Archive for the ‘getting googled’ Category

Google and Amazon Leverage Copyright Loophole to Use Songs Without Paying Songwriters

October 15, 2016 4 comments

Two vastly wealthy multinational media companies are exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. Why? Because Google and Amazon–purveyors of Big Data–claim they “can’t” find contact information for song owners in a Google search. So these two companies are exploiting songs without paying royalties by filing millions of notices with the Copyright Office at a huge cost in filing fees that only megacorporations can afford–an unprecedented land grab in nature, size and scope.

That’s right–Google and Amazon are falling over themselves to use their market power to stiff songwriters yet again. And as I will show, it is not just obscure songs that are affected. New releases, including one example from Sting, are also targets suggesting significant revenue loss to songwriters.  (I go into this in more detail on this series of posts.)

I happened to speak to a representative of one of the mass NOI filing companies after a recent panel in Los Angeles who assured me that the reason that his clients were filing these NOIs was not because they did not want to pay royalties but because they were so worried about liability from a “Jeff Price jihad” and that his clients fully intended to pay royalties retroactively once the song owner became known unlike the record companies who are “thieves”.   I believe that he believes that his client believes that they’re just trying to avoid being sued for not having the rights, but humor this unbeliever.  My bet would be that getting that retroactive payment will take the effort worthy of an act of Congress.

Perhaps literally.

If his new boss clients had a reputation for or history of treating creators fairly, I’d be far more inclined to bet on sunshine and puppy dog tails, but they don’t so I won’t.  The problem would be easy to solve–all they would need to do is issue a press release or even a blog post on the Google Public Policy blog stating that it is the official position of the company to pay retroactively.  Even if you accept his premise that record companies and music publishers are “thieves,” they never filed millions of NOIs.  In the meantime while we’re waiting for that post, I think we have to act as if it is not coming.

The U.S. Compulsory License

Songwriters are the most regulated workers in America. The government sets wage and price controls on most uses of songs and practically everything else about a songwriter’s business–except fulfilling government’s basic role of keeping them safe from piracy and multinational monopolists gaming the system. Congress needs to stop this latest scam.

The latest loophole that Google and Amazon are hacking is uniquely American–the compulsory license for songs. No other country has one. Most songwriters would prefer that the U.S. repeal this legacy anachronism from 1909 that keeps the government’s boot on their throats.

In order to get the government’s license, services only need notify the songwriter (or their publisher) that the service intends to use the song under the compulsory license. Of course, sending this notice of their intention to use the song (called an “NOI”) requires knowing who to send it to, and that is the “hack” that Google and Amazon are exploiting now. Others services surely will follow their market leadership if Congress fails to act.

The hack uses market power to manipulate a loophole in how those NOIs are sent. Common sense tells you that to send a notice, you must know who to send it to, even for a song. But does common sense also tell you that if you don’t know, the law should allow you to exploit the songs without compensation? Particularly if you’re the biggest purveyor of data in human history?

The legacy compulsory license allows services to exploit songs if they decide they can’t find the songwriter–and not pay royalties until the songwriter finds them.

That’s right–Google and Amazon trade on a loophole that allows them to serve NOIs on the U.S. Copyright Office if the song owner cannot be found in the public records of the Copyright Office regardless of what other information is readily available to these services, including their own. And once Google or Amazon serve that “address unknown” NOI, they don’t have to pay royalties and they cannot be sued for copyright infringement–so the millions in filing fees they will spend at the Copyright Office is a kind of insurance premium. This excerpt from the Copyright Act states the rule:

Why Can’t Google Search?

The “address unknown” NOI starts from this premise: Google is supposed to search for the song owner’s contact to send NOIs.

That’s right–Google is supposed to search. Think about that. This 1976 rule was never intended to apply to a music user with Google’s search monopoly. Yet, if Google “can’t” find the song owner after a search, then Google can serve an “address unknown” NOI to the Copyright Office and then exploit the song for free until the songwriter can be “identified” in the Copyright Office records–which may be never.

That registration by songwriters–while prudent–is costly and entirely voluntary. Forcing songwriters to register essentially turns the system into a version of YouTube’s “opt out” debacle, and probably violates international copyright treaties.

But the idea that Google can’t find someone is a remarkable thought. Gmail alone has over one billion users. Google knows everything about everyone and makes billions of dollars from reselling and manipulating that information. Not to mention the fact that Google bought the music licensing service Rightsflow–itself an NOI mill. Not to mention ten years of information Google has scraped from Content ID on YouTube or sheet music on Google Books.

Amazon also has a phenomenal amount of information about music ownership. As one of the biggest CD and DVD retailers, Amazon certainly has a head start in song research.

However–it appears that Google and Amazon are not using their own data for NOIs. Instead, they apparently are buying databases from the Library of Congress that tell them whether a song is registered for copyright or otherwise recorded in the digitized Copyright Office files (which songwriters are not obligated to do in order to get the benefits of the compulsory license). Those Library of Congress databases at best only cover copyrights after 1978 for technical reasons, so tens of thousands of jazz, blues and classical compositions created before 1978 are not included, as well as songs from outside the US before or after 1978.

LOC Prices Databases.png

Why buy this data when these giant corporations already have so much information at their fingertips? Because the point for the services is not to find out who actually owns the songs, the point is to find out if the Copyright Office has a record of who owns the songs based on the Library of Congress data.

That is the hack.

Kafka-esque Moral Hazard

In other words–the government allows Google to claim they can’t find the songwriter even if Google’s own data would reveal their identity just because the song owner isn’t included in the Library of Congress database at the time Google searches. And there’s the “gotcha”.

Kafka’s next book is in there somewhere.

Offering all the world’s music all at once presents a licensing problem that no system will be able to solve due to the sheer numerosity and disaggregation of the creative process. How many songs will be written by the time you finish reading this post and how would you find out who wrote them?

So it should not be surprising that the market has offered a few ways to solve for this problem: Direct licenses (bypassing the NOI altogether) and NOI clearance companies that specialize in maintaining song owner information to send out mass mailings of NOIs (sometimes called “carpet bombing NOIs”).

These are two significant methods available to Google and Amazon and my guess is that these monoliths employ both methods for their interactive streaming services (the kind of service that competes with Apple and Spotify).

What’s the Alternative?

If Google and Amazon cannot find the song owner under their direct licenses or through an NOI company, how can they find the song owner? The easy answer is don’t use the song. But that approach is counter to offering all the world’s music at scale by creating supply that is not responsive to demand.

Deciding which songs are right for “address unknown” NOIs requires some Silicon Valley style hocus pocus. Remember–it’s not that Google can’t find the song owner. The loophole requires that they can’t find the copyright owner in the pubic records of the Copyright Office, even if Google has actual knowledge of their whereabouts.

Then you have to believe that Google knows where to get the information for which direct licenses they want, they know how to carpet bomb NOIs, they have a decade of information in Content ID, but when it comes to some songs, Google has to turn to the Library of Congress? And Google’s only choice is to serve “address unknown” NOIs on the Copyright Office?

Once served, the Copyright Office posts these mass filings on their website in large Excel files so that songwriters can sift through the haystack to find their needles. This hit and miss and self-serving process is fraught with moral hazard and should not be the law in 2016.

This is what the filing looks like–but realize that “1 NOI” means “1 NOI With An Excel file with over 40,000 songs on it”.


Sting Songs Give Some Examples

A spot check of a couple of Google’s filings reveals that Google is not getting it right. Let’s use three Sting songs for an example.

Sting’s recent release “50,000” (coincidentally a tribute to David Bowie and Prince) is on Google’s “address unknown” NOI list. That song is probably subject to a direct license, but the song copyright registration may not yet have been processed. There’s almost always a delay in processing copyright registrations, so new releases will rarely appear in the Library of Congress database day and date with the song’s release. Google will not be paying royalties on Sting’s song, but will be exploiting it.

That’s right–a song that is a tribute to an artist rights advocate like Prince is itself being ripped off.


Google has also filed an “address unknown” NOI for a song entitled “Fragile (Live)”. My bet is that “Fragile (Live)” is “Fragile”, the well known hit song and anthem of the environmental movement.

This likely means that someone at Google seems to think–or wants to think–that “Fragile (Live)” is a different song than “Fragile”, probably because there is a sound recording registered for “Fragile (Live)” in the sound recording metadata but no song registered by that name in the Library of Congress database. And why would there be if it is the same song? We humans have a way to catch this kind of mistake.

It’s called listening.

This pattern repeats with “Brand New Day (Cornelius Mix)”, also included on Google’s “address unknown” NOI. Again, a version of the sound recording, not the song. The song remains the same.


It is highly likely that the songs “Fragile” and “Brand New Day” were registered with the Copyright Office long ago. That’s probably why the “Live” and remixed versions of the sound recordings show up in Google’s NOI filing for the songs and the original versions do not.

In this case, not only are these songs likely covered under a direct license with Sting’s publisher, but even if they are not, the song owner’s information is identified in the public records of the Copyright Office. The loophole does not apply, but Google takes it anyway and the cost of checking up on a multinational media company falls on the songwriter.

And given that it’s Google, the songwriter will probably have to sue them to a final non-appealable judgment in order to fix the mistake that should never have been allowed to happen in the first place.

The Congress Must Act

The government’s compulsory license has become distorted by rent-seeking behavior by multinational media corporations. It should be stopped or substantially modified. If Google is allowed to use this loophole to profit at the expense of songwriters from its considerable influence peddling and litigiousness, that will be crony capitalism writ large.

Despite the assurances of the mass NOI filing agent, my view is that until I see it in writing, I have to assume that Google and Amazon took this route because it not only offered an opportunity to react to Jeff Price or David Lowery who have the temerity to speak up on behalf of song owners, it had the added bonus of actually stiffing songwriters. The reason I think that is so is because that’s what they chose to do rather than taking the obvious alternative–just not using someone’s property if you decide you can’t find the owner.

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 3) — Music Tech Solutions

October 3, 2016 Comments off

As we saw in parts 1 and 2 of this post, New Boss companies like Google are playing on a loophole in the Copyright Act’s compulsory license for songs to shirk responsibility for song licensing from the songwriters or other copyright owners, get out of paying royalties and stop songwriters from auditing. Not only have Google targeted long tail titles, but also new releases and songs by ex-US songwriters who are protected by international treaties. This is exactly the kind of rent seeking behavior by crony capitalists that gives Big Tech a bad name in the music community.

via Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 3) — Music Tech Solutions

@GTP_Updates: White House Kept Close Tabs on FTC Google Antitrust Probe — Artist Rights Watch

August 17, 2016 Comments off

White House Internet Advisor R. David Edelman

Newly-uncovered emails show the White House was closely tracking the outcome of the Federal Trade Commission’s antitrust probe of Google, with an official contacting Google’s lobbyist shortly before the agency’s decision to settle the case.

via @GTP_Updates: White House Kept Close Tabs on FTC Google Antitrust Probe — Artist Rights Watch

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: 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.]

Update: Should there be a rating system for “red flag” knowledge: Are Five Million DMCA notices too many?

December 27, 2011 3 comments

[3/31/13 Update by Editor Charlie:  We now know courtesy of Google’s DMCA Transparency Report that Google processes roughly 10,000,000 DMCA notices a month for search alone which Google acknowledges to be 97% accurate.  It also seems likely that the Google lobbyist had some idea or actually knew of this level of infringement in Google search at the time she testified.  And Google sends traffic to pirate sites where it also sells advertising on a CPM basis–profiting from the theft.  When will someone call this out for what it is–a criminal agreement to profit from massive infringement?

12/27/11 Update by Chris Castle:  In written testimony before the House Judiciary Committee on November 16, Google’s lobbyist acknowledged that “During 2010, we processed DMCA takedown notices for approximately three million items across all of our products. Already in 2011 we have processed takedown notices for nearly five million items, and we have done so more quickly and efficiently than ever before.” 

Interesting, because of a couple things:  First, that’s a 166% increase year over year.  Second, in her oral testimony, she left out the 3 million in 2010 part.  Maybe that was just an editorial decision, but if the members had not read her written testimony (highly likely) and didn’t focus on that part, they probably would not–and didn’t–raise the rather startling growth of DMCA notices “processed”.  And finally that word “processed”–how many of you reading that statement thought she meant “taken down”?  If you have had any experience with Google (see you would know that there is a very, very long way between “processed” and “taken down”.

We were also treated to many recitations about how much money the tech companies make off of the Internet and the DMCA.  The implication is that’s all magically new money.  How much of it is more income transfer than profit from innovation?

The following piece written by Chris Castle first appeared in MTP in 2006.]

In a recent conversation I had with an attorney who has represented YouTube, I asked him a question that I now feel very safe in asking—does a million notice and takedowns sent to one service in 12-18 months constitute “red flag” knowledge? This isn’t speculation anymore–YouTube must have received at least a million DMCA notices by now.  Even if the site has a repeat infringer policy, should they still get a safe harbor if they seem to attract significant numbers of repeat infringers?

Realize that if a million notices constitutes “red flag” knowledge of infringing activity, the recipient infringer may be denied the protection of the safe harbors in the Digital Millennium Copyright Act.

His reply? Well, you see, it depends on how large the service is.

Ah, I see. So if the “service” does a really good job of creating lots and lots of infringement but only gets caught a small percentage of the time, then that doesn’t mean that they “knew or should have known” that infringing activity was going on. Even if that small percentage was over a million copyright owners who decided to send notices. (Realize that at least 10% of that hypothetical million was the Viacom lawsuit alone, and another 5% was JASRAC alone, etc.)

So if your average “citizen of the 21st century” happens to run across their work on YouTube but doesn’t know what to do to take it down, phrases their notice incorrectly–what then?

Or what if the artist “citizen of the 21st century” can’t afford a lawyer “citizen of the 21st century” to tell them whether the use involved is “fair use” or whether the artist’s unschooled consideration of whether the infringer’s use is subject to a “fair use” affirmative defense was accomplished with sufficient “good faith”, yet another new wrinkle courtesy of The Leland Stanford Junior Google Law School lecturer and U.S. District Judge Jeremy Fogel (who essentially codified what we understand to be the DMCA practice of Stanford benefactor Google in his ruling in the Lenz case)?

Nothing will happen. Nothing. And these artists who throw up their hands out of economic desperation will also make their contribution to the $1.65 billion of free rider profits that the YouTubes put in their pocket from the work product of others that they can’t hold a candle to.

So how does the average “citizen of the 21st century” decide how to spend their time monitoring the Internet for infringements of their works? Google and its amen corner continually tell us that was the deal that copyright owners made in the DMCA—catch us if you can. Democracy guided by the hand of the Almighty.  Not true, of course, and bad advice, most certainly, but that’s what a Google might say.

Wouldn’t it be more efficient for an artist “citizen of the 21st century“–who wishes to enjoy all the extraordinary benefits the first decade of the 21st century is bringing to them–if there were some kind of ranking system for the really bad guys? A ranking system for copyright infringers based on DMCA notices sent? (Or at least “potential” copyright infringers, if you want to continue the charade of the wilfully blind.)

What if there were a website that maintained an informal ranking of which online service received the most notices, and also gave time to response, and time to takedown? Kind of like an meets Good Housekeeping for infringers? Which “digital native” amongst us could possibly object to consumer information being made available to “citizens of the 21st century” ? Maybe the site could also post a picture of the DMCA agents who failed to respond, kind of like (Maybe conveniently available on Google Street View.)

There’s actually nothing that would stop artists from developing such a service–aside from money, of course, and time taken away from diligently monitoring the Internet for other “citizens of the 21st century” who are infringing their work. You would think that the Copyright Office would want to maintain it, too, so they could see how effectively the DMCA notice and takedown system was working. Or maybe even the Congress might be interested?

In Los Angeles, the city health department gives restaurants a rating card that is posted on the front door of the establishment. If you don’t have an “A” on that card, expect to do some explaining to your customers.

It’s amazing how much of an effect a rating can have on the failure to comply with the law.

PS: Choppy, Directionless and Strident

October 25, 2009 Comments off

There are some books that I have seen frequently in book stores over the years that I know I will never read. Dianetics is one such book. I have no particular reason to read or not to read these books, but if I’m honest about it, I know that I’m not ever going to read them.

These are all books that One Ought To Read, if one wishes to be a Very Well-Rounded Person. I’m sure you could come up with your own list of books in this category. Another category of such books are the ones that are Just Too Absurd. Life of Brian would be one of these. The Companion to Oliver Stone’s “JFK” would be another or Zen and the Art of Black Helicopter Maintenance. A new addition I would make to my version of that list would be the latest by the “most prolific scholar in the history of copyright” (who is, in case you don’t know, Google VIP Patry. I think we can call him The Most Prolific Scholar for short, or perhaps “PS”).

From what I can gather, the upshot of PS’s book is that it is a hierarchical and status driven look at works of authorship and the laws that once protected them. According to PS, creators do not innovate, only innovators innovate, which is kind of a silly con if you remember things like jazz. But then jazz probably doesn’t count, because as we know art doesn’t scale.

Maybe multitrack recording might count? That at least involves a machine that has a carbon footprint, so Googlers should feel right at home. But wait–the innovation of multitrack recording (on which the entire modern recording industry is based, including Protools) is an invention generally attributed to…Les Paul. (For all you Silly Cons out there, and especially you Very Silly Cons, Les Paul was a…guitar player.) As usual with occupants of the Googleplex there are no dogs or actors allowed into the hierarchy so we will just define guitar player innovators out of the definition.

Now some may criticize me for only focusing on “bad” reviews–or as they may say in the Googleplex, “ungood”–and that may be, but PS has Google and all we have are each other.

Others have noticed the new one by PS, too. Tom Sydnor has a second installment of his “Worthless Book” review, an excellent critique of the PS book that is a delicious read, a fantastically 3 star feast for the truth.

And I’ve also read a PS review of interest by Jonathan Handel in the Los Angeles Times who observes: “Patry’s stature makes ‘Moral Panics and the Copyright Wars’ an ‘important’ book. Unfortunately, what the book delivers is a choppy and directionless narrative, sometimes illuminating but too often scattershot, unoriginal and strident.”

I don’t know as I agree that he’s “strident,” I probably would have said “oozing”. That’s what happens when the bile is so full and pungent it can’t quite get out quickly enough, it just kind of oozes into the sunlight like a vomitous marsh. But “directionless” sounds about right. Then again, not only have I not read the book, I know that I’m not going to read the book.

Just like I know I’m not going to read Dianetics.

Dan Clancy withdraws?

October 9, 2009 Comments off

Rumor has it that Dan Clancy has withdrawn from speaking at the Frankfurt Book Fair next week.

See “More Questions Than Answers on Google Books“: “Google’s Dan Clancy had patiently answered question after question regarding Google’s’ Book Search settlement with publishers and authors until late in the afternoon Friday, when he was finally left speechless [when a reporter] asked Clancy what kind of message was sent when Google decided to ‘copy first and answer questions later.'”

A fascinating article.

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