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Posts Tagged ‘David Lowery’

The Times of London Confirms that Google is Behind Astroturf “Opposition” to Article 13

August 8, 2018 1 comment

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Since the earliest days of MTP, we’ve been pushing what has come to be called the “value gap”–the margin of profit that Big Tech makes from playing games with the DMCA safe harbor (and the Section 230 safe harbor in the Communications Decency Act).  In 2006 we called this “The DMCA is Not an Alibi” and pointed the finger directly at the biggest offender–Google and in particular its YouTube subsidiary.

We’ve also pushed the facts on how Google creates fake astroturf groups which has been going on for years and in countries other than the United States.  While no one has ever looked too hard at what happened in SOPA opposition in the US and ACTA resistance in Europe, the circumstantial evidence suggests that there’s a mismatch of grand proportion between the number of “people” who show up for anonymous or near anonymous online “protests” yet nearly zero warm bodies show up in person to protest, say, Copyright Office Roundtables on modifications to the DMCA safe harbor.

This was even true of the White House petition on SOPA–there were no geographical boundaries on who could sign up to a White House petition, which is the least that you would think that the President of the United States would try to accomplish on a petition that directly affected U.S. law.  We’re assuming that the same rules applied to all White House petitions, but it ain’t necessarily so–given Google’s White House influence, restrictions could have been dropped for SOPA alone.

We saw it once again with the Article 13 vote in the European Parliament.  Millions participated in what could legitimately be described as a last minute DDOS style attack on the European Parliament–again, anonymous or near anonymous and largely unverifiable communications shrouded under the shield of “constituent communications” with no way to verify in real time exactly who these people were.

This makes no sense–why is it that the only time the anti-copyright crowd can summon large amounts of data is when no one knows who they are?

David Lowery and Volker Rieck writing in The Trichordist have put their finger right on exactly how Google accomplishes this policy bombing with stunning exposes of OpenMedia and New/Mode, the two organizations that seem to be funded by Google and are as close to what Mr. Rieck called the “political hack” of the European Parliament as one is to two.

We also posted on MTP about this issue and called on EU public prosecutors and the European Commissioner for Competition Margrethe Vestager to investigate the entire process.

The reason we mentioned Margrethe Vestager is because the week of the Article 13 intimidation campaign, the European Commission fined Google some $5 billion.  Understand that Google got involved late in the Article 13 debate and stood up its astroturf campaign very late in the cycle–this would have been right about the time that Google knew it was about to be the subject of yet another multi-billion fine for its bad behavior.

These competition actions don’t happen in a vacuum and there is a lot of dialog with the companies subject to the fine, so it is hard to believe that the timing of the announcement by Commissioner Vestager as well as the amount wasn’t well-known to Google when it dropped the hammer on Article 13’s astroturf campaign.  Not only that, but when the usual suspects called me out, I knew I was onto something.

Fortunately, David’s first rate investigative report on the astroturf campaign caught the attention of as august journal as The Times of London (“Google funds website that spams for its causes”) which confirmed David’s story with its own independent investigation.  It is becoming increasingly apparent that in a post-Cambridge Analytica world, do we take these aberrant behaviors as normal or do we question them?

None of Google’s attacks on government should be surprising–anarchy is in their DNA.  As former Obama White House aide and Internet savant Susan Crawford tells us:

I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it.  We could avoid it.  These people were irrelevant.

There seems little doubt that Google paid off Open Media to do its political dirty work–the question is, do the Members of the European Parliament want to sit there and keep getting abused by an antagonistic multinational corporation, or do they want to do something about it.

The Slippery Slope of Censorship: @HuffPost Pulls Story Critical of @Spotify Ahead of IPO — The Trichordist

January 9, 2018 Comments off

Artists Rights advocate Blake Morgan (#IRespectMusic) published a story in the Huffington Post this morning critical of Spotify. The story was rapidly gaining traction when it was suddenly deleted and Morgan received this email from the Huffington Post telling him he’d been censored From: Bryan Maygers Subject: Spotify’s Fatal Flaw Exposed Date: January 8, 2018 at 11:43:41 AM EST […]

Here’s Blake’s piece in its entirety.

Spotify’s Fatal Flaw Exposed: How My Closed-Door Meeting with Execs Ended in a Shouting Match

I love streaming.

I love making playlists, I love being able to download streamed music so I can listen when I’m offline, and I love being able to bring that music with me. In short, I think it’s a great distribution method.

What I don’t love is how little musicians get paid for all that streaming. It’s not fair––not even close. What’s more, middle-class music makers are the ones who are hit hardest, whose businesses are threatened, and whose families are put at risk. So how can I be against the way streaming companies treat musicians but not be
against streaming itself?

The same way I’m against the electric chair, but not against electricity.

Read the complete post on The Trichordist:  The Slippery Slope of Censorship: @HuffPost Pulls Story Critical of @Spotify Ahead of IPO — The Trichordist

A must read post on @thetrichordist by @davidclowery: A Compromise Proposal to Fix Streaming Royalties,Licensing and Notification

June 28, 2017 Comments off

I have a feeling I’m about to wander off the reservation here. I say this because what I’m about to propose is essentially a modification of a potential legislative proposal that rumor has it the NMPA is floating. That proposal seems to be generating some negative backlash in songwriter/publisher community (whether it deserves it or […]

via @davidclowery: A Compromise Proposal to Fix Streaming Royalties,Licensing and Notification — Artist Rights Watch

Google and Amazon Leverage Copyright Loophole to Use Songs Without Paying Songwriters

October 15, 2016 4 comments

Two vastly wealthy multinational media companies are exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. Why? Because Google and Amazon–purveyors of Big Data–claim they “can’t” find contact information for song owners in a Google search. So these two companies are exploiting songs without paying royalties by filing millions of notices with the Copyright Office at a huge cost in filing fees that only megacorporations can afford–an unprecedented land grab in nature, size and scope.

That’s right–Google and Amazon are falling over themselves to use their market power to stiff songwriters yet again. And as I will show, it is not just obscure songs that are affected. New releases, including one example from Sting, are also targets suggesting significant revenue loss to songwriters.  (I go into this in more detail on this series of posts.)

I happened to speak to a representative of one of the mass NOI filing companies after a recent panel in Los Angeles who assured me that the reason that his clients were filing these NOIs was not because they did not want to pay royalties but because they were so worried about liability from a “Jeff Price jihad” and that his clients fully intended to pay royalties retroactively once the song owner became known unlike the record companies who are “thieves”.   I believe that he believes that his client believes that they’re just trying to avoid being sued for not having the rights, but humor this unbeliever.  My bet would be that getting that retroactive payment will take the effort worthy of an act of Congress.

Perhaps literally.

If his new boss clients had a reputation for or history of treating creators fairly, I’d be far more inclined to bet on sunshine and puppy dog tails, but they don’t so I won’t.  The problem would be easy to solve–all they would need to do is issue a press release or even a blog post on the Google Public Policy blog stating that it is the official position of the company to pay retroactively.  Even if you accept his premise that record companies and music publishers are “thieves,” they never filed millions of NOIs.  In the meantime while we’re waiting for that post, I think we have to act as if it is not coming.

The U.S. Compulsory License

Songwriters are the most regulated workers in America. The government sets wage and price controls on most uses of songs and practically everything else about a songwriter’s business–except fulfilling government’s basic role of keeping them safe from piracy and multinational monopolists gaming the system. Congress needs to stop this latest scam.

The latest loophole that Google and Amazon are hacking is uniquely American–the compulsory license for songs. No other country has one. Most songwriters would prefer that the U.S. repeal this legacy anachronism from 1909 that keeps the government’s boot on their throats.

In order to get the government’s license, services only need notify the songwriter (or their publisher) that the service intends to use the song under the compulsory license. Of course, sending this notice of their intention to use the song (called an “NOI”) requires knowing who to send it to, and that is the “hack” that Google and Amazon are exploiting now. Others services surely will follow their market leadership if Congress fails to act.

The hack uses market power to manipulate a loophole in how those NOIs are sent. Common sense tells you that to send a notice, you must know who to send it to, even for a song. But does common sense also tell you that if you don’t know, the law should allow you to exploit the songs without compensation? Particularly if you’re the biggest purveyor of data in human history?

The legacy compulsory license allows services to exploit songs if they decide they can’t find the songwriter–and not pay royalties until the songwriter finds them.

That’s right–Google and Amazon trade on a loophole that allows them to serve NOIs on the U.S. Copyright Office if the song owner cannot be found in the public records of the Copyright Office regardless of what other information is readily available to these services, including their own. And once Google or Amazon serve that “address unknown” NOI, they don’t have to pay royalties and they cannot be sued for copyright infringement–so the millions in filing fees they will spend at the Copyright Office is a kind of insurance premium. This excerpt from the Copyright Act states the rule:

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Why Can’t Google Search?

The “address unknown” NOI starts from this premise: Google is supposed to search for the song owner’s contact to send NOIs.

That’s right–Google is supposed to search. Think about that. This 1976 rule was never intended to apply to a music user with Google’s search monopoly. Yet, if Google “can’t” find the song owner after a search, then Google can serve an “address unknown” NOI to the Copyright Office and then exploit the song for free until the songwriter can be “identified” in the Copyright Office records–which may be never.

That registration by songwriters–while prudent–is costly and entirely voluntary. Forcing songwriters to register essentially turns the system into a version of YouTube’s “opt out” debacle, and probably violates international copyright treaties.

But the idea that Google can’t find someone is a remarkable thought. Gmail alone has over one billion users. Google knows everything about everyone and makes billions of dollars from reselling and manipulating that information. Not to mention the fact that Google bought the music licensing service Rightsflow–itself an NOI mill. Not to mention ten years of information Google has scraped from Content ID on YouTube or sheet music on Google Books.

Amazon also has a phenomenal amount of information about music ownership. As one of the biggest CD and DVD retailers, Amazon certainly has a head start in song research.

However–it appears that Google and Amazon are not using their own data for NOIs. Instead, they apparently are buying databases from the Library of Congress that tell them whether a song is registered for copyright or otherwise recorded in the digitized Copyright Office files (which songwriters are not obligated to do in order to get the benefits of the compulsory license). Those Library of Congress databases at best only cover copyrights after 1978 for technical reasons, so tens of thousands of jazz, blues and classical compositions created before 1978 are not included, as well as songs from outside the US before or after 1978.

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Why buy this data when these giant corporations already have so much information at their fingertips? Because the point for the services is not to find out who actually owns the songs, the point is to find out if the Copyright Office has a record of who owns the songs based on the Library of Congress data.

That is the hack.

Kafka-esque Moral Hazard

In other words–the government allows Google to claim they can’t find the songwriter even if Google’s own data would reveal their identity just because the song owner isn’t included in the Library of Congress database at the time Google searches. And there’s the “gotcha”.

Kafka’s next book is in there somewhere.

Offering all the world’s music all at once presents a licensing problem that no system will be able to solve due to the sheer numerosity and disaggregation of the creative process. How many songs will be written by the time you finish reading this post and how would you find out who wrote them?

So it should not be surprising that the market has offered a few ways to solve for this problem: Direct licenses (bypassing the NOI altogether) and NOI clearance companies that specialize in maintaining song owner information to send out mass mailings of NOIs (sometimes called “carpet bombing NOIs”).

These are two significant methods available to Google and Amazon and my guess is that these monoliths employ both methods for their interactive streaming services (the kind of service that competes with Apple and Spotify).

What’s the Alternative?

If Google and Amazon cannot find the song owner under their direct licenses or through an NOI company, how can they find the song owner? The easy answer is don’t use the song. But that approach is counter to offering all the world’s music at scale by creating supply that is not responsive to demand.

Deciding which songs are right for “address unknown” NOIs requires some Silicon Valley style hocus pocus. Remember–it’s not that Google can’t find the song owner. The loophole requires that they can’t find the copyright owner in the pubic records of the Copyright Office, even if Google has actual knowledge of their whereabouts.

Then you have to believe that Google knows where to get the information for which direct licenses they want, they know how to carpet bomb NOIs, they have a decade of information in Content ID, but when it comes to some songs, Google has to turn to the Library of Congress? And Google’s only choice is to serve “address unknown” NOIs on the Copyright Office?

Once served, the Copyright Office posts these mass filings on their website in large Excel files so that songwriters can sift through the haystack to find their needles. This hit and miss and self-serving process is fraught with moral hazard and should not be the law in 2016.

This is what the filing looks like–but realize that “1 NOI” means “1 NOI With An Excel file with over 40,000 songs on it”.

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Sting Songs Give Some Examples

A spot check of a couple of Google’s filings reveals that Google is not getting it right. Let’s use three Sting songs for an example.

Sting’s recent release “50,000” (coincidentally a tribute to David Bowie and Prince) is on Google’s “address unknown” NOI list. That song is probably subject to a direct license, but the song copyright registration may not yet have been processed. There’s almost always a delay in processing copyright registrations, so new releases will rarely appear in the Library of Congress database day and date with the song’s release. Google will not be paying royalties on Sting’s song, but will be exploiting it.

That’s right–a song that is a tribute to an artist rights advocate like Prince is itself being ripped off.

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Google has also filed an “address unknown” NOI for a song entitled “Fragile (Live)”. My bet is that “Fragile (Live)” is “Fragile”, the well known hit song and anthem of the environmental movement.

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This likely means that someone at Google seems to think–or wants to think–that “Fragile (Live)” is a different song than “Fragile”, probably because there is a sound recording registered for “Fragile (Live)” in the sound recording metadata but no song registered by that name in the Library of Congress database. And why would there be if it is the same song? We humans have a way to catch this kind of mistake.

It’s called listening.

This pattern repeats with “Brand New Day (Cornelius Mix)”, also included on Google’s “address unknown” NOI. Again, a version of the sound recording, not the song. The song remains the same.

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It is highly likely that the songs “Fragile” and “Brand New Day” were registered with the Copyright Office long ago. That’s probably why the “Live” and remixed versions of the sound recordings show up in Google’s NOI filing for the songs and the original versions do not.

In this case, not only are these songs likely covered under a direct license with Sting’s publisher, but even if they are not, the song owner’s information is identified in the public records of the Copyright Office. The loophole does not apply, but Google takes it anyway and the cost of checking up on a multinational media company falls on the songwriter.

And given that it’s Google, the songwriter will probably have to sue them to a final non-appealable judgment in order to fix the mistake that should never have been allowed to happen in the first place.

The Congress Must Act

The government’s compulsory license has become distorted by rent-seeking behavior by multinational media corporations. It should be stopped or substantially modified. If Google is allowed to use this loophole to profit at the expense of songwriters from its considerable influence peddling and litigiousness, that will be crony capitalism writ large.

Despite the assurances of the mass NOI filing agent, my view is that until I see it in writing, I have to assume that Google and Amazon took this route because it not only offered an opportunity to react to Jeff Price or David Lowery who have the temerity to speak up on behalf of song owners, it had the added bonus of actually stiffing songwriters. The reason I think that is so is because that’s what they chose to do rather than taking the obvious alternative–just not using someone’s property if you decide you can’t find the owner.

Watch this Space: MTP Podcast on 100% Licensing with Michelle Lewis and Kay Hanley of Songwriters of North America, David Lowery, Chris Castle coming soon

August 12, 2016 Comments off

Next week we will continue discussion of the Department of Justice [sic] ruling on 100% licensing and partial withdrawals from the songwriter’s point of view.

Participants will be songwriters Michelle Lewis and Kay Hanley of Songwriters of North America, David Lowery and Chris Castle.

Watch this space for links to the podcast when it is completed, probably August 17/18.

In the meantime, you can subscribe to the MTP Podcast on iTunes or on Stitcher.  More recent podcasts can also be found on SoundCloud.

For background, check out the MTP podcast with Steve Winogradsky, David Lowery and Chris Castle on the technical aspects of the DOJ’s decision.

The MTP Podcast: The Consequences of DOJ’s New Rule on 100% Licensing with David Lowery, Steve Winogradsky and Chris Castle

August 10, 2016 1 comment

David Lowery, Steve Winogradsky and Chris Castle discuss the implications of the new rule by the U.S. Department of Justice re-interpreting the ASCAP and BMI consent decrees to require 100% licensing and prohibiting partial withdrawal.

David Lowery is the founder of Cracker and Camper van Beethoven, leading artist rights advocate and writer of The Trichordist blog, and teaches at the Terry School of Business at the University of Georgia at Athens.

Steve Winogradsky is a senior music lawyer and co-proprietor of the music services company Winogradsky/Sobel in Los Angeles.  Steve teaches at UCLA and Cal State Northridge and is the author of a leading legal handbook Music Publishing: The Complete Guide.

Chris Castle is founder of Christian L. Castle, Attorneys in Austin, Texas and edits the MusicTechPolicy blog.  He is formerly an adjunct professor at the University of Texas School of Law, and lectures at law schools, music schools and business schools in the U.S. and Canada.

“Where’d You Get the Music” performed by Guy Forsyth.

Subscribe to the MTP Podcasts on iTunes.

Topics Covered:

–The DOJ’s new rule in the ASCAP and BMI consent decrees.  Background link to DOJ statement and link to BMI’s “pre-motion” letter to BMI rate court judge outlining BMI’s objections to new DOJ rule.

–Will songwriters have to indemnify PROs for antitrust violations of failing to renegotiate licenses?

–Who bears the administrative costs?

–How DOJ’s new rule is actually anticompetitive and anticompetitive aspects of direct licensing.

–Is DOJ rule Google’s payback to Pharrell Williams refusing to license for YouTube?

–Devastating impact on music in television programs and motion pictures, “WKRP revisited”

–Google’s influence on the new rule through Renata B. Hesse, the new head of the Antitrust Division.  Background link: How Google Took Over the Justice Department Antitrust Division: Renata Hesse’s Timeline

–What is the plain English version of the new rule?

–How U.S. Copyright Office rejected DOJ’s position.  Background link to Copyright Office report rejecting DOJ’s position.

–DOJ requirement that songwriters renegotiate split agreements on every song registered with ASCAP and BMI

–Genre-based impact on hip hop and country music.

 

Next up:  Michelle Lewis and Kay Hanley of Songwriters of North America and David Lowery discuss DOJ ruling from songwriter’s perspective with Chris Castle.

Watch this Space: MTP Podcast on 100% Licensing with David Lowery, Steve Winogradsky, Chris Castle coming soon

August 6, 2016 Comments off

The MusicTechPolicy podcast is back!  Next week we will kick things off with a discussion of the Department of Justice [sic] ruling on 100% licensing and partial withdrawals.

Participants will be David Lowery, Steve Winogradsky of Winogradsky/Sobel and author of Music Publishing: The Complete Guide and me.

Watch this space for links to the podcast when it is completed, probably August 10/11.

In the meantime, you can subscribe to the MTP Podcast on iTunes or on Stitcher.  More recent podcasts can also be found on SoundCloud.

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