Churchill and Roosevelt Christmas 1941

December 24, 2019 Comments off

Christmas of 1941 were some of the darkest days in modern history for lovers of freedom.  After the December 7th attack on Pearl Harbor by the Empire of Japan, Winston Churchill came to Washington for meetings with Franklin Roosevelt that cemented the bond between the two and consequently the special relationship.

This Christmas Day message from the White House shot from a backstage angle tells you a lot about the two men and how hope springs eternal.

Score One for the Serfs: Copyright Royalty Judges Mandate MLC/DLC “Settlement”…With a “But”

December 14, 2019 Comments off

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Always read the footnotes.

Remember how we all were told that the services were going to pay for the administrative costs of operating the Mechanical Licensing Collective under the Music Modernization Act.  And that songwriters would benefit because there would be no administrative costs for the mechanical royalties collected and paid by the MLC.  (This implies, although importantly does not say, that publishers could not charge an administration fee for mechanicals they receive through the MLC but not surprisingly the MMA is silent on this not so nuanced nuance.  And why might that be?)

The drafters of Title I of the MMA (which is where the MLC-DLC rule reside) put it on the Copyright Royalty Judges to decide if the “administrative assessment” was fair and reasonable.  In case you missed it, the MLC and the DLC have reached a voluntary settlement that is several million dollars short of what the MLC asked for.  The CRJs have now issued an order making the settlement the law of the land.  With a twist.  (Order Granting Participants’Joint Motion To Adopt Proposed Regulations,  In Re Determination And Allocation Of Initial Administrative Assessment To Fund Mechanical Licensing Collective, Docket No. 19-CRB-0009-AA, (Dec. 12, 2019).)

Here’s some relevant language from the CRJs’ order:

Section 115(d)(7)(D)(v) of the Copyright Act authorizes the Judges to approve and adopt a negotiated agreement that has been agreed to by the Mechanical Licensing Collective and the Digital Licensee Coordinator in lieu of a determination of the administrative assessment. An administrative assessment adopted under section 115(d)(7)(D)(v) “shall apply to all digital music providers and significant nonblanket licensees engaged in covered activities during the period the administrative assessment is in effect.”

Sounds good, right?  But the CRJs go on:

However, the Judges, in their discretion, may reject a proposed settlement for good cause shown. Id. Section 355.4(c)(4) of the Judges’ rules establishes a process for non-settling participants to comment on a proposed settlement and for the settling participants to respond. Because there were no non-settling participants in the instant proceeding, the proposed settlement was unopposed.1

Notice two things:  First, the CRJs’ adopt the position of the MLC and the DLC that the only people who could object to the settlement were “participants”.  Who might that be?  Why the DLC and the MLC, of course.  There were other participants, most prominently the Songwriters Guild of America.  SGA was hounded out of the proceeding because the MLC apparently did not want to include SGA in the negotiation of a settlement.

I can understand the complexity of a three-way negotiation with those pesky songwriters about a matter that affects all the songwriters in the world who have ever written a song or that may ever write a song.  Those songwriters might really get in the way.  What I do not understand, however, is why the songwriters would not be afforded the opportunity to at least comment on the settlement that carries the awesome power of the Leviathan behind it.  I do understand how the rules came to be written the way they are, however.

And this leads to the other thing to observe about this ruling.  “Because there were no non-settling participants…the proposed settlement was unopposed.”  Rather tautological, right?  How can the settlement be opposed if those who might oppose it are not allowed to do so?

Let’s be clear what “opposition” means in this context.  You could just as easily say “improve” or “make fair”.  And lest you think that this is yet another example of sloppy legislative drafting in the mistake-prone Title I, this time I don’t think it’s a mistake.  I think it is exactly what the drafters intended.

But notice something else.  After the world “unopposed” the CRJs drop a footnote.  And it is this footnote that is probably the most important point to the unrepresented songwriters and startups who either couldn’t afford to participate or who were afraid of back alley retaliation if they did.

The Judges have been advised by their staff that some members of the public sent emails to the Copyright Royalty Board seeking to comment on the proposed settlement agreement. Neither the Copyright Act, nor the regulations adopted thereunder, provide for submission or consideration of comments on a proposed settlement by non-participants in an administrative assessment proceeding. Consequently, as a matter of law, the Judges could not, and did not, consider these ex parte communications in deciding whether to approve the proposed settlement. Additionally, the Judges’ non-consideration of these ex parte communications does not: (i) imply any opinion by the Judges as to the substantive merits of any statements contained in such communications; or (ii) reflect any inability of the Judges to question, [on their own motion without a filing from a participant] whether good cause exists to adopt a settlement and to then utilize all express or reasonably implied statutory authority granted to them to make a determination as to the existence…of good cause [to reject the settlement now or in the future].

This footnote is very, very important.  I would interpret it to mean that the CRJs may anticipate that they are directly or indirectly appealed or their decision is examined by the Congress that has ultimate oversight.  (Remember, the CRJs are not truly “judges” under the powers of the judiciary in Article III of the Constitution, but are more like administrative law judges under the powers of the Congress in Article I as the CRJs are part of the Library of Congress
The Copyright Royalty and Distribution Reform Act of 2004 (CRDRA) established the Copyright Royalty Judges program in the Library of Congress.”)

The fact is that the entire process is deeply flawed and fraught with moral hazard if not outright conflicts of interest.  And even if the rule makers manage to exclude the rule takers from the rule making, those pesky songwriters and the public will still comment and criticize.  The insiders can’t threaten to sue everyone.  While the CRJs cannot officially acknowledge the criticisms of the Leviathan by the governed for well-founded fear of the back alley tactics, this footnote is about as close to a “message received” as the governed is going to get.

For now.

Score one for the serfs.

 

Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

December 13, 2019 Comments off

When you negotiate with the 800 pound gorilla, the gorilla usually gets what it wants. Therefore exactly what it wants can be very important. In case you were wondering, from a trade policy perspective the 800 pound gorilla is the United States, the world’s largest economy and a largely open market, although increasingly less so […]

via Are US Trade Negotiating Objectives Regarding Digital Responsibility and Copyright Protection Evolving? (What the 800 Pound Gorilla Really Wants is Important for the Trade Partners of the US) — Hugh Stephens Blog

The Copyright Office Should Set Conflict of Interest Policy for the MMA Musical Works Database

December 11, 2019 1 comment

[This post originally appeared in the MusicTechPolicy Monthly Newsletter before the announcement of the MLC vendors.]

Title I of the Music Modernization Act is clear about a few things, one of which is the creation of the “musical works database.” That database is for a specific purpose-it is to be used by the mechanical licensing collective in fulfilling its statutory mandate to “collect and distribute royalties from digital music providers for covered activities” under the new blanket license.   Among other things, the MLC is also mandated to “[a]dminister a process by which copyright owners can claim ownership of musical works (and shares of musical works)”.

But the MMA also establishes a cohort of “special” people who can get <em>copies of the entire database</em>, a “bulk copy.”  And there’s the conflict of interest rub.  Not to mention the data integrity rub because as you’ll see, the last thing the Congress wants is to have inconsistent “official” databases floating around the ether, each claiming to be authoritative and more authoritative than the next.  (Without, of course, undermining competition for accuracy or efficiency with the “official” database.)

Authority of the Copyright Office to Create Database Conflict of Interest Rules

As the legislative history teaches us, the Congress is taking a critical look at how the musical works database is in fact utilized.  Congress is also onto the old database arbitrage rope a dope: “Music metadata has more often been seen as a competitive advantage for the party that controls the database, rather than as a resource for building an industry on.” (H.R. Rep. No. 115-651 and S. Rep. No. 115-339, at 8.)

Unsurprisingly, Congress also empowered the Copyright Office with the authority to establish regulations regarding “usage restrictions of the musical works database.”  The Copyright Office could take up that issue in the current rulemaking.  As the Copyright Office noted in the notification of inquiry for MMA regulations, “[t]he Office seeks public input on any issues that should be considered relating to the oversight of the MLC, including but not limited to conflicts of interest….” 84 Fed. Reg. 49966 (No. 185 Sept. 24, 2019).

The musical works database is to be used for a specific purpose to further the permitted work of the MLC and to be a national asset that is the definitive resource for copyright ownership of songs.  Congress did not intend for the database to be a leveraged byproduct of Title I that would allow special people special privileges.  The integrity of both the data and the database is of great importance to Congress and to the Copyright Office.

It is also clear that nothing in the MMA grants to anyone any ownership right to the musical works database or any data acquired in its establishment, not MLC, DLC or anyone receiving a copy.  Neither does MMA grant any right to sell or resell that data.  The Copyright Office clearly has an oversight role for any sales, a role the Congress takes seriously based on the legislative history as well as a host of public statements by Members and Senators.

So it will be entirely within the brief of the Copyright Office to establish rules to protect the public against both threats to database integrity and efforts at database arbitrage.  (In the eminently readable MMA, you will find this at 17 USC Sec. 115(d)(ii)(D)(bb)(E)(v) “Accessibility of Database” for those reading along.)

Who Can Get a Copy of the Entire Musical Works Database?

Title I requires that when established, the musical works database “shall be made available to members of the public in a searchable, online format, free of charge.”  Users of the blanket license, among others, are to get a free copy of the database in a “bulk, machine-readable format”.  This language appears to draw a distinction between members of the public looking things up onesey and twosey compared to getting a copy of the entire musical works database.

Congress clearly was drawing a distinction between casual users in the public and those whose needs relate to the operation of the blanket licensing system-users who are already paying for the creation of the database through the administrative assessment and don’t want to pay twice.

Fine so far, although given the siloed nature of reporting and accounting systems at the music services it remains to be seen just how much any of them would actually use a copy of the musical works database unless that “machine-readable format” was highly customized.  The cost of that customization would seem a cost more appropriately borne by the entity requesting the copy rather than socialized across all licensees.

The Vendor Conflict

But-Title I goes further.  And here is where the need for the Copyright Office to develop conflict of interest rules becomes acute.

“Authorized vendors” of users of the blanket license are also entitled to a copy of the database free of charge, but anyone not a user or a vendor of a user can pay for a copy of the database.  That’s consistent as far as it goes because vendors of users are working for someone who pays for the MLC under the administrative assessment (and indirectly pays for the establishment and maintenance of the database) and others do not.  Again, given that those vendors run existing systems that already talk to the systems of the licensees, the jury is out on just how many will want or be able to use this “free” copy as a practical matter.  Even so, what should not happen is that the data standard sinks to the lowest common denominator to accommodate a vendor’s legacy systems (#nofoxpro #nodos).

However, Congress drew a sensible distinction between (1) those who pay the administrative assessment or their vendors and (2) those who do not.  Congress is clearly making that distinction to fairly match benefits with burdens.

What Congress did not intend was for vendors of users to acquire a free copy of the musical works database that they then could use for their own purposes unrelated to the work these vendors performed for users under the blanket license that justified their free copy in the first place.

Neither did Congress intend to require songwriters and music publishers to be forced–as a condition of receiving payment of statutory royalties–to allow their song data to be transferred or licensed by the MLC to a vendor for the vendor’s own purposes as a quid pro quo.  An example could be inadvertently requiring overly broad terms of service or terms of use inserted in a click-through agreement as a condition for registration for the MLC’s claiming platform.

It also seems clear that if vendors of the MLC are to obtain their own copy of the database they would be treated like anyone else.  They would be included in the group that must pay a fee  for a copy of the musical works database “not to exceed the marginal cost to the mechanical licensing collective of providing the database to such person or entity”.  Congress could easily have given those vendors a free copy as they did with the vendors of users but didn’t.  (It seems that the situation may actually be going the other way–vendors are selling their data to the MLC.)

Extracting Data from Indie Labels

It is important to note that Title I also empowers users of the blanket license to obtain from indie labels all their song information, or use “[g]ood-faith, commercially reasonable efforts” to do so.  Do such efforts include suing to get the data?  Must the label bear the cost of providing the data?  Does this include updates?  Does the label warrant the accuracy of their data when used for a purpose for which it was not collected?  If the licensee must use “commercial reasonable efforts” to do so, does that imply that the label need not provide the data if it is not commercially reasonable to do so?  Is charging a market price reflective of the cost of the data to the label as well as updates commercially reasonable?  Is this another “taking,” this time from labels?

Congress clearly states that anyone purchasing a bulk copy of the musical works database must pay the marginal cost to the MLC.  But who pays the labels for the cost of the label data that is to be included in the musical works database and then sold by the MLC?  Do the labels get compensated?  At what price?

Clearly the Congress did not intend to set up a free rider issue here, so this is another area that is ripe for regulation.

Reselling the Musical Works Database

There is nothing in the statute that allows those obtaining a copy of the musical works database to resell that database or services derived from that database, including when those services do not relate to the purpose for which the database copy was obtained.  Neither does MMA permit the subsequent distribution, alteration, sale or reproduction of a permitted copy, i.e., all such copies must originate with the MLC as required by the statute.  In fact, Congress addresses the issue by allowing the Copyright Office to restrict such arbitrage.

Neither does the MMA restrict how a copy of the musical works database once purchased is to be valued on the books of the buyer, or whether it can be transferred to a new owner in the sale of that business or pledged as collateral.  Again, important issues for the Copyright Office.

Issue Spotting the Conflicts

The transfer back and forth of all of this data seems to create exactly the kind of moral hazard that cries out for conflict of interest rules of the road to accomplish the proper goals of Title I. This would, of course, have to prohibit co-mingling of existing data of a vendor with data acquired during the normal course of that vendor’s services.  This is easy to accomplish through the use of a clean room and is a best practice and common procedure in the tech industry (e.g., former employees with knowledge of competitor IP or business practices).

Clear conflict of interest rules would assure Congress that their mandate is not creating unintended enrichment of any particular vendor capturing data while working for either the MLC or users of the blanket license.

One might say that song data acquired by the MLC is just information that was essentially public anyway (we’ve heard that kind of argument before) so why restrict it.  I would suggest that argument is a bit of a dodge because even if true, the vendors didn’t in fact get the data through public means as available to anyone else as it was to them.  They got it because the statute required the information be given up in order to enjoy rights of a copyright owner-not to create an arbitrage opportunity.  All the more reason why conflict of interest rules are essential.

And of course such regulations would give the public comfort that the entire supply chain had proper oversight and transparency as well as a corrective remedy should anything go astray.

Therefore, it is entirely within the mandate of the Copyright Office to establish conflict of interest and data integrity rules of the road for all concerned.

Conflict of interest rules would address and require:

-Prior approval by the Copyright Office of any terms of service or terms of use that rights owners are required to click through in order to obtain their statutory royalties or other benefits, including registering with the MLC, claiming black box monies, or purchasing a bulk copy

-Notification of the Copyright Office of each copy of the musical works database distributed.

-The Copyright Office could easily publish that notification in the Federal Register for transparency.  Any transfer documents should be recorded with the Copyright Office and made available to the public for search

-“Flow down” language from the Copyright Office that must be included preemptively in any click through-agreements to insulate users

-Disclosure of pre-existing data held by vendors rendering services

-Disclosure of data submitted by rights owners (including labels) to the MLC that is made available by the MLC to its vendors

-Establishing a fee schedule of sums to be paid to rights owners (including labels) providing data

-Prohibitions on pledging the musical works database as collateral

-A mechanism for copyright owners (including labels) to opt out of being included in any copies of the musical works database transferred to vendors or sold to others

-Establish restrictions on ownership of the musical works database (which might come in handy if it is necessary for the Copyright Office to designate a new MLC)

-Clarifying the Copyright Office FOIA policy as it relates to the database

-Prohibiting co-mingling pre-existing data with copies received

-Prohibiting modification of permitted copies of the database (for the obvious reason of maintaining the integrity of the MLC as the authoritative source)

-Requiring all copies of the database be watermarked with origination and destination

All these guideposts are compassed by the Copyright Office mandate and should not require any amendments to the MMA.  If these issues remain unaddressed, I fear a real mess consistent with that old legal principle snafu fugazi fubar.

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.

Repost: The American Law Institute’s Restatement Scandal: The Futility of False “Unity”

December 4, 2019 Comments off

[Editor Charlie sez:  This is a post from 2/6/18 with an update from this week as noted.  MTP readers also might want to re-read this post about Spotify lawyer’s gratuitous attack on David Lowery.]

UPDATE: Senator Thom Tillis and Representatives Ben Cline, Martha Roby, Ted Deutch and Harley Rouda have written a letter to the American Law Institute asking what they think they’re doing with the fake “Restatement of Copyright” being written by Spotify’s lawyers and recipients of Big Tech largesse.  

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Now it’s the “Restatement of Copyright”, which is rapidly becoming a desk reference for the anti-artist crowd, led in this case by Professor Pamela Samuelson and Professor Christopher Sprigman.  Sprigman enjoyed a walk-on for the Spotify legal team in the Nashville Cases.  (Having achieved victory with a new safe harbor with the Music Modernization Act, Spotify may find that the Nashville cases are the last copyright infringement lawsuits they will ever defend.  So Sprigman’s role is significant in the anti-artist community.)

Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic process.  Why? To deny voters and their elected representatives their proper Constitutional role.  What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen and hiding behind the Restatement brand.

The potential for astroturfing is why the controversy should be of importance to artists–those who wish to advance the interests of the multinational tech companies can run their anti-copyright hustle through the back door by standing up a sympathetic Restatement in addition to spending hundreds of millions on lobbying at the front door.  If the companies doing the astroturfing or lobbying were Exxon or Aetna instead of Google and Facebook, no one would have to be told twice although that’s changing.

And yet the scandal is still a teachable moment for being far more selective and open-eyed about what we spend our time on and lend our names to.

What is a “Restatement”?

As Professor Risch notes in a 2015 blog post on the Restatement of Copyright controversy, there is a difference between the restatement approach and a treatise (such as Nimmer on Copyright) and should not be confounded:

Restatements generally boil the law down to a single rule (or few) on a given topic. There may be comments for specific applications of the rule based on cases, but the ultimate goal is to provide a cohesive structure of the law. A well-written treatise, on the other hand, may recognize that there is no single rule. Quite often, referral to the treatise is really to the footnotes, looking for a case citation in a particular circuit. Treatises might present different rules in different circuits.

The current scandal is over copyright, but it appears that the Restatement of Copyright is simply the current manifestation–similar controversies face ALI on its “Restatement of Liability Insurance Law” project as well as its “Restatement of the Law, Consumer Contracts.”  There may be others.

What is the “Restatement”?  Justice Scalia provides us with an explanation (Kansas v. Nebraska, 574 U.S. ____ (2015) (Scalia, J. concurring in part, dissenting in part):

I write separately to note that modern Restatements—such as the Restatement [at issue in the case at bar]—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be….And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.

Enter Professors Samuelson and Sprigman.  Revising the law is just their game.  And so here we are.  (MTP readers will remember Professor Sprigman represents Spotify and came up with another example of “revisionist” argumentation to claim on behalf of Spotify that mechanical streaming royalties don’t exist.  This sent some running scared to take the bait in the recent Music Modernization Act.  And of course who can forget when David Lowery took Samuelson to school with a Politico op-ed that was entered into the record of Samuelson’s appearance before the House Judiciary Committee by Chairman Goodlatte no less.)

It All Starts with a Cigar:  Samuelson Makes the Pitch

Professor Samuelson (she of the Samuelson-Glushko law centers, Silicon Valley’s answer to the Confucius Institutes) seems to have been the prime mover in the effort for a “Restatement of Copyright” as near as I can determine from a 2013 letter she wrote to the then-director of ALI:

You may remember that during the American Law Institute (ALI) Young Scholars Conference on Patent and Copyright Law held at Georgetown University Law Center in February 2013, I suggested that ALI should undertake a copyright reform project. I am writing now to follow up on that suggestion with a more concrete proposal for a project that articulates principles that courts, lawyers, and scholars can use without the need for legislation and that would provide an analysis and framework that would aid additional reform efforts. Such a project would enable the ALI to bring reason and order to this important area of the law and help clarify and simplify it in accordance with the lnstitute’s mission.

Of course, American copyright law is a creature of statute as they say.  Professor Samuelson knows this.  So when she proposes a “copyright reform project” that avoids the “need for legislation”, she is heading straight into Justice Scalia’s sweet spot regarding the restatements.  Or jar of vinegar, depending on your view.  It appears that the Restatement of Copyright was planned on being a cut above a 3L’s course outline and a notch below lecture notes from the start.

So–and we will come back to this–the entire Restatement of Copyright enterprise was doomed from inception.  Thousands of work hours were spent on this misadventure that was a results oriented process designed–as Professor Samuelson clearly states–to create an antidemocratic work around to the statutory copyright law.  Talk about your smoke filled rooms, Valley-style.

It’s Not Just Us:  Problems with Astroturfing on Other Restatements

It is cold comfort that this astroturfing may well be a pattern at ALI.  Consider complaints about the Restatement of Liability Insurance Law that could easily be made of the Restatement of Copyright:

The Restatement of the Law, Liability Insurance is the ALI’s first-ever project on the topic of insurance law and the ALI’s first-ever industry-specific Restatement. The ALI leadership made a sound decision to postpone a final vote of approval of this Restatement at the 2017 Annual Meeting to allow time for additional work on the project. The project Reporters’ subsequent announcement of a “listening tour” to address outstanding concerns with the Restatement also signaled the prospect of meaningful improvements. Despite these assurances, minimal changes have been made to this Restatement….The failure of the Reporters to meaningfully address key sections of the Restatement that generated concern at the 2017 Annual Meeting makes the ALI leadership’s decision to postpone the project ring hollow and suggests a “broken promise” to address legitimate outstanding concerns. Numerous aspects of this Restatement have generated concern for both insurers and non-insurers. The two examples discussed in the prior general counsel letter continue to illustrate key concerns. The Restatement continues to endorse a “new version” of the basic rule that contract terms are interpreted according to their “plain meaning” which would allow extrinsic evidence to be considered even when a contract is clear. This provision would create uncertainty, invite unnecessary collateral litigation, and set an unsound precedent with respect to the interpretation of insurance policy terms, and possibly terms in other types of contracts.

Sound familiar?  The pattern raises a much, much larger question about what is going on at ALI and how ALI is funded.

But in the Copyright restatement, it was clear from the beginning that Professors Samuelson and Sprigman were involved.  Who did Samuelson recommend to “help” the ALI with the Restatement of Copyright in her 2013 letter to ALI?

The Reporter or Reporters, the Advisers, and the Institute should be able to engage and draw on significant law school resources. These include, to give just a few examples, the Berkeley Center for Law & Technology at Berkeley Law (BCLT, http://www.law.berkeley.edu/bclt.htm), of which I am a Director and which has hosted important copyright events such as a conference commemorating the 300th anniversary of the Statute of Anne, a conference on orphan works and mass digitization, and a conference on copyright.formalities; the Center for Internet and Society at Stanford Law School (http://cyberlaw.stanford.edu/), which concentrates on public policy issues such as copyright and fair use; and the Berkman Center for Internet & Society at Harvard (http://cyber.law.harvard.edu), which focuses on cyberspace issues through projects and initiatives such as the Digital Public Library of America.

Does it really need to be said yet again that CIS and Berkman both get funding from Google?  And that Professor Samuelson’s interests are as close to Google’s interests as one is to two or that Professor Sprigman conducts Google-sponsored research?  For example, statutory damages for copyright infringement has long been an attack point of Big Tech and we get a preview of where they want it to go in Pamela Samuelson’s “Copyright Principles Project”–essentially abolished–like the controversial Music Modernization Act, another example of fake “unity.”

The Teachable Moment:  Take A Pass in Future

The result of participating in a project where Sprigman controlled the pen was knowable simply based on who was involved.  So why would anyone bother with these people and their Restatement of Copyright?  I bet the insurance lawyers are asking themselves the same thing about the Restatement of Liability of Insurance Law.

Did anyone really need to know of Samuelson’s 2013 letter or Sprigman’s 2014 proposal to have guessed that these people were not interested in the ALI’s founding principles, were agenda-driven and were unlikely to consider the interests of professional creators that drive our industry?

This is why the idea that there can be unity between the anti-copyright forces and the creative community is a farce.  I don’t know how many times these efforts have to blow up for people to understand that it is not worth engaging if you see certain names involved because the effort is not genuine.

Setting aside the potential corruption (which is a question across the board for the ALI in both the copyright and other restatement debacles), this is a teachable moment.  If anyone in the creative community is approached to participate in these things, do not believe that participation is worth it “to have a seat at the table” or any of the other metaphors for having your name used, abused and ignored in the final work product of whatever it is.  That this process repeats itself is almost as irritating as our lobbyists saying they are “friends” with the other side, that they are “fond” of an opponent.  If our people were in the room when those “fond friends” were discussing them, trust me–these “fond friends” do not return the affection.  They are not your friend and they are not fond of you.  And as Rogers & Hart wrote, unrequited love’s a bore.

Let me be blunt:  They are screwing you, get it?  And to be blunter still–there’s something to that.  These people are not stupid, they can see a sucker stepping up to the thimblerig.

So if you’re going to keep showing up for their tricks, do not cry about it afterwards.  There’s one answer when that call comes in–pass.

Embrace the Apocalypse.  There is no “unity.”  Or you can buy Bitcoin futures from the Winklevoss Twins.

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.

 

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