s “fake grassroots” campaign and interference lobbying tactics:

[T]here is ample evidence from respected sources, here and here and perhaps here or here or indeed here that ‘Big Technology’ has even ‘created’ grassroots campaigns against the Copyright Directive in order to make it look and sound as if the EU is acting against the ‘will of the people’….

Do Google, Facebook or others really need to pay to persuade?

Are we in a world where ordinary people side with the fire breathing dragon against the knight with a blue and yellow shield?

The Fake Interference Campaign

Yes, Google and Facebook attempted to pass off a blistering email spam campaign targeting Members as a spontaneous grassroots uprising.  Not just once, but three times on three separate votes in Parliament on the Copyright Directive-even after they had been caught faking and interfering by major news outlets.

The first “campaign” was around a committee vote that resulted in a win for Big Tech. Thanks to David Lowery and Volker Reick, the press called out the fakery in exposes by the Times of London and Frankfurter Allgemeine Zeitung among others.  Big Tech attempted to counter that expose by organizing in-person protests after making online threats of the “we’ll show you we’re real” variety across Europe.

Far from setting Europe ablaze, some estimate that these protests drew fewer than a total of 500 across Europe in multiple locations.  Pictures taken at these “protests” suggest that they were primarily organized by the Pirate Party, a fringe political party with one MEP that supports piracy and safe harbors as its name suggests.

Expose or no expose, the “fake grassroots” and spamming were repeated as the Copyright Directive went through successive procedural votes-which Big Tech lost miserably.  Yet the multinationals keep running the same interference play and kept getting sacked.

Members and the European Commission Speak Out Against Interference

Members were not fooled.  One example is an odd Tweetstorm against reform by suspicious accounts.  Members were subjected to attempts to stimulate the documented “emotional contagion” that drives social media.  A typical bot-like Twitter account against the Copyright Directive would have followers in low double digits or fewer but tens of thousands of tweets and a disproportionately high number of “likes” (in some cases over 100,000).  That ratio suggests that the account was used to capitalize on the Twitter “ratioing” algorithm to drive the corporate message into user timelines.  One wonders what did Twitter know and when did they know it?

In addition to the Tweetstorm, interference lobbyists ran a near-DDOS level email campaign that was actually counter-productive.  When asked at a press conference why the vote tally switched from opposing the Copyright Directive in the first committee vote to overwhelmingly supporting it in the next plenary vote, German MEP Helga Truepel pulled no punches:

“I think it’s due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally [angry]…”

The European Commission’s official blog echoes Sunstein:

So next time, when you get a sponsored message on your timeline, which says something like ‘the EU will kill the world wide web as we know it’, stop, pause and consider for a moment. Ask yourself: Cui Bono? Who really benefits from this message or this wider negative campaign?

We know the answer to that question.  Google and Facebook became the biggest corporations in commercial history by manipulating legacy safe harbors in ways that neither Congress nor the EU intended.  Despite assurances about policing interference by bad actors on their networks, the European experience suggests they are actively using similar interference techniques to protect their privilege.

Europe has shown the world that legacy Big Tech business models can be brought into the 21st Century through well thought-out legislation.  But Congress would do well to arm itself against comparable “fake grassroots” interference campaigns in making policy for vital DMCA safe harbor reform to close the value gap.

[This post first appeared in the MusicTechPolicy newsletter, sign up for free version here.]

What do Don Henley, Glenn Frey, Deadmau5, Sam & Dave and The Beatles Have in Common with Hotel California? Facebook is Selling Their Names as Keywords

February 22, 2017 Comments off

MTP readers will recall that there is a long history of Internet advertising companies selling keywords under dodgy circumstances.  We have some documentation of this practice–starting in 2003ish an affidavit from the “DownloadPlace” litigation documents that Google suggested artist names as Google Adwords.  In the Google drugs non prosecution agreement case, Google representatives sold drug-related keywords in an FBI sting operation that resulted in a multi-year grand jury investigation and Google paying a $500,000,000 forfeiture.

But there’s a new bad boy on the block–Facebook.  Not only has Facebook refused to get music licenses, Facebook is actually selling artist names as keywords.  You can determine this yourself by “boosting” any post and setting the “Create Audience” filter to include artist names or song titles under “Interests”.

Here’s a few examples–my bet is that none of these are protected by any safe harbor (DMCA or CDA) as the selling of the artist names and song titles is likely not avoidable that way.  Also–it’s important to note that all these artists and songwriters no doubt have heavily negotiated restrictions on the use of their names for advertising purposes so it’s not like they didn’t think about it.

Don Henley:

facebook-don-henley

Glenn Frey:

facebook-glenn-frey

Hotel California

facebook-hotel-california

Sam & Dave

facebook-sam-dave

Deadmau5

facebook-deadmau5

The Beatles

facebook-the-beatles

T-Bone Burnett’s Comments on Reform of the DMCA Safe Harbor

February 22, 2017 Comments off

The U.S. Copyright Office has invited the public to comment on potential reforms of the DMCA “safe harbors” and the incomparable T-Bone Burnett delivered this video version of his insightful comments on DMCA abuse.  (See also Billboard article on T-Bone’s comment and my 2006 post on MTP, The DMCA is Not An Alibi.)

It is important to make the distinction that T-Bone makes and that Beggars Group Chairman Martin Mills made in his Canadian Music Week keynote–the problem with the DMCA safe harbors is not so much with ISPs like AT&T and Verizon that take respecting copyright seriously (both were in the Copyright Alert System).  The problem is with companies like Google that don’t respect copyright as T-Bone makes clear.

It is important for Congress to keep this in mind–and any failure to do so will call into question Google’s massive lobbying power.

@katenash: Royalty Deadbeat Snapchat Gets big billions for valuation, but has no licenses?

February 17, 2017 Comments off

Kate Nash leads the way for songwriters and artists who are wondering when the income transfer to Big Tech in the collaborative “sharing” economy is going to start getting shared the other direction by these royalty deadbeats.

Snapchat joins the leading Silicon Valley royalty deadbeats like Facebook with a big IPO filing but relying entirely on losing legal theories like the faux “DMCA license” that was a big loser for Cox Communications.  (Ironically, Cox was just ordered to pay BMG’s $8 million and change in legal fees from Cox’s $25 million jury verdict in their losing DMCA defense.)

And how do we know this?  Because Snapchat tells us they do in the risk factors of their IPO filing:

We rely on a variety of statutory and common-law frameworks for the content we provide our users, including the Digital Millennium Copyright Act, or DMCA, the Communications Decency Act, or CDA, and the fair-use doctrine. The DMCA limits, but does not necessarily eliminate, our potential liability for caching, hosting, listing, or linking to third-party content that may include materials that infringe copyrights or other rights. The CDA further limits our potential liability for content uploaded onto Snapchat by third parties. And the fair-use doctrine (and related doctrines in other countries) limits our potential liability for featuring third-party intellectual property content produced by Snap Inc. for purposes such as reporting, commentary, and parody. However, each of these statutes and doctrines is subject to uncertain judicial interpretation and regulatory and legislative amendments. Moreover, some of them provide protection only or primarily in the United States. If the rules around these doctrines change, if international jurisdictions refuse to apply similar protections, or if a court were to disagree with our application of those rules to our service, we could incur liability and our business could be seriously harmed.

 

 

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“Out of Balance”: @beggarsgroup Martin Mills’ Rallying Cry on DMCA Abuse at Canadian Music Week

May 10, 2014 1 comment

Martin Mills is Chairman of the Beggars Group, home to some of the best known brands in the music business–4AD, XL, Matador, and Rough Trade, as well as the Beggars Banquet catalog.  In addition to his companies, Martin is a leading advocate for independent record companies around the world.  He’s also a fine example of what used to be called a “records man”, a term you won’t find in Wikipedia.

Martin’s companies have a long history of finding and developing some of the most compelling artists in our business including Adele, Friendly Fires, Jack White, Radiohead, Thom Yorke, Atoms for Peace, Sigur Rós, The National, Interpol and Iron and Wine to name a few in no particular order.

I attended Martin’s keynote at Canadian Music Week on Thursday, and he gave me permission to reprint his speech.  Given the current attention devoted to copyright issues in the U.S. thanks to Chairman Bob Goodlatte and Register of Copyrights Maria Pallante, I’m going to post it in two parts.  Today’s post is actually the second part of Martin’s speech concerning the DMCA safe harbors, a topic that was the subject of a recent IP Subcommittee hearing in the House of Representatives.

We’ll post the first part about commercial balance in a coming discussion of commercial negotiations with online retailers.

This part will address the problems that Martin has with interpretations of the DMCA and notice and takedown-type statutes in various countries.  These interpretations, particularly by Google, go to the lack of respect for music and creators demonstrated by Google and in particular by YouTube.

Out of Balance: DMCA Abuse

I’d like to take a little time to say a few things.

I’m often asked what I actually do day to day, now that I have a company of 150 people taking care of things, and it’s not an easy question to answer.

But the answer is – balance.

I maintain many different balances, and that can be a subtle and delicate process.

Balance in personal relationships in the business.

Balance between the four labels in my family.

Balance between commercial needs and artistic integrity.

Balance between promotional opportunity and the need to maintain the value of our artists rights.

But we operate in an industry today that is out of balance. And we need a balanced industry like we need a balanced diet.

Imbalance in the Safe Harbors:  YouTube and Grooveshark Rely on Distorting the DMCA

[An] imbalance I want to talk about is the safe harbour provisions, and similar terms in other countries. They were introduced, with some foresight, by the legislators in the USA framing the DMCA, to provide a notice and take down procedure for unlicensed content. But the legislation has been distorted into a protective wall behind which cyberlockers and torrent sites, and companies such as YouTube and Grooveshark, operate.

The original intent was to protect reasonable people acting reasonably from falling foul of the law, to enable the digital economy to grow without “ gotcha “ law suits against ISP’s who had no idea that their networks were being used for infringement. They were not intended to provide fortress walls behind which companies could build billion dollar businesses on content that had not been cleared. They were never intended to become a de facto “ licence “.

To draw an offline analogy, these provisions would allow someone to burgle your house and remove its contents, with their only risk being that if you caught them, they’d have to return them – and maybe apologise. And then do it again. And again. And again.

Copyright is meant to allow you to control your own work. That is totally undermined when another law says that people in effect can ignore it with impunity. Would we consider a safe harbour law allowing small restaurants to ignore food hygiene laws ? Or a safe harbour for personal data being inappropriately used ? Of course not.

YouTube’s Distortion of Safe Harbors Harms the Indies Most

As you might imagine, policing the YouTubes of this world for infringing content is a herculean task, one beyond all but the largest of companies. For my community, the independents, it’s a game of whack-a-mole they can only lose.

These provisions are being abused. Many of the companies taking advantage of them are not start-ups that need a break, they dwarf everyone in this room. They’ve been in business long enough to now be able to identify that content. They know what it is.

They should not need that protection any more. Those provisions hobble creators, and they give those that use them an unfair competitive advantage over companies such as iTunes, Spotify, Amazon and Rdio who DO pre-licence content. Google says that safe harbours have been crucial not only to them but also to every other internet company. That’s not true. And Youtube says it’s paid out a billion dollars to music rights owners – but so has Spotify, from one thirtieth as many users. That economic discrepancy is because of the unreasonable economic advantage Youtube has over its digital service competitors because of its use of the safe harbour provisions.

Notice and Staydown:  US Copyright Reform Should Address DMCA Abuse and Restore Balance

The American government is increasingly looking at reforming copyright laws. As long as that reform creates a balance between strengthening copyright and allowing investment in the creative world, and adapting it to a world never envisaged, I support that intention. But I believe part of that change must be to remove the safe harbour loophole.

We are at the point at which notice and take down must become notice and stay down.

To conclude, whilst thanking you all again, I would like to quote from one company’s evidence to Australia’s Communication Ministry a few months ago.

 “ We believe there is significant, credible evidence emerging that online piracy is primarily an availability and pricing problem “

Whereas that might have been true ten years ago, today, in an era with myriad licensed services (and Australia has more than most ), and with streaming services with free tiers, I think that’s, frankly, rubbish.

Who was it from ? Google, the parent of YouTube, one of the companies that have made billions on the back of a statutory provision intended to protect ordinary people acting innocently.

Thank you.

Gideon’s Remix: First observation on why Veoh is bad policy

September 19, 2009 Comments off

I note that the quotations from Fred von Lohman, the Mystic Knight of the EFFluviati, that appeared in the press on the Veoh case were somewhat guarded. We learn from our spectacular defeats—Grokster in Fred’s case. The industry sentiment regarding Veoh reminds me of reaction to the lower court decisions in Grokster—this simply cannot be the law. And sure enough, it turned out not to be.

For independent artists and songwriters who have read the Anthony Lewis book, Gideon’s Trumpet, the Veoh case will have a familiar ring to it. (The book tells the story of Gideon v. Wainwright, the U.S. Supreme Court case that established the right to counsel of indigent defendants in state court criminal cases and essentially created the public defender system.)

Veoh is at odds with fundamental principles of American jurisprudence and our Constitution. If the decision were to stand, copyright becomes a Constitutional right without a remedy, kind of a “Gideon’s remix” denying the Constitutional right of copyright protection to those who cannot afford to defend themselves. Gideon’s remix is not a defense against the government, this time, but against vast commercial interests who will always outspend and intimidate independent artists and songwriters and who twist the laws of the United States into what is effectively a private and free de facto compulsory license—what we call “notice and shakedown”.

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat? I think we all know the answer to that one.

In light of the absurd result in both Veoh cases, I thought this post by one of the Children of the Lessig God was of interest (discussing the responsible “Take down stay down” policy adopted by MySpace):

“Under [the Myspace ‘take down stay down’ policy] copyright holders remain responsible for identifying the content themselves. MySpace will not do the initial filtering without individual notices. This might fall a bit shorter of fulfilling the content industry’s sweetest dream, but then again, a major breakthrough.”

Requiring an online service provider to “filter” is not a “dream”—it’s called getting a license. This is what legitimate companies do every day. There are entire licensing regimes built to respect the rights of authors and to facilitate licensing and payments. Pandora does it, iTunes does it, Hulu does it, Amazon does it, and Myspace does it. Why can’t Google do it?

But wait, there’s more. “Fingerprinting and other copyright filtering technologies will remain a hot topic in the near future as more market leaders are expected to be drawn into this copyright swamp. The mechanism adopted by MySpace gives rise to difficult legal questions. The blocking of subsequent attempts to upload the content is automatic and circumstances-insensitive. It does not require any further statement or declaration (under penalty of perjury or otherwise) by content owners. Yet posting the same work by one user in an infringing manner does not mean that posting the same work (or a portion thereof) by another would necessarily infringe as well. The latter could be protected under the fair use doctrine, for example, if the second attempt to post the file actually incorporates a smaller portion of the work as part of a derivative work aiming at criticizing the content owner.”

Yes, it’s possible that 4Chan and Anonymous might be prevented from criticizing the content owner by using the works controlled by the content owner in a raid (as Anonymous will tell you, “because none of us are as cruel as all of us”). But that hardly will stop critical speech, as we have seen. The incredibly antagonistic and frankly childish policies of Google on YouTube of stamping their feet and posting videos with no sound when they didn’t get their way with Warner Music Group clearly is an example of that workaround. (And also begs the question yet again—where is the board? But that is another story.)

This free speech business is a canard, of no lesser magnitude that Lessig’s “Starving Artist Canard”. The overwhelming majority of takedown notices are sent for two categories of works: Those that are taken in their entirety to profit the online service provider at the expense of the creator in the hope that the creator will take long enough to find the infringing activity that the provider can squirrel away some money during the free ride, and those that are trivial copies by users that still profit the online service provider in the aggregate and still at the expense of the creator during the free ride. Forcing a takedown in these situations has nothing whatsoever to do with free speech and everything to do with stopping a free rider.

The Veoh courts seems to believe that it was the intention of Congress in crafting the DMCA “safe harbor” that copyright owners large and small must ferret out all copies of works hosted anywhere in the vast expanse of the Internet in order to notify online service providers of their existence—even when the provider knows or should know that the copyright owner has not authorized the reproduction and distribution of a work.

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I find it difficult to believe that it was the intention of Congress that hundreds of thousands of takedown notices should be sent annually by those who can afford to do so and that those who cannot afford to do so must suffer the indignity of infringement in silence. Only to be told that “you can’t compete with free.” (Which, by the way, is one of the more illogical statements in recent memory–it’s theft you can’t compete with, not the “free” that the creator has no part in permitting.)

Notice and takedown is not intended to be a game of catch me if you can, or catch me if you can afford to. It’s not Gideon’s remix.

EFF in a bunch again over Burning Man

August 22, 2009 Comments off

Here’s the latest scary corporate bugaboo from the EFFluviati: Burning Man (creepy Eric Schmidt’s fav) has some terms of use that protect the integrity of its brand and give EFF yet another chance to alarm the masses about the evils of success–sorry–intellectual property rights.

Check out the EFFluvia from the Deep Thoughts blog.

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