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The Dopamine Delivery Device: The Android/Fair Use Connection

January 17, 2020 Leave a comment

If you’ve ever seen The Insider starring Russell Crowe you know the story of Dr. Jeffrey Wigand, the whistleblower’s whistleblower.  Dr. Wigand worked for one of the Big Tobacco companies (Brown & Williamson) to help them perfect nicotine addiction.  He eventually couldn’t take it anymore and went public with his inside knowledge.

Dr. Wigand identified cigarettes as a “delivery device” and his former employer Brown & Williamson as being in the nicotine delivery business.  In Wigand’s 60 Minutes interview, Mike Wallace described the process:

Dr. Wigand says that Brown & Williamson manipulates and adjusts that nicotine fix, not by artificially adding nicotine, but by enhancing the effect of the nicotine through reuse of chemical additives like ammonia, whose process is known in the tobacco industry as “impact boosting.”

Of course one of the problems with addictive behaviors is that the people who need the information most are the ones least disposed to hear the truth…because they’re addicted.

So it is with smartphones, and particularly Google’s Android.  As is well-documented now, smartphones are a key element in the behavioral addiction which many believe (and studies back this up) is just as addictive as substance addiction like nicotine.  Ever notice the similarities between the little Android R2D2 and Joe Camel?

That’s right–smartphones are a “delivery device” for the dopamine rush at the core of the addiction.  In Google’s case, Android smartphones are the gateway delivery device for loosening user inhibitions about giving up their private information to Google.

So how to enhance that addiction, how to make it “impact boosting” like Brown & Williamson’s chemical additives?  One way is with music, the ultimate honeypot for data scraping.  And that data is so valuable and the addictive properties of music are so pervasive that Google is willing to risk a lot to get as much of it as they can as fast as they can.

Including distorting copyright exceptions into loopholes that Congress never intended and in the case of fair use really have no precedents.  Fair use is at the core of Google’s commercial intentions, and at a massive scale.

Fair use gets them content, content gets them addiction, and Android gets them Google accounts that they can use for very precise data profiling and aggregation.  So Google’s fair use concepts are transformative alright, if you think Dr. Frankenstein transformed the monster.

It’s easy to understand why Android is so important to Google’s business.  It’s a delivery device.  And if you don’t think it’s true, check yourself for “cellphone vibration disorder.”

Stopping Google’s End Run: No Safe Harbor Privilege in Trade Agreements

January 6, 2020 Comments off

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  Less discussed is the part of USMCA  that incorporates concepts of the failed DMCA from US law.  The chances of doing something to lessen the blow are dwindling now that the USMCA has passed the House of Representatives and moved on to the Senate.  We still have a chance to have an impact in the Senate, but time is going by.

Google’s USMCA Back Door

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

What is to be Done?

There’s a few ways to do this.  First, the simplest thing is to ask your Senators to make a statement for the record opposing the safe harbors being included in any trade deal, including USMCA.

Then, realize that significant legislation comes with something called “legislative history” which is a stand alone document that is a narrative explanation of what the Congress intended with the bill.  The legislative history for USMCA has not been finalized yet, but the clock is ticking.  (You can read the legislative history from the House of Representatives on the Music Modernization Act if you want to get an idea of what this will look like.  Both House and Senate issue these “reports”.)

Courts often review the legislative history when trying to “say what the law is” as a way of defining the intentions of Congress, sometimes years or decades after a particular bill was enacted into law.  It’s important that the USMCA legislative history reflect that Congress was not throwing the door open to Google to incorporate special privileges.

One other way is to require the U.S. Trade Representative to consult with relevant committees of Congress before ever doing this again.  This takes the back room dealing out of it, or at least limits it.

Creators should be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 “(Legal Remedies and Safe Harbors)”–and that’s the problem floating beneath the surface of USMCA.  Just at a time when not only has the copyright small claims court bill (CASE Act) passed overwhelmingly in the House, but we are also expecting the Copyright Office report on the DMCA safe harbor and we are starting to win victories over the value gap in Europe, we don’t need US trade agreements to perpetuate and expand the bad DMCA safe harbors (17 USC Sec. 512 et seq for those reading along at home).  Particularly when the world is moving past those privileges and US law is frozen in amber.

These concerns arise because the USMCA incorporates the highly controversial “DMCA safe harbor ”. This perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades just at a time when the CASE Act is about to give some relief, especially to photographers, film makers and music artists. Creators simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States especially if the US ends up negotiating a bilateral trade agreement with the UK after Brexit.

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.” The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.  The House of Representatives has recently passed the CASE Act to deal with this very problem and I expect the Senate will take up the CASE Act in the coming weeks.  It would be a bizarre twist for the Congress to plug one loophole only to allow another through the back door of trade agreements. (Not to mention the showdown over Google’s fair use loophole brewing in the Supreme Court in the Google v. Oracle case.)

Even if the US rolls back the DMCA safe harbor, it’s possible that we may be stuck with whatever safe harbor privilege that Google snuck into the USMCA as a stand alone regime.  That would be unacceptable.

Take Action

I encourage readers to call on your representatives and ask that they include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of Article 20.89 that perpetuates the unworkable DMCA regime.  The legislative history should also disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors. This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the exact opposite direction of the Article.

If you agree with these concerns, I recommend that you call the Senate switchboard at 202-224-3121 and tell your Senators that you want (1) the USMCA legislative history to place a limitation on incorporating DMCA in future trade deals and (2) Congress to require the US Trade Representative to consult with Congress.  And you want them to make a statement for the record opposing inserting safe harbors in any trade deals, including USMCA.

The Artist Rights Watch motto is “Never Take It for Granted that Justice Will Be Done.”  We have a chance to fix this–if not us, then who, if not now, then when?

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Not Very Bright: Things are out of hand at YouTube, just they way they planned it

December 29, 2019 Comments off

To paraphrase “Deep Throat” from All the President’s Men, don’t believe the myths the media has created about Google.  The truth is, these people are not very bright and things got out of hand.

Bloomberg’s and  have written one of the most revealing stories yet about just how out of control YouTube really is and just how incompetent YouTube CEO Susan Wojcicki is to handle it all (“Inside YouTube’s Year of Responsibility“).  (How Susan W came to have the YouTube job I’m sure has nothing to do with being the ex-sister-in-law of Google founder Sergei Brin.)

It boils down to this:  Google has been caught out.  YouTube was founded on the usual Google bedrock principle–steal everything.  Beg forgiveness if you get caught and emote about innovation, free speech, and any other hackneyed shibboleth that contributed to your D grade in freshman English comp from those teachers who didn’t understand your true brilliance.

Those “principles” may work for the Boys Who Wouldn’t Grow Up whilst inside their Mountain View bubble, but it was only a matter of time before the public began to catch on.  And the apocalyptic algorithm is that more the Google scaled, the more likely it was that the public would catch on like an appointment in Samarra.  When that happened, somebody may find out how bad it really is behind that curtain.  Because the truth is, these Googlers are not that bright, and things definitely got out of hand at scale.

So it was only a matter of time.  This is important because Google’s YouTube is the largest video search platform in the world and is the second largest search engine–right behind Google.com.  Unless you want that corrupting influence being piped into your children’s brains, you may want to think about how to stop it.

That ticking clock resonates in one of the most telling quotes in the Bloomberg post from YouTube CEO Susan Wojcicki:

“If we were held liable for every single piece of content that we recommended, we would have to review it,” she said. “That would mean there would be a much smaller set of information that people would be finding. Much, much smaller.”

Ms. Wojcicki just described both the essence of the value gap and why YouTube is nothing like television no matter how many times Googlers aspire for it to be true.  YouTube is not “disrupting” television; rather it is corrupting television.  YouTube is television’s distorted mutant.

When Ms. Wojcicki says there would be a “much smaller set of information that people would be finding,” the clear implication is that there would be much less content for YouTube to sell ads against if YouTube took responsibility for everything on their platform.  You know, take responsibility like TV does.  (YouTube’s endless braying about “fair use” is misplaced–the issue is about taking responsibility before you get to the infringement that leads to the fair use defense.)

Ms. Wojcicki’s statement does not mean that just because the YouTube offering would be smaller it would be worse, which is the implication it seems she would like you to draw.  It doesn’t mean the status quo is “better” either, it just means that in an accountable future YouTube would take responsibility for YouTube being an honest broker.  It also doesn’t mean that anyone would be “censored” unless you think enforcing standards and practices on the digital equivalent of the public airwaves is “censorship” or you think artists protecting their rights impermissibly restricts speech.

Ms. Wojcicki’s statement also provides some insight into YouTube’s current crisis involving children using the service.  Because at Google, small is not beautiful–scale is beautiful.  And the consequences be damned.  Bloomberg observes:

[In addition to copyright infringement, currently] YouTube’s biggest challenge is kids’ privacy. In September, the FTC fined Google for illegally tracking children for its ads business, forcing significant changes to YouTube’s operations….The FTC is now rewriting its COPPA rules [the US law that protects children online] and has invited public comment. In a filing, Google told the agency it was worried about any laws forcing it to “identify and police” videos aimed at kids. The company was, in effect, arguing it couldn’t know for sure the age of its audience and shouldn’t be punished for that.

Let’s understand something–illegally tracking children for ads has nothing to do with standards and practices.  It has nothing to do with innovation, free speech or fair use.  Tracking kids for ads was not an algorithmic glitch, either.  This problem is entirely human-made and is entirely the result of choices made by humans who work for Ms. Wojcicki, if not Ms. Wojcicki herself.  The problem is made by the people who are supposed to be in charge, who stockholders task with making good choices for the company (in this case, Larry Page and Ms. Wojcicki’s ex-brother in law, see my NY Daily News op-ed on Google’s dual class voting stock).

Google wants all of the benefits and none of the burdens of operating a media business.  Their justification is that they do it online.  If kids or artists or advertisers get chewed up in the process, they’d have you believe that it’s not their fault.

In one sense, they have a point.  Regulators have allowed them to get away with a host of travesties for 15 years all based on a tortured reading of two safe harbors (Section 230 of the Communications Decency Act and the DMCA).  You can’t really blame Google for thinking that having established a business model based on corruption that has made a lot of people filthy rich, they should be allowed to continue to get away with the free ride.

YouTube profits from chaos and the sheer scale of so many harms to the society from a tortured expression of the important values of fair use to blatant child endangerment.  YouTube executives supposedly serve society, at least according to the nepotism of Silicon Valley royalty.

But if you expect them to meaningfully disrupt the highly profitable situation that they’ve let get out of hand at scale, the current executive team will disappoint if left to their own devices.

Google Says Don’t Break the Internet–Again–this time to Oracle at SCOTUS

December 26, 2019 Comments off

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

DBTI Lemley

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.

DBTI EFF

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.

DBTI Orlowski

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.

of-all-the-ceos-google-interviewed-eric-schmidt-was-the-only-one-that-had-been-to-burning-man-which-was-a-major-plus

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?

DBTI Shapiro

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.

DBTI Internet Society

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.

censorship_square_of_doom1

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 .

 

As if it weren’t hard enough: @TheFOWShow Covers the Direct Shot Supply Chain Debacle

December 7, 2019 Comments off

If you are lucky enough to have an independent record store in your community today (mine is the fabulous Waterloo Records), you may not realize just how lucky you really are.  For an independent record store to have survived the last 20 years is something of a modern miracle.  (I think the Waterloo story should be a Harvard Business School case study, frankly.)

It’s also important to realize that physical configurations contributed to 25% of global recorded music revenues in 2018.  Vinyl alone accounts for 3.6% of global revenue.  But–all the majors have outsourced their U.S. physical distribution to a company called “Direct Shot” and the result is a disaster for this delicate ecosystem.  I find it hard to believe that any sales guys had much to do with that decision–it has that extra special Boston Consulting Group stench to it.

The point is that the one way that it could be harder for retailers than it already is due to contractions in the market and streaming cannibalization is if the labels also contracted their stock, shorted them, or just simply didn’t timely deliver the records the stores ordered.  It’s also a silly move for the labels–that’s a nice 25% of revenue you got there, be a shame if something happened to it.

This episode of the first-rate Future of What podcast hosted by the brilliant Portia Sabin is one of the first in depth public conversations on this vital topic.  You may also want to read the open letter from retailers to the major labels that appeared earlier this year, as well as an in depth post about the Direct Shot debacle in the MusicBiz blog.

Why Creators Should Care About Google v. Oracle in the Supreme Court–@artistrights Watch

November 26, 2019 Comments off

There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come:  Google v. Oracle.

[MTP readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion.  We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people dancing to Google’s tune.]

On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle.  But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.”  And when I say “Google”, I don’t really mean Google as a company.  I mean the insiders.  This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.

So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.

How did Google get sued by Oracle and not Sun?  According to Google’s SCOTUS brief (at 3):

Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.

Let’s not just blow past that statement.  (First of all, it’s not really true.)  That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights.  Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that.  Or said another way, 2+2=5.  And don’t you forget it.

You can see that Google would like to push that angle.

If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do.  That buyer then sues Google for those pre-acquisition infringements.  A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.

But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems.  As the amicus brief by the United States  tells us, one of the questions presented to SCOTUS is:

Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….

[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.

As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative.  Which is, of course, fair use.  Or was it a parody, I forget.

The brief by the United States disagrees, and so do I.

So let’s be clear:  This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can.  And then scream fair use.

You have to wonder why SCOTUS took this case.  I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.

 

Must Read: @realrobcopeland: Google’s ‘Project Nightingale’ Gathers Personal Health Data on Millions of Americans

November 13, 2019 Comments off

Wall Street Journal reporter Rob Copeland has unearthed another Google data scraping scandal, this time your private health information.  As usual, Google doesn’t want you to focus on how they use this data in the background for data profiling in ways that you don’t know is happening and that you were never asked to consent to.

The scandal isn’t that it’s illegal, the scandal is that it isn’t illegal.  Yet.

Remember that where Google gets into trouble is not necessarily because of what you can see, it’s what they do with the data that you can’t see.  For example, Google uses Google Books as a corpus to teach their translation algorithm in the background through a process of machine learning.  That was what the Google Books case was about–not the “Digital Library of Alexandria” BS.

Just like many Google products, the company uses the old head fake to get you thinking the deal is about one thing, but it’s actually about something else you wouldn’t like.

 

 

 

 

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