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MTP Podcast: The CASE Act and Senator Ron Wyden’s Google Connection

January 21, 2020 Leave a comment

Shownotes for the Podcast:

Even More Bad Faith From Ron Wyden on Copyright Small Claims Legislation musictechpolicy.com/2020/01/16/even…ms-legislation/

CASE Act Materials (Flow Chart, Explanation of Holds) artistrightswatchdotcom.files.wordpress.com/202…pdf

Senator Ben Sasse’s Data Center Influences–What’s Up With Senator Ben Sasse’s Vicious Little Amendment on Pre-72? musictechpolicy.com/2018/06/28/what…ment-on-pre-72/

Are Data Centers The New Cornhusker Kickback and the Facebook Fakeout? musictechpolicy.com/2018/07/09/are-…cebook-fakeout/

Even More Bad Faith from @RonWyden on Copyright Small Claims Legislation

January 16, 2020 Comments off

[This post first appeared on Artist Rights Watch]

Senator Ron Wyden is up to his old tricks–he’s got a secret hold on the CASE Act and is taking his usual ridiculous positions just to see if he can get away with it.  His day of reckoning has been coming for a long time and may have just arrived.  We don’t come to the Congress looking for a fight, but he does.  Maybe now he’ll get one.  Like any other bully, there’s only one way to make it stop.

Why would Senator Wyden care about the CASE Act?  Because Google does.  And why does Google care?  Because the CASE Act would provide meaningful relief to artists in all copyright categories caught up in DMCA hell, the ennui of learned helplessness brought on by the call and response of notice and counter notice that gives Google domain over vast numbers of copyrights from people who can’t afford to fight back in federal court.  And Google cannot have that.

So what is going on that prompted a kind and reasonable fellow like Copyright Alliance chief Keith Kupferschmid to accuse Senator Wyden of bad faith negotiations in the above tweet?   Quick recap:  Remember there’s new legislation working its way through Congress that would establish a new “small claims court” in the US called the CASE Act.  The immensely popular and bipartisan bill introduced by Rep. Hakim Jeffries, passed the House of Representatives on a 410-6 vote.  Yes, that’s right–410-6 in favor of the CASE Act.  (If you’re interested, you can download the CLE materials I put together for a recent bar association panel on the CASE Act.  This has a detailed explanation of holds, copy of the bills, and some other public materials.)

The legislation is now in the Senate which is the land of legislative secret holds and the kind of faux collegiality based on unanimous consent voting outside of the procedures we normally think of, especially floor votes.  At a high level, here’s how it works:  The Senate staff essentially emails around legislation and if no Senator objects to it, it is passed by unanimous consent.  Called “hotlining” this is pretty common in the Senate.  It does not require scheduling floor time and gets things done.

But see what they did there?  If just one–one–senator who objects to the hotlined legislation, it all grinds to a halt.  This is called placing a “hold” on the Senate version of a bill.  Which brings us to Senator Ron Wyden.

Senator Wyden has a history of placing holds on copyright legislation.  Most recently, he placed a hold on the Music Modernization Act in order to extract some further punishment for the old guys and dead cats who saw a glimmer of hope in the pre-72 part of the bill (Title II).  In what has become standard practice, the banshees from the Electronic Frontier Foundation and Public Knowledge swing into action with their Fear Uncertainty and Doubt campaigns in an effort to weaken copyright in any way they can get away with.

You know, these guys:

PK Google Shills

EFF Shill

EFF and Public Knowledge treated us to this kind of propaganda:

EFF Phone2Action

PK Phone2Action

Both EFF and Public Knowledge used the Phone2Action tool which features this permission set for Twitter that sure looks like it’s designed to create a bot net:

P2A TWITTTER annotated

So back to Senator Wyden.  EFF and Public Knowledge are not the only ones with ties to Google in particular and Big Tech in general.  Senator Wyden represents Oregon, but he is actually from Palo Alto in what was once called the  Santa Clara Valley, but is now generally called Silicon Valley.  And what does Silicon Valley need that Oregon has?

us-data-center-power-consumption

Huge honking amounts of electricity to run the massive data centers that power Big Tech and allows them to store fuflops of data about you and me.  Remember–it takes about as much electricity to run YouTube as it does to light the city of Cincinnati.  And unlike Teslas, etc., that run on the magical power of cherubic elves jogging on golden flywheels, Google needs the same electricity that comes out of the wall from whatever source it is derived.  Here’s some data on the data centers:

Data Centers

Needless to say, when you are groovier than thou Googlers, this little fact is distasteful and really jacks with your self-image.  Hence, Google seeks out “green” power as part of the mix–and here’s where Oregon comes in.  Courtesy of the taxpayer, i.e., you and me, Oregon happens to have a bunch of hydroelectric power from the Columbia and Snake Rivers Hydroelectric Project  that also extends into British Columbia.

Well, it’s not just courtesy of you and me, it’s also courtesy of the sacred lands given up by Native Americans for The Dalles Dam (Google’s main Oregon data center is located in The Dalles). The Dalles Dam has an interesting history with Oregon’s local Confederated Warm Springs Tribes and the Yakama Indians, too.  Thanks to the ever efficient Army Corps of Engineers and a bunch of federal taxpayer money, the Dalles Dam hoodwinked the tribes into giving up sacred land, which is now at the bottom of the reservoir, but that’s a story for another day.

heres-steam-shooting-out-of-the-dalles-data-center-in-oregon-as-its-cooling-down

According to The Oregonian:

Data centers have become one of Oregon’s biggest industries, with Google, Apple, Facebook and Amazon spending billions of dollars to buy and equip online storage facilities in rural parts of the state. They’re lured primarily by tax savings, which can shave tens of millions of dollars from a server farm’s annual operating cost.

Earlier this week, The Dalles city council and Wasco County commissioners voted to approve a package of “enterprise zone” tax breaks that exempts Google’s buildings and computers from local property taxes. The pact could save Google tens of millions of dollars or more over the 15-year life of the deal.

In exchange, Google will make an up-front payment of $1.2 million to local governments and $800,000 annually after that.

And who was formerly the chair of the Senate Energy & Commerce Committee?  You guessed it.

So back to Senator Wyden and his hold on the CASE Act (I won’t blame you if you’d prefer a shower right about now).  Remember that the CASE Act is the biggest threat to Google’s DMCA-based business model to come along.  So Wyden’s marching orders on the CASE Act is the same as it was on MMA and the same as it’s been for years.  Slow it down, weaken it, let the process grind it to bits if possible or extract so many concessions that it’s toothless or as toothless as it can be.

And that is why a good guy like Keith Kupferschmid is calling out Ron Wyden.  Because there’s #JustOne senator standing in the way of justice.

 

 

A Sad State of Affairs: Senator Wyden’s Secret Hold on CASE Act Comes to Light

October 29, 2019 Comments off
Wyden Alley

Creepy Senator Ron Wyden

Karl Herchenroeder reports in Communications Daily that Oregon’s legacy senator Ron Wyden has placed a “hold” on the CASE Act (the legislation creating a copyright small claims court), which essentially stops it from moving forward.  (The CASE Act is the result of extensive study by the Copyright Office that addressed the many issues involving creating the copyright small claims process.)

We had heard this hold was in place long ago, and Rep. Zoe Lofgren (D-Google) had foreshadowed it during the House Judiciary Committee mark up of the CASE Act on September 16.

In response to Rep. Lofgren’s threat, Rep. Doug Collins said that it was a “sad state of affairs” when one Senator could block the will of hundreds of Members of the House of Representatives.  Rep. Collins knows of what he speaks–Wyden placed a hold on the Music Modernization Act until he got concessions on pre-72 recordings being foisted on old guys and dead cats by the Public Knowledge Google shillery.

pk-google-shills

In the case of MMA, the House passed their version of the bill unanimously.  But Wyden had little regard for his colleagues and had his hold ready to go to keep his buddies from his home town of Palo Alto all happy.

So what is a “hold”?  If you don’t know that term, don’t be surprised.  It’s a largely secret process that allows any one Senator to stop a bill from being passed unanimously (which is the way most bills pass in the Senate).  Strategic utilization of holds is sometimes called a “senate strategy” by someone (like Google, for example) who can’t stop legislation in the light of day so they kill it in the shadows of the Senate ally.

According to the Congressional Research Service (in extraordinarily kind language, no shock):

The Senate “hold” is an informal practice whereby Senators communicate to Senate leaders, often in the form of a letter, their policy views and scheduling preferences regarding measures and matters available for floor consideration. Unique to the upper chamber, holds can be understood as information-sharing devices predicated on the unanimous consent nature of Senate decision-making. Senators place holds to accomplish a variety of purposes—to receive notification of upcoming legislative proceedings, for instance, or to express objections to a particular proposal or executive nomination—but ultimately the decision to honor a hold request, and for how long, rests with the majority leader. Scheduling Senate business is the fundamental prerogative of the majority leader, and this responsibility is typically carried out in consultation with the minority leader.

The influence that holds exert in chamber deliberations is based primarily upon the significant parliamentary prerogatives individual Senators are afforded in the rules, procedures, and precedents of the chamber. More often than not, Senate leaders honor a hold request because not doing so could trigger a range of parliamentary responses from the holding Senator(s), such as a filibuster, that could expend significant amounts of scarce floor time. As such, efforts to regulate holds are inextricably linked with the chamber’s use of unanimous consent agreements to structure the process of calling up measures and matters for floor debate and amendment.

The problem for artists with this senate strategy is three-fold:  First, Wyden always puts a hold on any legislation that could help artists.  It is easy to predict because he always does it.  It’s a bit odd in this case because the CASE Act is designed to help artists across all copyright categories as well as users who wish to have potential defenses clarified (such as fair use).  After all, it was Senator Wyden who told us (while putting a hold on SOPA) that he opposed legislation that was a “step towards an Internet in which those with money and lawyers and access to power have a greater voice than those who don’t.”  I think that’s exactly what the CASE Act is designed to remedy, yet Wyden still places his secret hold for the benefit of the richest corporations in commercial history.

Another problem for artists is that getting a Senate hold released usually involves someone negotiating with Wyden.  This negotiation often takes a “meet him half way” style, without taking into account what is being given up.  Sort of like, he’s raised five points and is willing to give up three of them, can’t you give him the other two and meet him halfway?  But one of the other two involves slitting  your own throat, so  you say no.  Then you are deemed “unreasonable”.  That doesn’t work.

I think the biggest problem is that Wyden is once again going to demonstrate an extraordinary lack of regard for his “colleagues” in the House who voted for and passed the House version of the CASE Act with 410 for and 6 against.  But let’s get it straight–he doesn’t care.  If anything he is only encouraged by a lopsided House vote as giving him even greater leverage.  That’s a nice bill you got there, it would be a shame if something happened to it in the Senate.

Let’s all understand that neither Wyden nor his benefactor Google are going to change their spots.  No reason to be surprised this time or next time and so a realistic advocacy strategy should have a “Wyden strategy” built in from the beginning.   We know that Public Knowledge and Electronic Frontier Foundation will take point for Google against us, so let’s not be surprised when it happens next time.

Google Shill EFF

So Wyden needs to be told to put his objections in writing and come out from the shadows.  Evidently he is going to put forward an actual amendment so the public will finally get to see what all the fuss is about.

And he can explain to his colleagues in the House why his point of view is superior to theirs.  Because what goes around comes around.

 

The Coming Crisis: #SayNoToZoe on CASE Act Threats

September 17, 2019 Comments off

The new copyright small claims court legislation (The CASE Act) passed the House Judiciary Committee, but not without thuggery from Rep. Zoe Lofgren and the Internet Association. Chris Castle narrates the issues and proposes a solution for Big Tech’s “Senate strategy” that inevitably includes Senator Ron Wyden, the grifter from Oregon and proud father of Section 230 of the Communications Decency Act.  Lofgren’s threat comes about 8:27:00 on the YouTube video here.

Internet Association Statement on CASE Act

Michael Beckerman

Ron Wyden’s Teachable Moment: Should one Senator be allowed to stop 415 Members of Congress on the Pre-72 Fix

Did a Wyden Campaign Donor Fund Hedge Fund Operated Out of Senator’s Basement?

Are Data Centers The New Cornhusker Kickback and the Facebook Fakeout?

The Mother’s Milk of Algorithms: Google Expands Its Data Center Lobbying Footprint in Minnesota–Home to Senator Amy Klobuchar

ACLU takes a gratuitous swipe at the Copyright Office using a Google “study” to allege bias.  ACLU Statement on CASE Act

See: ACLU Gets $700,000 from Google Buzz Award musictechpolicy.com/2011/10/31/the-…r-the-company”/

ACLU Helps EFF With DMCA Delaying Tactics musictechpolicy.com/2010/07/07/aclu…laying-tactics/

ACLU Cribs from Google Lobbyists on Pro-Piracy Letter to Congress musictechpolicy.com/2016/05/04/why-…ns-from-google/

aclu cy pres

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