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

June 27, 2018 Comments off

It’s rare that we get insight into just how sleazy the Congress can be–but Senator Ron Wyden is giving us all a guided tour when it comes to his singular dedication to screwing pre-72 artists.  There is a process in the Senate called a “hold” (see this memo from the Congressional Research Service describing the rules for holds) which can seriously slow down passage of legislation.  Any one senator can put a hold on any bill, and Senator Wyden appears to be threatening to put a hold on the Music Modernization Act if he doesn’t get significant changes to the pre-72 fix, probably before Thursday’s “markup.”

That would be the pre-72 fix in the CLASSICS Act that was just passed by 415 Members of the House of Representatives.  That’s right–ONE senator can replace the judgement of FOUR HUNDRED FIFTEEN elected representatives of the American people.  ONE senator can crush the hopes of thousands of pre-72 artists or their heirs, because some people have waited so long to get a fair shake from the Congress that they died.

Why would any senator do such a thing?  You can kind of understand this anti-democratic shenanigans on a controversial bill, or a bill that barely passed the House.  On this bill, however, I have to believe that Wyden’s threatened hold can only be explained by blatant cronyism and swamp fever.  And Oregonians need to know the dark side to Ron Wyden.

MTP readers will remember the story of Senator Ron Wyden (D-OR) and his descent into the swamp.  You might think, what’s a senator from Oregon doing up to his eyeballs in cronyism and the slime?  Easy answer–cheap hydroelectric power from Oregon’s part of the Columbia River that powers many huge data centers owned by…you guessed it…Google, Facebook, Amazon, Rackspace.  Cheap power that goes straight to their bottom line.

 

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

Columbia River water vapor burned by Google’s Data Center at The Dalles, Oregon

 

All get tax breaks of dubious value to Oregonians according to a state audit and cheap power, crowding out local businesses and residents.  Each job created by these highly automated data centers costs the local communities up to $800,000–which might make it worth it to pay the companies to stay away.

Google, Facebook, Amazon and Rackspace all are members of the Internet Association, home to Mr. Shoegazer who gives “voting with your feet” a whole new meaning.   Google and Amazon are also members of the Digital Media Association or “DiMA”.  And DiMA’s grubby little paws are all over the Music Modernization Act, particularly the blanket mechanical license which reads like tech industry lobbyists wrote it.

And Google’s grubby little paws are all over Public Knowledge and the Electronic Frontier Foundation, both card carrying members of the Google Shill List and both leading the charge against the CLASSICS Act, now part of the omnibus Music Modernization Act in the Senate.  Remember, the omnibus Music Modernization Act includes CLASSICS as the fix on the pre-72 loophole .  CLASSICS allows artists who recorded prior to 1972 and their heirs to benefit from digital royalties when their recordings are played on SiriusXM, Pandora or any other noninteractive radio platform.

Wyden has proposed an insanely complicated and unworkable alternative to the version of CLASSICS that got the Music Modernization Act passed in the House.  The only reason that anyone is taking him seriously is because of his threatened hold and he’s going to try to jam this philistine and nonsensical alternative right down the throats of all the artists who had their hopes lifted when the House passed the bill unanimously.

All that Wyden is doing is using the hold system to leverage his way into jacking with the copyright term and throwing a bone to Google, Lessig and the entire anti-copyright and anti-artist crew.

And here’s what he should get for it…

Nothing.

He should get nothing at all and should be sent packing.  Let him place his hold and see what happens.  He may be narcissistic enough to believe that he’s entitled to replace the vote of 415 of his colleagues with his own cronyism, but we don’t have to buy it.

Nothing.  He gets nothing.

 

Silicon Valley “Nonprofits” are Back at the Class Action Trough

January 6, 2013 Comments off

The Facebook “Sponsored Stories” class action settlement has been finalized.  Silicon Valley watchers will  immediately look for the “cy pres” award, which is cash money paid out of the class action settlement to certain “nonprofits” approved by the court.  What we have come to know is that if there is a class action involving a tech company, especially in the Northern District of California (San Francisco), you can bet that the same names will appear to further “outreach” (is that what it’s called?).  The “Sponsored Stories” settlement tells us:

The not-for-profit entities that might receive payment under the Settlement are involved in educational outreach that teaches adults and children how to use social media technologies safely, or are involved in research of social media, with a focus on critical thinking around advertising and commercialization, and particularly with protecting the interests of children. They are: Center for Democracy and Technology, Electronic Frontier Foundation, MacArthur Foundation, Joan Ganz Cooney Center, Berkman Center for Internet and Society (Harvard Law School), Information Law Institute (NYU Law School), Berkeley Center for Law and Technology (Berkeley Law School), Center for Internet and Society (Stanford Law School), High Tech Law Institute (Santa Clara University School of Law), Campaign for Commercial-Free Childhood, Consumers Federation of America, Consumer Privacy Rights Fund, ConnectSafely.org, and WiredSafety.org.

As Fortune‘s Roger Parloff noted in his prescient article, “Google and Facebook’s New Tactic in Tech Wars“,  Google was called out for this practice in the Google Buzz class action in which it gave money to the Electronic Frontier Foundation, the Center for Democracy and Technology, the Berkeley Center for Law and Technology, the Berkman Center for Internet and Society, the Stanford Center for Internet and Society, and Santa Clara University:

[The Electronic Privacy Information Center] and seven other privacy-focused nonprofits objected to their exclusion from the [Court’s initial award order] protesting that the plaintiffs lawyers and Google had, in effect, arranged to give the majority of those funds “to organizations that are currently paid by Google to lobby for or to consult for the company.” (The EFF, CDT, and CIS all reject that characterization of their relationship to Google. They aver, rather, their complete independence, and stress that any corporate donations they accept are “unrestricted” in nature — meaning that they come with no strings attached. [However, none of these groups objected to being characterized as lobbyists for Google at the time they got the Google money, or ever since to my knowledge.]) [My emphasis.]

[The Google Buzz judge] granted EPIC’s request, carving out a $500,000 tranche for it. (At the same time he spontaneously — without prompting from anyone — sliced off another $500,000 piece for an ethics center at Santa Clara University[.])

So as Mr. Parloff noted, certain policy shops get money directly from Big Tech and then they get even more in directed class action settlement payments (none of which was disclosed in the court ordered disclosure in the Oracle v. Google case:

[A]t least half of the [award] recipients in [the Google Buzz and Facebook class action] cases would very likely be getting at least some donations from Google or Facebook this year, whether or not any suit had ever been lodged against them. For instance, the Center for Democracy and Technology (CDT), which got $500,000 from the Google Buzz cy pres award in 2011, received $340,000 in voluntary contributions from Google the year before. It’s now slated to receive $1 million from the proposed Facebook award, though Facebook has been listed as one of CDT’s leading e-commerce benefactors since at least 2009. Similarly, the Center for Internet and Society at Stanford (CIS), which received $500,000 from the Google Buzz award, had collected $400,000 in voluntary contributions from Google the year before (which amounted to 51 percent of CIS’s total revenue that year). This year CIS will collect $600,000 from Facebook’s Sponsored Stories settlement, if approved. [Not to mention the $2 million that CIS got from Google during Professor Lessig’s tenure at CIS.]

As Andrew Orlowski asked after the Google Buzz payouts: “What do you do when a global corporation pays out millions to the watchdogs that we expect to protect us against it?”

If you are settling into your individual role in the Big Tech oligarchy (or what Eric Schmidt calls the “Gang of Four”) remember that the way the British established the Empire was through a series of steps.  First, they sent in the missionaries.

UPDATE:  Andrew Orlowski made an excellent point about a perversity in the payout structure of the “Sponsored Stories” settlement:

In an annoying loophole, even if all the class-action litigants claim their 10 bucks they still might not stop the payout to the cy-près beneficiaries… If TOO MANY people submit a claim form, and the “number of claims made renders it economically infeasible to pay money to persons who make a timely and valid claim”… then “payment will be made to the not-for-profit organizations identified in Section 7 of this Notice”.

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