Archive for the ‘News from the Goolag’ Category

Must Read Guest Post by @kerrymuzzey: YouTube’s Latest Deceptive Tactic

August 14, 2019 Comments off

[We’re thrilled to have a chance to publish an important Twitter thread by composer Kerry Muzzey that crystalizes a number of phenomena:  How Kerry caught YouTube using Content ID as a tool to extend the period of time that they can profit from infringement (or the “piracy profit window”), how draining it is for indies to chase YouTube (the “ennui of learned helplessness”), and how the cost of chasing YouTube reduces (or erases) any income from the video monopolist (the “Great Streaming Disappointment”). Kerry also provides a timely illustration of both why we need copyright small claims and one reason Google is sending in their proxies to fight it.  We appreciate Kerry giving us permission to post his thread and for being “here for the long haul”.]

I’m an indie guy.  I would love to just spend my time making more music, pitching, demo’ing for jobs. But like all indies, I have to make a choice—do I let YouTube and others just rip me off or do I try to stop it despite the burdens.

Here’s a new YouTube tactic that I first thought was a mistake when it happened recently, but they tried it again today, so now I think it’s pretty much just “the new stall tactic.” 

I recently found a bunch of unlicensed uses of my music on a Chinese broadcaster’s channel: these were TV shows where my tunes were used as underscore and then the series were put on YouTube and monetized. 

It took a couple years for Content ID to locate these uses and  during that time both YouTube and the broadcaster were able to co-monetize a couple million views of these shows. 

When I caught on to what was happening, I did my takedowns through the Content ID dashboard (meaning that YouTube itself located the uses and presented them to me in my Content ID dashboard) but they didn’t process my takedowns, which was weird.

I emailed YouTube Copyright (there are no names and no direct contacts at Copyright/Legal & you can’t get a name or direct contact person).  “YouTube Copyright” said they needed confirmation of the titles of my works because there was something wrong with my metadata with these particular titles in Content ID. 

Spoiler alert: there was nothing wrong with my metadata: these same works have been active just fine for 6.5 years now, and suddenly when I have claims against a massive China broadcaster YouTube finds there’s a problem with the accuracy of my titles & my metadata when they never have before?? 

Back to my claim—the Music Department at YouTube confirmed that my metadata was fine and accurate after all, and deferred to YouTube Copyright. I sent YT Copyright my copyright registrations for the works in question, reaffirmed that my metadata was fine and reaffirmed the accuracy of my claims: 24 hours later those infringing videos finally came down. 

I thought this was a one-off thing: a glitch. Until this morning when I got a batch of the same emails  from YouTube Copyright saying that there was a problem with my titles and metadata relating to the particular songs that I had struck on another Chinese broadcaster yesterday: videos that have a collective 4,000,000 heavily-monetized views on them from a different one  of China’s largest broadcasters.

But there’s nothing wrong with my metadata or my titles.  These works have been just fine since Feb 2013. So suddenly, 6 years later, there’s a problem with these songs…on the same day when I catch a huge TV network in China having used my music in their shows that were then put on YouTube and co-monetized by YouTube for 2.5 years to the tune of 4,000,000 views, with forced pre-roll ads, forced intermittent ad breaks, bannering, and video-adjacent page advertising, all on a channel in China that has 3,500,000 subscribers and more than 400,000,000 channel views on it. 

I just replied to all of their “problem w/title+metadata” emails with my copyright registrations attached and a re-affirmation of my claims and asked them to lay off the stall tactics and just process my takedowns. Which is NOT gonna go over well with this heavily-monetized channel in China and they’ll probably falsely counter-notify on everything because that’s what usually happens with China. 

But you know what? YouTube has a China problem. And they know it. And they look the other way because they can make a ton of money on those infringing videos. 

The asterisk here, and the “watch this space” moment is something I’ve long suspected and now feel like must be true: YouTube says that it has the same detection thresholds for music in Content ID worldwide, but I don’t believe it.

I think that my continuing discovery of my music in these ex-US programs, years after the fact and only after millions of monetized views have happened, is building up a body of proof towards that theory. 

And if that’s the case – YouTube has a problem.  What happens if YouTube tightens detection thresholds in big ad-sales territories like China with major broadcasters for the purpose of avoiding detection so as to increase ability to monetize what they know is content with 100% unlicensed music? Then YouTube is violating the DMCA and eventually they’re gonna get busted. 

So if you’re a tech person or journalist who’s interested in this sort of thing, here’s the question I would pose directly to YouTube the next time you talk to one of their execs: Does YouTube set different music detection thresholds based on territory, channel subscribership and degree of monetization on a channel? 

Get them on the record. Record their answer, write it down, put it in your article, publish it. Eventually someone has to hold their feet to the fire.  Step 1 is getting them to go on-the-record with their lies or their admission of gaming the system for the sake of ad revenue. 

I’m an indie guy and would love to just spend my time making more music. But until YouTube stops making it OK for giant corporations to steal my stuff and co-monetize it with YouTube itself, I’m stuck in this muck. 

Here for the long haul, – Kerry

You Go! Rep. @TulsiGabbard Sues Google For Manipulating Election

July 30, 2019 Comments off

According to USA Today:

On [July 25, 2019], member of Congress and Democratic presidential candidate Tulsi Gabbard launched a lawsuit against Google claiming “serious and continuing violations of Tulsi’s right to free speech” because of Google’s suspension of the Gabbard campaign’s advertising account during the first Democratic presidential debate.

The campaign asks for an immediate court injunction to stop further meddling from Google and payment of financial damages.

According to the lawsuit, filed by lawyers representing Gabbard’s campaign Tulsi Now Inc., Google suspended the Gabbard campaign’s advertising account for several hours during the first Democratic debate, when Gabbard was briefly the most-searched candidate on Google.

Read the complaint here.

MTP readers will recall that we first focused on Google’s ability to throw elections back in 2013  (See Now That’s What I Call Bundling!).  I actually started thinking about the issue even longer ago around 2010 when news leaked out of Google offering credit to pirate sites so they could buy keywords suggested by Google employees according to the sworn affidavit of the pirate site operator in the Easy Download Center case.

The point being that Google employees were only too happy to help pirates operate by manipulating search results through keywords.  And if they could do that, what else were they up to?  I naturally thought of throwing elections.

One of the big differences between 2010 and 2019 is the difference in how people react to these facts.  In either 2010 or 2013 very few people thought that Google could or would try to throw an election.  What prompted my 2013 post was a very believable and well constructed study  “Democracy at Risk: Manipulating Search Rankings Can Shift Voting Preferences Substantially Without Voter Awareness” by Dr. Robert Epstein and Dr. Ronald E.  Robertson of the American Institute for Behavioral Research and Technology.  The study focused on how Google could manipulate search results to manipulate public opinion.  My thought was that it was a big claim and however logical and believable it was based on anecdotal evidence, an actual academic study would provide the type of data that would be persuasive.  PBS Newshour interviewed Dr. Epstein:


Dr. Epstein also recently testified before the U.S. Senate hearing on Google and Censorship.

Not much has changed according to Rep. Tulsi Gabbard’s lawsuit:

In the June 26-27, 2019 Democratic Party presidential debates, tens of millions of Americans got to hear Tulsi Gabbard’s voice for the first time. And people liked what they heard: Gabbard quickly became the most searched-for Democratic presidential candidate on June 27-28. In the crucial post-debate period—a time when presidential candidates receive outsize interest, engagement, and donations—Americans around the country wanted to hear more from Tulsi Gabbard.

To speak to these Americans, Tulsi operated a Google Ads account (the “Account”). A Google Ads account allows a political candidate to speak directly to people who want to hear from her. For example, millions of people were searching for information on Tulsi Gabbard on June 27-28, 2019. Through Google Ads, Tulsi could instantaneously and directly speak to these people by linking them to her webpage, which provides information about Gabbard’s background, policies, and goals.  

Or at least that is how things are supposed to work on Google’s search platform—one of the largest forums for political speech in the entire world. In practice, however, Google plays favorites…

Google’s answer?  This was that bane of the IT world–a “glitch.”  Ah, yes.  Those pesky glitches!  It almost makes you think that Google search is not fit for purpose–but it seems far more likely that Google search is performing exactly how it’s supposed to work.  Not fit for purpose, just the purpose is not fit.

Think about it–Google frequently defends what I would call the “Pinto Gap”–Google’s business practice named after the notorious Ford Pinto model with the exploding gas tank.  Why the “Pinto Gap”?  Because one would have to believe that Google has determined, just like Ford, that the cost benefit of programming their search algorithm to perform in a certain way that profits Google more than doing the right thing.  Or at least the lawful thing.  One day we may find out if there is a “Pinto memo” at Google of the kind that took down Ford, but just like Ford, Google will have to be sued to find out, perhaps for products liability.  Or criminally prosecuted, because we’re way beyond Mrs. Palsgraf now.

But Google still relies on the glitch defense–maybe because they still think we’re all idiots.  USA Today quotes Google’s response:

In response, Google says “automated systems that flag unusual activity on all advertiser accounts — including large spending changes” were to blame for the suspension of Gabbard’s account. Google says their automated systems aim to “prevent fraud and protect our customers.”

“In this case, our system triggered a suspension and the account was reinstated shortly thereafter,” said Google spokeswoman Riva Sciuto. “We are proud to offer ad products that help campaigns connect directly with voters, and we do so without bias toward any party or political ideology.”

Of course.  If only she’d paid in rubles!  No one believes that glitch theory either after many investigations into how Google favors its own products in search results.  Why should Google’s outsized role in the Obama campaigns and the 2016 election–not to mention the Canadian General Election that brought their buddy Justin Trudeau to power and set the stage for Googleville (aka Sidewalk)–be any different?  Trust me, Google is only too happy for the attention to be focused on “The Russians” and Facebook–and not on them.  Until now.

soros at google

Eric and George, just two guys talking about stuff

As Professor Robert Epstein writes in Politico:

Research I have been directing in recent years suggests that Google, Inc., has amassed far more power to control elections—indeed, to control a wide variety of opinions and beliefs—than any company in history has ever had. Google’s search algorithm can easily shift the voting preferences of undecided voters by 20 percent or more—up to 80 percent in some demographic groups—with virtually no one knowing they are being manipulated, according to experiments I conducted recently with Ronald E. Robertson .

Or they could simply cut off a candidate’s Adwords account if she gets too popular and is not the anointed Google candidate.




I commend Rep. Gabbard’s complaint to you for further reading, but here’s a couple excerpts.  Remember, the point is that after the Democrat debates, Gabbard was the most searched for candidate on Google.  If you’re a skeptic like me, you’ll say that somebody noticed that right away and thought that Google had to put a stop to it.

For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline.

I would pick a bone with the lawyers on that sentence–it’s very unlikely that it was “arbitrary”.  Saying it was “arbitrary” seems to accept the “glitch” theory, which I don’t.  The Google search algorithm is the most valuable asset at Google.  The idea that it somehow wasn’t working and somehow wasn’t doing exactly what it was designed to do beggars belief.  So I would say don’t give them “arbitrary” for a single sentence.  Let them actually prove that–which will open up discovery on the algorithm to the extent it’s not open already.

[T]he Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.

In response, the Campaign got opacity and an inconsistent series of answers from Google. First, Google claimed that the Account was suspended because it somehow violated Google’s terms of service. (It didn’t.) Later, Google changed its story. Then it changed its story again. Eventually, after several hours of bizarre and conflicting explanations while the suspension dragged on, Google suddenly reversed course completely and reinstated the Account. To this day, Google has not provided a straight answer—let alone a credible one—as to why Tulsi’s political speech was silenced right precisely when millions of people wanted to hear from her.

But in context, the explanation for Google’s suspension of the Account at exactly the wrong time is no great mystery: Google (or someone at Google) didn’t want Americans to hear Tulsi Gabbard’s speech, so it silenced her. This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn’t like, and amplifies voices it does….

Google’s arbitrary and capricious treatment of Gabbard’s campaign should raise concerns for policymakers everywhere about the company’s ability to use its dominance to impact political discourse, in a way that interferes with the upcoming 2020 presidential election.

Now listen up because this is important:  If it weren’t for Rep. Gabbard fighting back nobody would even know it happened.  And if they’ll do it to a presidential candidate, they will definitely do it to you.  This one is live, real, and is not going away.  This isn’t a question of money, and hopefully she won’t let them buy their way out of it.  That’s how we got here.

You go!



Guest Post by @poedavid: “Dance Like Nobody’s Paying?” Spotify isn’t

July 15, 2019 1 comment

[We’re thrilled to welcome David Poe to MTP!]

by David Poe

Spotify’s disastrous “dance like nobody’s paying” ad campaign has now been demolished in the national press, garnering negative coverage in Newsweek, Billboard, NME, Hypebot, and more. Sometimes big corporations slip up and show us what they really think of us, and this was one of those times.  

But what’s Spotify’s plan?  Here, Variety’s Patrick McGuire suggests Spotify’s intent is to divide listeners and musicmakers:

Similar to the way many people bite into a cheeseburger with no consideration for the cow and farm of its origin, campaigns like Spotify’s widens the growing divide between listeners and creators. Audiences intellectually understand that music doesn’t magically materialize out of nothingness for the exclusive purpose of entertaining them, but as music continues its irreversible transition to all things digital, listeners are becoming less aware and interested in how artists create, record, produce, and share music. With a 2017 Nielsen Music report showing that, on average, Americans now spend over 32 hours a week listening to music, it’s clear that music is hugely important in the lives of listeners — just not in ways that provide meaningful visibility and support to musicians.

Ever heard that song “Put another nickel in / In the Nickelodeon”? It’s from 1950 (written by Stephen Weiss & Bernie Baum.)

Everyone loves streaming. But more than half a century later, most streaming services contend that a song isn’t worth a penny. I respectfully disagree.

Because a song isn’t really a song until someone listens to it, no  musicmaker should be faulted for utilizing all available platforms. But streaming in 2019 forces music makers and fans into the middle of a moral hazard. Music enthusiasts should be able to listen to streaming music without having to compromise their scruples, or that of their favorite bands.

Despite the lack of transparency in the music industry, The Trichordist has managed to cobble together an annual Streaming Price Bible.  It is the most credible summary I’ve found on what each streaming service pays, which may impact where Spotify listeners choose to put their dough-re-mi:


How Bad Is it for Music Makers?

You can easily see from the chart what each service pays for recordings.  At about $0.003 per stream, Spotify pays little but has the greatest market share.  At about $0.0002 per stream, Google/YouTube is even worse. 

Very different companies. Their commonality: free music, which has made them rich from ad revenue and data scraping, but mostly from their stock price increasing at the expense of musicmakers. 

Let’s put this in context.  To earn a monthly US minimum wage, an artist on Spotify would need 380,000 streams by some estimates.

To make the same monthly salary as the average Spotify employee, a songwriter would need 288,000,000 streams.

Frozen Mechanicals

For reference, the statutory rate for a song on a CD or download is 9.1 cents — 4.1 cents more than ye olde Nickelodeon of the 1950s. 


You might say that’s better than the old days—but it isn’t as good as it looks, because the song rate was frozen for 68 years before it began gradually increasing … only to be frozen again in 2009, where it will stay until 2022.


Clearly, streaming has all but replaced CDs and downloads, but without replacing revenue from songs to musicmakers. 

Money is being made from streaming if you look at it on an industry-wide basis.  But—due to the hyper efficient market share distribution of the “big pool” revenue share accounting instead of a user-centric model (or the “ethical pool,”) individual music makers are far worse off.  More than ever, streaming revenue is not paid to music makers who don’t share in the big advances or Spotify stock. 

You Can’t Compete With Free

The vast majority of Spotify users are in the “free tier”. By offering free access, Spotify artificially distorts the streaming market and disallows competition amongst streaming companies. As musicians have learned the hard way, you can’t compete with free.

Spotify likes to say it’s artist-friendly, a tool for music discovery. 

Guilty of chronic copyright infringement, Spotify was founded by a former pirate.  It’s a corporate ethos built on theft.  The Music Modernization Act essentially gave Spotify a new safe harbor, but its tactics haven’t changed.

There’s additional shadiness here: allegations of gender discrimination and equal pay violation, expensive, state-subsidized offices, executive  bonuses, corporate lobbyists, a dicey DPO and of course, the “fake artist” scandal.

Spotify’s ongoing lobbying campaign against artist rights continues despite the unanimous passage of the Music Modernization Act in Congress last year (and the jury is out on the MMA and Spotify’s safe harbor).  Shocker—Spotify apparently reneged on agreements it made to accept the Copyright Royalty Board’s mandated increase in songwriter pay.  Another bonehead move that was publicly rebuked by songwriters from Spotify’s “secret geniuses” charm offensive, including Nile Rodgers and Babyface.

Spotify was joined by Amazon, Google, and Pandora in “suing songwriters” to appeal the Copyright Royalty Board’s ruling that increased the paltry streaming mechanical rate, which Spotify lawyer Christopher Sprigman argued against in court.  

Apple Music does not have a free tier and yet was the only major streaming service that did not challenge the new royalty (44% more, which means 0.004 instead of 0.003, which is still bullshit.)  

This may be because Apple recognizes that music helped save its ass from financial ruin 20 years ago. Math is not my strong suit, but numbers indicate music (via the iPod, a now-obsolete door stop) generated nearly half of Apple’s accumulated wealth not to mention introducing a new audience to Apple’s other awesome products.

Or it could just be that Apple understands creators and may actually like us.  There’s a thought.  We were early adopters—Macs have been in every recording studio and creative department for decades.   

Apple Music’s intent to increase artist pay to a penny per side is its best yet, but now long overdue.   Which is a shame, because a trillion dollar market cap company could afford to redistribute some wealth.  If Apple offered a fair alternative, most would run screaming from the competition.

The Generational Problem

There are many who are more expert than me, some quoted in this post. I’d rather be staring into space strumming guitar and writing a song than here discussing music and money. 

But I’m concerned for the next generation of artists, especially the musical innovators. Here’s why:

There used to exist a sort of musical middle class. Artists in all mediums expected financial struggle but there was the possibility of making a living and even growing as an independent artist.  That might include a record deal or selling CDs at a gig in order to make it to the next town. 

Songwriters could get an album cut and get by or even do well if the album sold (Jody Gerson has a great explanation of this.)  Musicians of quality could see a light at the end of the tunnel.

Streaming has “disrupted” all of that.

Light’s out. 

Bands’ streaming access may—may—help build an audience that may somehow convince talent buyers to book gigs that route your tour, which is awesome. But sustaining a career is still cost-prohibitive for many. 

Thus the Top 40 is full of the children of the affluent. 

Not children of millionaires: Stevie. Dylan. John & Paul. Aretha.

Those of us who have been making music for awhile will remember the optimistic, 1990s-era “monetize the back end” argument: bands on the road can make up income lost to streaming by selling merch. 

I tour, too. I wish the best to every band who does so. 

But not every musician can travel … or got into music to sell a fuckin hat.

Another common sense rebuttal to “shut up and tour:” INCOME FROM LIVE SHOWS WAS NEVER MEANT TO REPLACE THAT OF MUSIC SALES — plus both have investment costs and overhead to produce.

Gas costs what gas costs. 

Mics cost what mics cost. 

Streaming doesn’t pay what music costs.

Sorry to yell. Just sick of this lie that to make up for streaming losses all recording artists, especially senior citizens, should tour forever. Or the assumption they are all rolling in dough! Tell that to the punk rock drummer, alto player, the cellist, the songwriter. 

Note: It’s almost impossible to buy a new car or laptop that plays a CD. Low income streaming has effectively replaced higher income physical sales. 

So if streaming is to be the primary method of music distribution — if not the only one — then pay artists fairly.  Or it really will be lights out, if not for the huge artists who regularly celebrate stupidity then for the ones whose songs you want played at your funeral.

Without musicmakers, Spotify has nothing. When Spotify says “dance like nobody’s paying,” it’s because they don’t. 

Given support from listeners and lawmakers, this era of economic injustice via streaming may one day be a footnote.  Fans should not be paying for music they don’t listen to which is what has been happening and is a hallmark of streaming gentrification.

Now, listeners must demand fair pay for musicians they claim to love, whether it is higher streaming royalties or a user-centric royalty allocation—or both.


Must Read by @davidclowery: Google Doxx: Google Funded Groups in 2017 Illegal Doxxing of FCC Chairman — The Trichordist

July 13, 2019 Comments off

Editors note #1 – Over the last year, this blog has been reporting on Google’s apparent use of proxies in an attempt to intimidate members of the EU parliament into voting against the proposed EU Copyright Directive. The Copyright Directive requires social media platforms above a certain size to do more to counter copyright infringement […]

via Google Doxx: Google Funded Groups in 2017 Illegal Doxxing of FCC Chairman — The Trichordist

What, Me Worry: The Decline of MAD Magazine and David Simon’s Dire Prediction

July 6, 2019 1 comment

The cover of the first magazine issue of MAD in 1955 bore these prophetic words:

This magazine is vital for you to read and inside you will find an extremely important message from the editors.

Even in its decline, those words are true today but for reasons that are not particularly funny–except perhaps to Marissa Meyer and Arianna Huffington as we will discover.

What did the editors mean at the time?  Well, what else was happening in America in 1955?  Oh, yeah, these guys:


Think it didn’t take guts to launch a parody magazine in those years?  Think again.

But, unlike the many newsrooms that have simply disappeared with the rise of Google and Facebook, MAD is not going away entirely.   The Hollywood Reporter tells us:

The beloved satire publication will no longer be sold on newsstands after the August issue, and future editions will shift to previously published material with new covers.

In other words, the value in the magazine will be in re-cycling the past, or one might say commoditizing MAD Magazine so it can be monetized online.  The irony here should not be lost on anyone–a major defender of fair use parody and satire is having its bones picked over by the fair use profiteers.  (See Judge Kaufman’s opinion giving MAD a victory in Irving Berlin et al., Plaintiffs-appellants, v. E. C. Publications, Inc., et al. [MAD], Defendants-appellees, 329 F.2d 541 (2d Cir. 1964) (cert. den.) for those reading along at home.)

In a prescient 2008 book review (entitled “Google the Destroyer“) of Nicholas Carr’s The Google Enigma, antitrust scholar Jim DeLong gives an elegant explanation:

Carr’s Google Enigma made a familiar business strategy point: companies that provide one component of a system love to commoditize the other components, the complements to their own products, because that leaves more of the value of the total stack available for the commoditizer….Carr noted that Google is unusual because of the large number of products and services that can be complements to the search function, including basic production of content and its distribution, along with anything else that can be used to gather eyeballs for advertising. Google’s incentives to reduce the costs of complements so as to harvest more eyeballs to view advertising are immense….This point is indeed true, and so is an additional point. In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….

Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.

So, on the whole, Google can continue to do well even if leaves providers of is complements gasping like fish on a beach.

In the case of MAD, Jim DeLong’s theory is still quite applicable–it’s just the creation of the compliments is evidently going to be old material with new covers (possibly user-generated).  And one of the leading and most influential sources of parody and satire is left flopping and gasping for air alongside the Rocky Mountain News and a host of other disappeared newsrooms in the ones and zeroes where no one can hear you scream.

Let’s understand that MAD’s decline is actually very important because it’s symptomatic of a serious harm at work around the world as the scrutiny of elected officials declines directly with the closing of newsrooms and the transmogrification of independent journalism into social media “reporting” that is edited, controlled, filtered and monetized by you know who.  It is well to remember the dire warning from David Simon in 2009 before the U.S. Senate Commerce, Science and Transportation Subcommittee on Communications and Technology.  (David Simon wrote and produced The Corner, The Wire, Treme and was formerly a crime reporter for the Baltimore Sun.)  Mr. Simon told the Senate hearing on the Future of Journalism and Newspapers:

Understand I’m not making an argument against the Internet and all that it offers. But you do not in my city run into bloggers or so-called citizen journalists at City Hall or in the courthouse hallways or at the bars where police officers gather. 

You don’t see them consistently nurturing and then pressing sources. You don’t see them holding institutions accountable on a daily basis. Why? 

Because high end journalism is a profession. It requires daily full-time commitment by trained men and women who return to the same beats day in and day out, reporting was the hardest and in some ways most gratifying job i ever had….

The day I run into a Huffington Post reporter at a Baltimore zoning board hearing is the day I will be confident that we have reached some sort of equilibrium…[but] the next ten or fifteen years in this country are going to be the halcyon era for state and local political corruption….

And the fair use profiteers Marissa Meyer (then still at Google) and Ariana Huffington also on that Senate witness panel were yucking it up.  Maybe it’s because they knew no one was listening to David Simon’s warning about corruption–for some reason.  The subsequent history certainly suggests that if anything David Simon underestimated the extent of the corruption.


But that magazine is vital for you to read and inside you will find an extremely important message from the editors.  And remember–we were warned.  While they laughed.

David Simon Hearing

What, me worry?





Guest Post by Stephen Hollis: South Africa Creative Sectors Petition SA President on Copyright Bill

June 7, 2019 Comments off

[MTP readers will recall that there is a fierce fight going on in South Africa over a new national copyright amendment that is backed by Big Tech but bitterly opposed by South Africa’s creative sector.  South Africa lawyer Stephen Hollis gives us the background and detail.  We’re pleased to have the opportunity to post Stephen’s article to bring everyone up to speed.  Stephen is a member of the Adams & Adams Entertainment Law Group in Johannesburg.]

In what will undoubtedly be recognized as a watershed moment for South Africa’s creative sectors, a broadly representative group of investors, stakeholders and trade and industry associations representing the whole spectrum of our creative industries petitioned President Ramaphosa not to sign the controversial Copyright Amendment Bill into law.

The trade associations include:

  • ANFASA– Association of Non-Fiction Authors of South Africa
  • S.A– Animation South Africa
  • IBFC– Independent Black Filmmakers Collective
  • MPA-SA– Music Publishers Association of South Africa
  • PASA– Publishers Association of South Africa
  • PEN Afrikaans(authors)
  • RiSA – Recording Industry of South Africa
  • VANSA– Visual Arts Network of South Africa
  • WGSA – Writers Guild of South Africa

The Bill, together with the Performers’ Protection Amendment Bill (‘the Bills’), was rushed through Parliament and hastily approved by the National Assembly and the National Council of Provinces.  This, despite grave concerns expressed by stakeholders and investors (locally and internationally), and legal and constitutional experts that the Bill does not meet Constitutional muster, places SA in breach of important international treaties and risks the major destabilization of our already vulnerable creative sectors.

How did we get here?

The Department of Trade and Industry undertook the necessary task of updating our Copyright legislation and our Performers’ Protection Act to bring our laws up to date to meet the challenges of the digital environment and to uplift the plight of our vulnerable creatives and improve their earning potential.  One of the catalysts of change was the 2011 Copyright Review Commission (CRC) report which was commissioned by Minister Rob Davies after a group of musicians petitioned the Office of then President Zuma in a plea for assistance.  The issue then was that, almost a decade after the re-introduction of so-called Needletime royalties for performers featured on sound recordings, no meaningful royalty distributions have been forthcoming.  The commissioned enquiry resulted in a report from Judge Farlam and his team of around 200 pages, containing valuable recommendations on how to improve the plight of musicians, composers, artists and performers in the music industry.

Creatives were therefore understandably enthusiastic, as one of the key driving forces for legislative change was understood to be the recommendations of the CRC report. DTI surprised everyone when the draft Bill introduced a ‘world first’ in that it proposed to introduce ‘user rights’ that would afford users the right to share equally in royalty distributions with musicians, authors, composers and performers.  It also empowered users to transfer copyright out of the hands of current owners of original works.  It further allowed users to tamper with and remove technological protection measures and copyright management information from protected works, including digital works.

It also introduced another ‘world first’ in providing users with arguably the broadest set of copyright infringement exceptions that would effectively provide them with a plethora of new ways they could copy, reproduce, use, access, etc. copyright protected works without the need to pay license fees or market related royalties.  Not only did DTI’s draft Bill allow users to freely copy materials in the educational space, but it introduced a new statutory defence for users to rely upon when a copyright holder felt aggrieved when unlicensed use of protected works was made, called ‘fair use’.

The fair use debate

In what turned into the hottest topic of debate regarding DTI’s game changing proposals for the transformation of our copyright system into a user access-oriented system, was the importation of the controversial fair use doctrine from US law, where it finds its origin.  Without conducting any economic impact assessment or proper research, DTI’s controversial proposal seeks to import this US-statutory defence to copyright infringement into our law without any of the legal checks and balances that makes the system work somewhat well in the US.

Fair use represents a vague and open-ended set of criteria which leaves it to the Courts to determine whether the unauthorized use, copying, etc. of a copyright protected work can be made without a license.  The main counter-balance to this sanctioned authorization for users to make unlicensed use of copyright protected materials in the US, is the remedy that rights holders have in the US to claim statutory damages for infringement, ranging from US$750 to US$150 000 per act of infringement, which can be claimed on top of any real economic harm that can be proved by the rights holder.

In SA, a rights holder can currently only claim damages if it can be proven that the infringer had ‘guilty knowledge’ and the amount of damages is limited to actual economic harm proven or an amount that the rights holder would typically license the work for.  What this means is that an unlicensed user can claim to not have guilty knowledge of infringement until such time as a Court has considered the matter and found that the unlicensed use was indeed infringement.  This effectively pulls the few teeth left from the watchdog that SA creatives and rights holders can call upon to restrain unlicensed use of protected works.

So, while introducing the broadest regime of copyright infringement exceptions into our law, our rights holders’ remedies to prevent infringement is reduced to an all-time low.

Whose interests are served?

Stakeholders in our copyright and entertainment industries were understandably shocked at DTI’s proposals and what was initially thought to be clear drafting errors, were exposed to be a concerted and deliberate effort to weaken our copyright laws to enable users, and government, to make use of copyright protected materials without the need to pay the authors of the works.

When DTI co-hosted an event at a fancy hotel in Pretoria one week prior to the August 2017 Parliamentary hearings with the world’s largest users of copyright protected materials, in ‘Big Tech’, and referred to them as their ‘Partners’ in developing the new legislative proposals, the penny dropped.

While the Big Tech companies from the USA do require legislative reform to allow them to make use of copyright protected materials that do not affect the commercial interests of rights holders in very specific instances, government went too far in developing legislation that would skew the balance entirely in their favour, without any compelling reason, research, policy or impact assessment that might justify such a radical and ‘world first’ departure from the status quo that would weaken copyright protection in SA to an all-time low.

Unguarded statements from high ranking politicians, including the Chair of the National Assembly’s Portfolio Committee on Trade and Industry, Ms. Joanne Fubbs and from former Minister of Trade & Industry, Rob Davies, that the copyright exceptions are justified because text books are too expensive, a hidden policy agenda was revealed.  Government’s ‘free education for all drive’ will be funded by authors of books and works in the educational space.  DTI also legislated that the unlicensed use of copyright protected materials would be allowed for government insofar as it is required for the vague purpose of ‘public administration’.

Where does this leave our Creatives?

The sudden and unexpected departure from focusing on increasing the legal protections for our vulnerable creatives steers SA into uncharted waters. Recently, the EU Parliament voted to address the growing value gap in commercial usages of copyright protected works and introduced a legal responsibility on digital platforms to pay market related royalties for the use of protected works.  In SA, we are moving in the opposite direction in allowing for more unlicensed usages of works.

Government attempts to hide this visceral gutting of our copyright laws behind the electoral promises that creatives will now enjoy more rights, including royalty payments that content production companies will have to hand out on all works that are still in copyright and commercialized in SA, despite the fact that 90%+ of those projects have not yielded any profits.  It rides rough shod over contractual dealings of the past and sends a message to the world that ‘your contract negotiated in SA today may be ripped up by government tomorrow’.

The risk here is that SA content production companies will simply remove works from the market that have not yielded a net profit yet, in order to ensure that they can keep their doors open for business and not pay out monies on past projects that place them in financial risk.   Also, foreign performers would be able to claim against local film, music and other content production companies. Our creatives would no longer be employed or commissioned to create new works by international clients and investors and film and music production companies will move their upcoming projects to other jurisdictions.  Who will suffer from this the most?  The very local creatives that the Bills purport to protect.

Our creatives are effectively being sold down the river with empty promises, on the back of  a map to a pot of gold at the end of the rainbow, that does not exist.

What to expect if the Bills are signed into law

Major disinvestment into our creative sectors will result if the Bills are signed into law as presently worded.  While our creative sectors have warned repeatedly and consistently from the onset that this is the case, these warnings have simply been ignored.  The Publishers Association of South Africa (PASA) was the only party that commissioned an independent economic impact assessment which report was prepared by PwC.  This report warned that our publishing industry would be decimated if the Bill was signed into law, as is, and even though this report was handed to the National Assembly in 2017, government chose to completely ignore the findings, and did not deem it necessary to conduct its own assessment on how the copyright exceptions and fair use would likely impact on our creative industries.

After the National Assembly approved the Bills, the NCOP reportedly received around 1000 submissions in opposition to the enactment of the Bills.  The Chair of the Select Committee deemed it appropriate to allocate one hour to consider the submissions received from stakeholders and creatives’ representatives.  DTI presented to the Committee that the panel of legal and industry experts appointed by the National Assembly gave the Bills a green light.  This was a lie.  None of the four experts did so and they wrote a letter to Minister Davies to object and to request a retraction of that statement.

Even though Dr. Evelyn Masotja (acting DDG of DTI) proceeded to do so on the day that the NCOP considered the Bills, it was not deemed necessary by the Chair of the Select Committee, Mr. Edwin Makue, for a review of the experts’ opinions to be conducted.  The Bills were simply approved in record time and sent to the President for his assent.


While the much-maligned Bills have been railroaded through Parliament on the back of powerful and hidden political agendas, and carrying the fake promises to creatives that their collective plight would be uplifted, the reality is that the enactment of the Bills would destabilize and cause significant harm to our creative sectors and economy.

It would also deter and undermine the new President elect’s objective of breathing new life into our economy by inviting direct foreign investment into our economy and business sectors.  The only ones who would benefit would be those who wish to make use of copyright protected materials without paying license fees or market related royalties to the authors thereof, and without investing in the creation and development of local, original content.

While government, educational institutions and digital platforms are licking their lips in anticipation of the enactment of the Bills, our creative sectors are galvanizing and forming an opposition that would likely launch a legal challenge that would place the irrational, irresponsible and fundamentally flawed legislative copyright reform process in the international spotlight and highlight the ‘state capture’ of yet another important and valuable sector and resource that would harm all South Africans in the long run.


The Two Years War: Google’s Polish Footprint Behind Poland’s Lawfare Against Artists over EU Copyright Directive

June 3, 2019 Comments off

Poland has the distinction of being the first country to tip Google’s lawfare strategy against the Copyright Directive–sue to have the whole thing overturned by Court of Justice of the European Union, the “CJEU.”  The CJEU has, among other things, the jurisdiction to  hear an “action for annulment” filed by a EU government like NATO member Poland.

So who is in Google’s Polish footprint?  According to the Google Transparency Project, we find a few revolving door people.  Want to bet one of them knows how Poland came to file their case so soon?

Sylwia Giepmans-Stepien:  Former Junior Officer in Poland Ministry of the Economy

Google Poland 1

Marta Kokoszka: Project Manager, Polish Information and Foreign Investment Agency

Google Poland 2

Marcin Olender, Head of European Union and International Affairs Unit, Polish Ministry of Administration and Digitization

Google Poland 3

Big Door Keeps on Turning: Recent Departure from Google to (where else) Uber: Agata Waclawik-Wejman

Google 4

But it’s not just the old revolving door.  Google has made a substantial investment in Europe, but in particular at the University of Warsaw.

Google Europe

The Google Transparency Project describes Google’s investment in the University of Warsaw:

In early 2014, according to domain registration records, Google expanded its academic relationships in Europe further East, creating the Digital Economy Lab (DELab) at the University of Warsaw.

The program is described as an interdisciplinary institute funded by Google for the implementation of programs concerning the social, economic and cultural consequences of technology.

There is little public information about the extent of the partnership, or the amount of Google’s funding. However, the DELab website does offer some clues.

DELab’s director, Katarzyna Śledziewska, has a distinguished career in European policy and academic circles.  She also serves as a member of another Google-funded initiative, the Readie-Europe Research Alliance for a Digital Economy….

Stay tuned, this case may turn out to be an excellent vehicle to find out more about the extent of Google’s investments.


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