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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.]

It’s Time to Tell Them #IRespectMusic: Big Radio Starts the Anti-Artist Drumbeat with the Fake Local Radio Freedom Act Take 2

February 22, 2019 Comments off

Remember the Local Radio Freedom Act from last year?  Well, they’re back with a new LRFA (pronounced “screw you”).  This Congress can’t agree about much, but they can agree they want to keep screwing artists.

Here’s the deal.  LRFA is the Alinsky-style straw man–demonize your opponent as something you want people to believe your opponent to be (a “tax” for example), then perpetuate that mischaracterization no matter what.  (In the current parlance, something pretty close to gaslighting fake news.)

This LRFA legacy “nonbinding resolution” has become an evergreen in the arsenal of the NAB’s gaslighting efforts to perpetuate exploitation of recording artists for one reason and one reason only–because they can.  The NAB gets a bunch of Members to sign up, doesn’t tell them the truth about what they signed, and hope that nobody tells them otherwise until it’s too late.

Here’s a list of signatories at the end of this post in case you want to tell them #irespectmusic, why don’t you?  Sign the petition at I Respect Music.org

More on this to come, but the headline is that Big Radio is back with a new LRFA, H.Con.Res. 20 in the House and S.Con.Res.5.

CONCURRENT RESOLUTION

Supporting the Local Radio Freedom Act.

Whereas the United States enjoys broadcasting and sound recording industries that are the envy of the world, due to the symbiotic relationship that has existed among these industries for many decades;

Whereas for nearly a century, Congress has rejected repeated calls by the recording industry to impose a performance fee on local radio stations for simply playing music on the radio and upsetting the mutually beneficial relationship between local radio and the recording industry;

Whereas local radio stations provide free publicity and promotion to the recording industry and performers of music in the form of radio air play, interviews with performers, introduction of new performers, concert promotions, and publicity that promotes the sale of music, concert tickets, ring tones, music videos and associated merchandise;

Whereas Congress found that “the sale of many sound recordings and the careers of many performers benefited considerably from airplay and other promotional activities provided by both noncommercial and advertiser-supported, free over-the-air broadcasting”;

Whereas local radio broadcasters provide tens of thousands of hours of essential local news and weather information during times of national emergencies and natural disasters, as well as public affairs programming, sports, and hundreds of millions of dollars of time for public service announcements and local fund raising efforts for worthy charitable causes, all of which are jeopardized if local radio stations are forced to divert revenues to pay for a new performance fee;

Whereas there are many thousands of local radio stations that will suffer severe economic hardship if any new performance fee is imposed, as will many other small businesses that play music including bars, restaurants, retail establishments, sports and other entertainment venues, shopping centers and transportation facilities; and

Whereas the hardship that would result from a new performance fee would hurt American businesses, and ultimately the American consumers who rely on local radio for news, weather, and entertainment; and such a performance fee is not justified when the current system has produced the most prolific and innovative broadcasting, music, and sound recording industries in the world: Now, therefore, be it

Resolved by the House of Representatives (the Senate concurring), That Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings.

Here’s the list of Members of Congress who want to keep screwing artists:

Ms. Castor of Florida (for herself, Mr. Conaway, Mr. Butterfield, Mr. Johnson of Ohio, Mr. Gianforte, Mr. McEachin, Mr. LaMalfa, Mr. Rogers of Kentucky, Mr. Gosar, Mr. Weber of Texas, Mr. Graves of Georgia, Mrs. Dingell, Mr. Moulton, Mr. Babin, Mr. Young, Mr. Comer, Mr. Jordan, Mr. Bost, Mr. Kelly of Pennsylvania, Mr. Cole, Mr. Keating, Mr. Flores, Mr. Hagedorn, Mr. Crawford, Mr. Palazzo, Mr. O’Halleran, Ms. McCollum, Mr. Ryan, Mr. Kinzinger, Mr. Collins of New York, Ms. Stefanik, Mr. Turner, Mr. Olson, Mr. Allen, Mr. Chabot, Mr. Massie, Mr. Hill of Arkansas, Mr. Westerman, Mr. Upton, Mr. Duncan, Mr. Walker, Mr. Rodney Davis of Illinois, Mr. Rush, Mr. Kilmer, Mr. Walberg, Mr. Gonzalez of Texas, Mr. Kind, Mr. Lynch, Mr. LaHood, Mr. Grothman, Mr. Wilson of South Carolina, Mr. Latta, Mr. Williams, Mr. Budd, Ms. Kuster of New Hampshire, Mr. Long, Mr. Bilirakis, Mr. Arrington, Mr. Hice of Georgia, Mr. Shimkus, Mr. Zeldin, Mr. Meadows, Mr. Mullin, Mr. Emmer, Mr. Lawson of Florida, Mr. Pallone, Mr. Clay, Mr. Posey, Mr. Newhouse, Mr. Womack, Mr. Walden, Mr. Hastings, Mr. David Scott of Georgia, Mr. Harris, Mr. McKinley, Mr. Rouzer, Mr. Nunes, Mr. Lamborn, Mr. Calvert, Mr. Rogers of Alabama, Mr. McHenry, Mr. Marshall, Mr. Buchanan, Mr. Davidson of Ohio, Mr. DeFazio, Mr. Mooney of West Virginia, Mr. Loebsack, Mr. Carter of Georgia, Mr. Cuellar, Mr. Duffy, Mrs. Brooks of Indiana, Ms. Foxx of North Carolina, Mrs. Kirkpatrick, Mr. Brown of Maryland, Mr. Gibbs, Mr. Wenstrup, Mr. Brendan F. Boyle of Pennsylvania, Mrs. Rodgers of Washington, Mr. Simpson, Mr. Dunn, Mr. Cook, Mr. Mitchell, Mr. Stivers, Miss González-Colón of Puerto Rico, Mrs. Beatty, Mr. Evans, Mr. Brooks of Alabama, Mr. Fortenberry, Mr. Payne, Mr. Luetkemeyer, Mr. Yarmuth, Mr. Courtney, Mrs. Radewagen, Mrs. Bustos, Mr. Banks, Mr. Gallagher, Mr. Smith of Nebraska, Mr. Kelly of Mississippi, and Mrs. Wagner)

And here’s the list of Senators:

Mr. Barrasso (for himself, Mr. Heinrich, Mr. Boozman, Ms. Collins, and Mr. Udall).

 

Content Creators Coalition & MusicAnswers Applaud the Revision and Passage of the Music Modernization Act by the Senate Judiciary Committee — Artist Rights Watch

June 28, 2018 Comments off

PRESS RELEASE

[Washington, D.C.] – The Content Creators Coalition and MusicAnswers released today the following statement on the Senate Judiciary Committee’s vote in support of the Music Modernization Act.

C3 and MusicAnswers applaud the Senate Judiciary Committee’s vote to advance the Music Modernization Act, while incorporating key changes we had urged to make the legislation stronger, more transparent, and more equitable.

The MMA will strengthen the music ecosystem and all its participants, including songwriters, publishers, performing rights organizations, artists, record companies, music services and fans. It ensures digital music services will pay fair royalties for every song they stream, establish a better standard for determining royalty rates, and eliminate some out-of-date provisions of the PRO consent decrees. In return, digital music services get certainty, legal protection, and new streamlined tools to bring more music to more people at lower cost.

It’s a reasonable bargain, and, therefore, we have consistently and publicly supported the basic construct of the legislation.

We are especially grateful that the Senate Judiciary Committee, led by Chairman Chuck Grassley (R-IA) and Ranking Member Dianne Feinstein (D-CA), was willing to engage with our organizations on ways to improve the bill and include in the Managers Amendment approved today key protections for creators and the public.

As a result, the MMA now provides greater transparency, including rigorous audits to make sure that royalties are flowing to the correct parties, a commitment to educating all music creators about their rights and the royalties due them collected under the new Music Licensing Collective (MLC), a requirement to study and follow best practices in order to find the proper owners of unclaimed royalties, and increased clarity regarding who owns the data generated by the new system.

While we support the legislation and are proud of the changes we have achieved as artist and songwriter advocates, we continue to have concerns about three key issues: whether the entity that is designated as the MLC is being foreordained by the bill and precludes competition with the MLC; the composition of the Board of Directors of the MLC, which is unduly tilted towards major publishers; and the methods used to distribute royalties from works where even using best practices the authors could not be identified.  We urge the full Senate and the House to consider further improvements to those flawed provisions and we call on the Copyright Office to ensure in implementation of the final legislation that no stakeholder group can dominate the MLC and that all royalties are distributed in a fair and equitable and non-self-interested manner.

The process leading to this moment has been strong in many ways. But it has also included its fair share of divide-and-conquer tactics and efforts by powerful incumbent forces to crowd out grassroots organizations like ours and to divide the music community within itself.  We believe that we are strongest when we respect and support each other – a lesson too many in our business still have yet to learn.

We are deeply appreciative of the partnership c3 and MusicAnswers have forged. Together, we represent thousands of writers, producers, performers, and music business professionals, and over the past few weeks we have worked steadfastly to pursue improvements in the MMA. We look forward to future collaboration and welcome the involvement of other collaborative groups and individuals.

via Content Creators Coalition & MusicAnswers Applaud the Revision and Passage of the Music Modernization Act by the Senate Judiciary Committee — Artist Rights Watch

Must-Read by @LizPelly: Discover Weakly: Sexism on Spotify

June 8, 2018 Comments off

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Liz Pelly demonstrates how Spotify perpetuates gender stereotypes.  Spotify–where A&R stands for “Algorithms and Redirects .” Why are we helping these people again?

“Spotify has actively steered its listeners away from the album as a format and toward playlists. This serves Spotify’s interests: a music culture dependent on playlists is dependent on Spotify, whereas a music culture dependent on albums is dependent on record labels. As Spotify vies to become more powerful and influential than labels, emerging as the music industry’s new center of power, one of its primary strategic focuses has been on playlists—curated by humans, algorithms, and sometimes a hybrid approach—making the process of navigating its platform more convenient and ever more personalized.

As a result, Spotify’s most popular playlists have emerged with outsize influence. After I created a new Spotify account earlier this year for this very listening experiment, when I clicked the “albums” tab on my brand-new account, Spotify responded, “Your favorite albums will appear here,” followed by, tellingly, “Go to your Browse page to find amazing playlists for every mood and moment.” A small but powerful gesture: at every turn the platform encourages playlists over albums. This, of course, raises several concerns regarding how fans relate to music and even this music’s context. Which is all to say: in the realm of Spotify, playlist placement matters. A lot.”

Read the post on The Baffler (h/t Artist Rights Watch)

@MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

May 18, 2018 Comments off

Otis Redding sat on the dock of the bay in 1967. Roy Orbison sang for the lonely in 1960. Miles Davis was kind of blue in 1959. These artists’ iconic recordings live on today and are frequently played across streaming services, satellite radio, and FM radio. Tell Congress to make Big Tech pay its fair share.

via @MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

@Smokey_Robinson Gives Moving Defense of Artist Rights at @SenJudiciary Hearing on MMA

May 16, 2018 Comments off

Smokey Robinson is one of the best witnesses for artist rights.  Mr. Robinson was on stage yesterday in the clinch at the Senate Judiciary Committee hearing on the Music Modernization Act, the new omnibus package that finally includes all of the pre-72 protections and closes that loophole for Big Tech.  (Read his written testimony here.)

The records of the 50’s and 60’s aren’t called “classics” because of their age. They’re called classics because of their greatness. They still resonate today. They add value to our lives and bring people together. They define America.

While Mr. Robinson’s written testimony was eloquent and inspiring, where he really showed his genius was in his ability to synthesize key issues and think on his feet in front of both the cameras and the U.S. Senate.

Watch this clip in which he corrected DiMA head Chris Harrison about a cavalier statement regarding “artists can always sue.”  This is what these people always say, and too often our Congress full of lawyers gets drawn into the “lawsuit as remedy” thinking–which most of the time is a dodge.  I’d even go so far as to say it’s laziness.

As Mr. Robinson pointed out so precisely, artists and songwriters can hardly ever sue because they can’t afford to hire a lawyer or even investigate their rights.  So if that’s the result–and a good justification for the copyright small claims court–that’s no remedy at all and results in an income transfer.  It’s called YouTube, Twitter, Facebook–the biggest income transfers of all time.

Fortunately, Texas Senator John Cornyn, a supporter of the pre-72 fix, gave Mr. Robinson a chance to hit it out of the park and he took it.  Smokey the Closer.

If there ever was a better defense of the need for statutory damages and attorneys fees (the “private attorney general” clause of the Copyright Act), I haven’t heard it.

And while no one said it at the hearing and taking nothing away from Mr. Robinson, it must be said that the only reason that this bill is where it is, the only reason that the pre-72 and mechanical licensing fixes are where they are, is because of Howard Kaylan & Mark Volman, David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music and the lawyers like Henry Gradstein (both Turtles and Ferrick class actions), Sanford Michaelman and Richard Busch.  And that’s the fact.

@agraham999: ‘BIG DATA IS ABOUT TO BECOME A VERY BIG PROBLEM FOR THE MUSIC INDUSTRY.’ — Artist Rights Watch

May 14, 2018 Comments off

One of the big pitches we have heard for years from digital services is how they can provide artists with data resources to connect with fans.  That is–everything except a meaningful way to connect with the fans that the artist isn’t already driving to the service in the first place.

Of course, the most laughable part of this pitch is that somehow knowing you’ve been streamed in Shoreditch, Tyler, Yellowknife and Brooklyn is going to be meaningful to a talent buyer, even if that talent buyer books in those towns.  Yet we frequently see journalists dutifully spout this received wisdom as if it meant something other than trying to gin up a reason to pay artists and songwriters a still lower royalty to offset the cost of rent at World Trade Center.

Alan Graham’s recent post in Music Business Worldwide has put his finger right on another problem that defies the conventional wisdom and Spotify narrative–big data ain’t all it’s cracked up to be and may be going the way of Cambridge Analytica.

Big data was a solution pitched and sold to the music industry as a panacea to fan engagement problems. While big data seems very attractive, using personal data and profiling fans may in fact turn out to be, like oil and plastics, already outdated and toxic….

In a 2014 New Yorker article, Spotify was keenly aware of the power of such data:

All this, Ek explained, will help Spotify to better program the “moments” of a user’s day. “We’re not in the music space—we’re in the moment space,” he told me. The idea is to use song analytics and user data to help both human and A.I. curators select the right songs for certain activities or moods, and build playlists for those moments. Playlists can be customized according to an individual user’s “taste profile.” You just broke up with your boyfriend, you’re in a bad mood, and Justin Timberlake’s “Cry Me a River,” from the “Better Off Without You” playlist, starts. Are you playing the music, or is the music playing you?

…In fact, when you agree to use Spotify, third-parties who install the Spotify widgets on their sites may also send data as to which page on what site you are visiting.

With this knowledge, just how comfortable are you knowing that Facebook is now contextualizing your private chat messages to suggest music on Spotify?

via @agraham999: ‘BIG DATA IS ABOUT TO BECOME A VERY BIG PROBLEM FOR THE MUSIC INDUSTRY.’ 

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