Archive
Google Says Don’t Break the Internet–Again–this time to Oracle at SCOTUS
His Master had told him to call for help should a Wolf attack the flock, and the Villagers would drive it away. So now, though he had not seen anything that even looked like a Wolf, he ran toward the village shouting at the top of his voice, “Wolf! Wolf!”
As he expected, the Villagers who heard the cry dropped their work and ran in great excitement to the pasture. But when they got there they found the Boy doubled up with laughter at the trick he had played on them.
The Boy Who Cried Wolf, Aesop’s Fables No. 210
Quick–how many times have you heard Google try to beat back challenges to their bad behavior with the old “Don’t Break the Internet” meme? We’ve seen it many times, of course, but repetition doesn’t make it right and it definitely doesn’t make it true.
The EU Copyright Directive is a “Looming Catastrophe”
If there’s legislation, a lawsuit or some policy action that Google finds a commercial threat to their vast riches, especially including ill-gotten gains, it’s only a matter of time until they summon the academic and NGO chorus of Cassandras to bemoan, wail and rend garments over the single most important existential threat to humanity since the plagues of Egypt–breaking the Internet.
Breaking the Internet takes a few different forms including crushing innovation (or in the Googleplex, stealing everything that they can get away with). And yet after a decade or more of this bunk, the Internet still trundles on, some how squeaking to get by despite Google’s breathless warnings. Not to mention the multi, multi million dollar megaphone they use to broadcast their message far and wide from the halls of Congress to the children of Members of the European Parliament.
Google’s at it again, this time as part of the litigation involving its theft of copyrights from Oracle. The problem for Google is that they can’t just run roughshod over Oracle the way they can practically everyone else, including governments. We should be paying attention because for once Google may actually get punished in a way that hurts unlike the multi-billion fines in Europe that they absorb as a cost of doing business.
Here’s the story this time. Google was getting their lunch eaten by Apple’s iPhone and needed to get Android up and running fast. Google wanted to license a bunch of Java applications that were owned by Oracle. You may say, what about Sun Microsystems which created Java? Correct, but Oracle bought Sun so that’s how Oracle got involved. And extra points if you remember who used to work at Sun Microsystems? That’s right–UNCLE SUGAR! Eric Schmidt his bad self. Strange coincidence, yes? The same Uncle Sugar who mysteriously resigned as Google’s executive chairman. Uncle Sugar says, “Me, too!” Boy we miss you Unk.
The masked man says “Me, too!”
But I digress. So Google supposedly creates some of its own Java-related software. Let’s get this straight–Google could have developed their own platform with identical functions to Oracle’s Java as did Apple and Microsoft. But–and this is really what I think the case is all about–Google made verbatim copies of several Java APIs that they couldn’t reverse engineer…sorry, I mean work around. This all to avoid getting a license. And you know how they argue that they got around those verbatim copies?
You guessed it–fair use. Laughable, but no more laughable that Google’s whack a mole DMCA fake license practices they are fighting us on with their opposition to the CASE Act based on..you guessed it, fair use. Breaking the Internet, etc. It’s funny until you realize they are not kidding.
Google lost twice against Oracle in the case, but appealed its most recent failure to the Supreme Court of the United States, or “SCOTUS” as it’s known. So Google’s big strong line in their papers is this:
Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications….[If Google loses the case, the ruling] will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.
Yep…law and order every time, marshal. Google wants to wrap itself in the flag of those plucky “developers” who are just incapable of speaking for themselves so Google must do it for them as well as truth, justice and the American Way. This is about as believable as Google positioning themselves to be on the side of artists because they paid some YouTubers to make propaganda against the European Copyright Directive.
Will innovation survive? Will the Internet be broken? Or did the boy cry wolf one too many times? Will justice be done for once and done to Google?
Stay tuned. There may be another Wreck-It Ralph sequel in the works .
The First Rule of Lawfare: Is Google’s Active Measures Campaign on Article 13 a Trial Run for Election Meddling by a US Non-State Actor?
Well, I wake up in the morning
Fold my hands and pray for rain.
I got a head full of ideas
That are drivin’ me insane.
It’s a shame the way she makes me scrub the floor.
I ain’t gonna work on Maggie’s farm no more.
From Maggie’s Farm, written by Bob Dylan
Google on the Back Foot with the Copyright Directive
Google and Facebook recently suffered a lobbying debacle in Europe over the European Copyright Directive. That legislation cuts back the European version of the what Americans call the DMCA safe harbor. A triumph for artists, Google’s European loss was the worst lobbying defeat that Silicon Valley has been handed in a long time—at least since the SESTA legislation cut back another safe harbor in the U.S. So it shouldn’t be surprising that YouTube’s CEO is trying to influence YouTubers to lobby on behalf of Big Tech—Google desperately needs some human shields, which is exactly what participating YouTubers would be. Once again scrubbing the floor for the House of Google.
At its core, the Copyright Directive cuts back the ability of services like YouTube to profit from infringing activities on their platforms. One would expect corporations profiting from that safe harbor to lobby against it, just like supporters lobbied for it. But Google and Facebook went well beyond simply lobbying by attempting to sow discord and undermine democratic institutions.
And they got caught—red handed. They were caught conducting active measures such as spamming, bot farming and overt messaging campaigns calculated to undermine the legislative process in the European Parliament. You can read about it in a number of leading European publications starting with investigations by both the Times of London and Frankfurter Allgemeine Zeitung.
Google’s Article 13 Lobbying Campaign from Volker Rieck
Most importantly Google supporters like the Pirate Party promised—or more accurately “threatened”—that “constituents” would show up to protest, and very few did. So Google’s active measures campaign lacked a human face—the key component that brought it down.
German MEP Helga Truepel explained why the plenary vote on the Copyright Directive was so lopsided against Google at a press conference : “…[It was] due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally pissed off, cause in the streets there were a maximum 500-800 people last Sunday [at Pirate Party protests]… and we were only deleting emails for weeks now.”
Plan B and the First Rule of Lawfare
Fast forward to today: Google needs a Plan B. Desperately.
Google’s problem today is the Members of the European Parliament (and some members of the UK Parliament) are wise to their jive after the plenary vote. My bet is that story is not yet concluded as it merits a criminal investigation. Because when a corporate covert influence operation is discovered and attribution is certain, it’s hard to put that genie back in the bottle (just like Internet piracy).
But while Google desperately needs a Plan B to retain its safe harbor, publicly acknowledging its influence operation is politically awkward, bread crumbs or no. Like fight club, the first rule of lawfare is that it does not exist.
Google and Facebook are struggling to find that Plan B as the EU lawmaking process continues with the “Trilogue”, the next step to the Copyright Directive becoming national law in the European Union. Google seeks another way to overwhelm the system by finding human shields to mingle with the bots. And that’s where YouTube CEO Susan Wojcicki comes in with her recent appeal to YouTubers to protest the Directive.
Ms. Wojcicki may want us to overlook that Google just got caught running active measures against a democratic institution to meddle in the legislative process on another continent. But members of the European Parliament have not forgotten. She may be able to pull the wool over YouTuber’s eyes, but it just makes her human shields look even more duped and her methods look especially more alarming—if not terrifying—in a post-Cambridge Analytica world.
Safe Harbors, Addiction and Human Shields
Don’t underestimate how important these safe harbors are to Google, Facebook and its fellow monopolists. They were ready to be on the wrong side of child sex trafficking legislation to preserve their other safe harbor (Section 230 of the “Communications Decency Act”)—that surely strained Sheryl Sandberg’s performance as Wendy to Mark Zuckerberg’s “boy who wouldn’t grow up.” These safe harbors are crucial to Google, Facebook and Twitter—because it protects them as they snort up the addictive content and reward (if not sell) views, likes, follows, and “engagement.”
Remember—YouTube is not in the music business, or even in the content business at the end of the day. Google and Facebook are in the addiction business.
In particular the behavioral addiction business (see Irresistible by Dr. Adam Alter). If you’re in the addiction business, safe harbors are very, very important. Just ask the narcotraficantes. And don’t forget—the U.S. Attorney for Rhode Island investigated Google for violations of the Controlled Substances Act that resulted in a $500,000,000 fine and a non-prosecution agreement (not to mention a shareholder lawsuit).
Straight Outta Minitrue
But I suspect it is the embarrassing lack of human shields cited by MEP Helga Truepel that drove Ms. Wojcicki to issue a meandering tl;dr blog post trying to convince “YouTube creators” to fall in with the company line on the Copyright Directive.
Ms. Wojcicki manages to get through her entire appeal without coming clean about the point of the Copyright Directive—YouTube profits from piracy through the safe harbor that the Directive would cut back, especially Article 13. (There’s way more to the Directive than Article 13, but that’s another story.)
She would have YouTubers sign up to the “sky is falling” claims that “the unintended consequences of Article 13 will put [the highly profitable YouTube] ecosystem at risk”. Why? Because “[i]t would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content.”
That is quite a leap—how is it that “smaller” YouTubers would be such a big problem? After all of YouTube’s “advertiser friendly” changes that severely hurt the earning power of many YouTubers, does Ms. Wojcicki really think that YouTubers—a pretty clever bunch on the whole it must be said—are so gullible that they will miss the irony?
And then she says this: “We are committed to working with the industry to find a better way. This language could be finalized by the end of the year [in the Trilogue], so it’s important to speak up now.”
Given the breadth of the coalition supporting the Copyright Directive and opposing Google and Facebook, it’s not immediately clear who is “the industry.” I can tell you that if she includes the music industry in that reference, I can save her some time.
Nobody in “the industry” trusts Google, YouTube, Facebook or Ms. Wojcicki. [Although the beachhead that Google scored with the MMA may make life interesting for publishers and songwriters wishing to protest against the hand that feeds the mechanical licensing collective.]
And, frankly, I’d be surprised if many YouTubers trust her either. Based on the vote supporting the Copyright Directive, there’s a wide swath of MEPs that have severe misgivings about all these Silicon Valley companies trying to run roughshod over Europeans. And then there’s the two and probably soon to be three competition prosecutions against Google by the European Commission. That’s a thing.
Ms. Wojcicki hasn’t learned (and I predict won’t ever learn) a simple truth that every record company and music publisher knows—don’t jack with the talent. YouTube jacks with the talent frequently, so it’s unclear how the talent is going to react to this latest request that they take time out of their day to help YouTube.
It’s not a good look and it will come back to bite. YouTube has been profiting from the safe harbor for its entire existence and wouldn’t know how to make an honest buck if their lives depended.
Is Election Meddling Next on Google’s Agenda?
Before Ms. Wojcicki tries to rally YouTubers as human shields to support Google’s billions on her bot farm, she needs to get her own house in order.
And members of the European Parliament need to get a grip on these active measures campaigns before Google goes beyond “lobbying” on an issue vote and moves on to meddling in campaign outcomes in a few months when the European Parliament stands for election.
In a post-Cambridge Analytica world, we all know it’s a short step from undermining opposition on a particular issue to undermining the election of a particular candidate. And Google is just as capable of meddling as any state actor if not more so.
@brentknepper: No One Makes a Living on Patreon — Artist Rights Watch
This is consistent with the findings in the Austin Music Census–Pandora’s infamous “musician middle class” has been hollowed out and unsigned artists fall into poor and poorer
In 2016, Patreon boasted that 7,960 users were now making over $100 a month, which struck me as such an insignificant monthly income to brag about. Around the same time, the company reportedly had 25,000 creators, meaning only 31 percent of Patreon’s users were making over a hundred bucks….Even if creators are struggling to make money, investors see Patreon as a goldmine. In September, Patreon announced a $60 million dollar investmentfrom venture capital firms, bringing its total funding to $107 million, according to Crunchbase.
via @brentknepper: No One Makes a Living on Patreon — Artist Rights Watch
Guest Post by @schneidermaria: Google’s Self-driven “Carma”
[Editor Charlie sez: We’re pleased to publish this guest post written by Maria Schneider, a five-time GRAMMY-winning composer and bandleader, a board member of the Council of Music Creators, and an active supporter of MusicAnswers.org. Her GRAMMY awards including two 2016 GRAMMY Awards, Best Arrangement, Instruments and Vocal for “Sue (Or in a Season of Crime)” recorded by the Maria Schneider Orchestra and David Bowie, and Best Large Jazz Ensemble Album for “The Thompson Fields”. Maria’s posts on MTP can be found here.]
Written by Maria Schneider
It’s the height of irony that Google finds itself in court suing Uber over the piracy of documents and creative works it believes should be protected as its intellectual property (IP). The lawsuit is a battle royale between two mean-spirited data lords, each wrestling to secure its world domination over self-driven cars.
My short summary of their self-driven car case goes like this: Google offered Anthony Levandowski a whopping 120 million dollars to head their self-driving car development. Loyalty not being his strong suit, Lewandowski left Google after a few short years, and not before pirating 14,000 drawings, plans, and other creative works Google had spent a ton of time and money to create. He then used those 14,000 stolen digital files to start his own company, Otto. Within a year, Uber made Levandowski insanely rich when it bought Otto from him for 680 million dollars.
Google alleges that Uber and Levandowski have “illegally downloaded” Google’s creative works and distributed them to others. Google is outraged to find its valuable IP in the hands of hundreds of Uber engineers and employees, none of whom have any obligation to Google. Realizing that their valuable creations will now surely spread to others and devalue Google’s investment even further, Google’s attorney, Mr. Verhoeven, insists that the damage to Google is “irreparable,” exclaiming, “you really can’t put the toothpaste back in the tube!”
Ah yes, karma is a bitch.
Whatever sting Google is feeling, it’s but a mosquito bite compared to the wounds Google has inflicted upon creative artists: composers, songwriters, recording artists, authors, filmmakers, journalists, cartoonists, photographers, the list goes on. It’s an incalculable number of individual livelihoods, deeply damaged, if not destroyed by IP theft, not only in the United States, but worldwide, all at Google’s greedy hand.
If Google’s claims come to bear in court, Levandowski could go to jail. Uber’s attorneys and managers could be fired for buying what was obviously “hot merchandise.” And Google’s attorneys and management will surely be reprimanded for not having better protections in place to protect Google’s valuable IP. But should anything about all of this surprise Google? The highly coveted, wildly overpaid man-boy, Levandowski was just a bad apple that didn’t fall far from the tree. He was only paying forward the general culture Google itself created – a culture Google has imposed on the entire world through its monopoly on information, its massive market power, and its incessant lobbying to destroy others’ intellectual property rights for its own financial gain.
Let’s go back to 2006. Back then, Google was kicking the tires of YouTube, trying to decide if Google should acquire it. In trying to make that decision, these following statements were made by Google’s management:
“I can’t believe you’re recommending buying YouTube . . . they’re 80% illegal pirated content.”
YouTube is a “rogue enabler of content theft.”
“YouTube’s business model is completely sustained by pirated content.”
Even armed with that corporate knowledge, Google gave a big thumbs-up to what they clearly recognized as theft, and went ahead and bought YouTube for 1.65 billion dollars. And since then, Google has ridden the YouTube train, loaded with its massive cargo of stolen goods, to become the most powerful company the world has ever known.
Google’s culture of disrespecting and exploiting other people’s IP is finally coming home to roost. With some sort of perverse poetic justice, Levandowski has now done unto Google what Google has done unto others.
Buddha offers the world very powerful words about bad karma: “One who previously made bad karma, but who reforms and creates good karma, brightens the world like the moon appearing from behind a cloud.”
It’s time for gargantuan data lord companies like Google to turn away from darkness and reform, to generate a different karma that brightens the world around them. It’s time for these companies to stop enabling piracy, to stop making revenue off it, and to stop making revenue off of terrorism, pornography, and fake news, as well. It’s time they pay a fair amount to acquire content, and pay fair taxes on the valuable data they extract from their billions of worldwide users. It’s time these companies accept responsibility for the daily crimes that occur on their platforms, instead of hiding behind their weaselly, “we’re not accountable under the DMCA” approach.
It’s high time these companies stop “moving fast and breaking things,” and start driving a little slower and more respectfully, obeying the basic rules of the road. It’s time for them to make a complete U-turn on our information highway, and steer in the direction of nurturing an internet community based on respect and fairness. More than needing judges, regulators, lobbyists, lawmakers, or even “moonshots” like self-driving cars, what companies like Google most need, is a shiny brand new karma.
_________
To see more of Maria Schneider’s writing, go to Advocacy for Musicians at Maria Schneider’s Wikipedia page.
Jean-Michel Jarre Identifies the Value Transfer
Jean-Michel Jarre
Composer and performer Jean-Michel Jarre put his finger right on the right approach to online policy in a recent speech to policy makers at an SIAE event in Italy. (Jean-Michel is the current president of CISAC.) Jean-Michel gave his own interpretation of the “value gap” calling it instead a “transfer of value” which is exactly what it is. And when you consider who is the greatest offender in the “transfer of value” ecosystem, it’s not AT&T or Verizon, it’s not Time Warner or even Cox–it is Google, and, of course, Facebook that is the worst of the worst. And while Jean-Michel didn’t call out Google or Facebook by name, the Leviathans of Silicon Valley were lurking behind every word.
MTP readers will remember that I have been emphasizing the income transfer in the “digital economy” or what Lessig calls the “sharing economy” or what we call “getting Googled.” This income transfer is based on the idea that the people who do the work get little or none of their labor value. This income transfer occurs on pirate sites when artists’ work is literally stolen and distributed in ad supported piracy with advertising sold by the biggest advertising networks.
The income transfer is not difficult to see–the songs, recordings, movies, television programs or books are simply stolen and posted on ad supported sites that directly compete with legal sites. The value of these works are converted into advertising revenue by unscrupulous brands and ad networks and published on pirate sites with that value sucked out by everyone involved.
The fact that these sites continue to flourish is not only attributable to a perverse interpretation of safe harbors–these site flourish because of gutless national governments that allow the income transfer to continue, Kim Dot Com notwithstanding.
The biggest offender, though, is the one search engine that drives the most traffic to these sites (where they are also found on the other side of the transaction selling advertising)–Google. Google is an integral part of the income transfer economy, receiving over 1 billion job-killing take down notices in the last 12 months.
The next biggest offender–and one that many artists are not really focused on–is Facebook. Whatever we may think about Google’s role in the income transfer economy, at least Google acknowledges that it needs a license for its music properties like YouTube. Facebook is entirely unlicensed and operates its own walled garden pirate operation.
Jean-Michel’s speech (as quoted in Complete Music Update (but without the snark)) sums it up:
[T]he truth is that the creative economy, for the creators whose works are driving it, is still under-performing. We need to fix flaws in the environment in which creators are working. And if we do, the economic benefits will be enormous, leading to further growth and many more jobs.
The biggest flaw I want to highlight today is what is known as the “transfer of value” or the “value gap.” To survive and thrive, creators must be fairly paid for their works. Yet today, some of the world’s major digital music services are building large businesses on back of creativity while paying next to nothing in return.
This is not fair. It is a market distortion. And it is holding back growth in the creative sectors.
Bingo.
One way to fix this is not by trying to get rid of the safe harbor which solves a problem by providing a little latitude to reasonable people acting reasonably. To take one example, the ISPs participating in the Copyright Alert System should not be lumped in with Google. Let’s face it–Google is in a class of its own and should not be entitled to benefits for which Google bears no burden.
There is no part of Google’s business that has greater resources available to it than search. Mrs. Palsgraf take note–if Google search attracts over 1 billion take down notices a year, then you can be sure of one thing–search is working exactly as planned, and the plan is to keep transferring the value of everything the network touches including the labor value of every artist and songwriter in the history of recorded music.
Facebook is also working exactly as planned and rips off songwriters, artists, publishers and labels all the live long day–not to mention selling artists names as advertising keywords which is the ultimate insult-to-injury commoditization.
Jean-Michel is exactly right. This job-killing market distortion must be fixed.
Google and Amazon Leverage Copyright Loophole to Use Songs Without Paying Songwriters
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.
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
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.
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