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

October 29, 2019 Comments off

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

January 14, 2019 1 comment

Data profiling requires a lot of computing power.  Really a whole bunch.  When you’re talking that much electricity, you’re talking government.  When you’re talking government, you’re talking lobbying.

And in this case, looking at the political landscape from the data center point of view might explain a whole lot of oddball results.  Like why do Senators from Oregon and Nebraska seem ready to abandon their constituents in favor of a bunch of out-of-staters that don’t have another connection to their states?  And which moves are Google making now that might position them to be influential again in US presidential politics in 2020 and also be bad for the creative community?  Maybe having juice all comes down to having the juice.

When Google and Facebook are scraping all your personal information and hosting all that user-generated pirated content, they need to really work over their algorithms.  Bigly.  And crunching algorithms requires gigantic data centers and gigantic data centers don’t run on magic elves.

No, electricity is the mothers milk of algorithms and electricity doesn’t come from magic elves generating special energy on treadmills imported from the Undying Lands.

How much electricity does it take for Google to invade your privacy…sorry…be Google?  Google has not, to my knowledge, updated its voluntary 2011 disclosures on energy use. In 2011, Google’s continuous energy needs were roughly what it would take to power 200,000 homes in the U.S.–say Salt Lake City, Yonkers or Little Rock.  Approximately 80% of that electricity is Google’s data centers.  And that was eight years ago.  According to a 2016 feature in the Guardian, Google accounts for the lions share of approximately 2% of greenhouse gas emissions in the world that power data centers.  That’s right–the world.  So presumably the reason they haven’t updated those 2011 disclosures is because the Google climate news isn’t good.

Google would like you to believe that they offset their carbon footprint through investing in renewable energy, which they do to a degree.  But the people who really do the big investing in Google’s renewable energy needs are not just Google–they are that old standby, the old reliable for corporate welfare, the innovator of last resort.  That’s right.

You.

We’ll come back to how you do that in a minute, but rest assured.  You won’t be shocked, shocked.  And we’ll always have Paris.

Regardless of who’s building their infrastructure, Google’s energy drain would make Google a very big electricity customer–very big.  And then there’s Amazon and Facebook, too.  Internet Association types, you get the idea.  (Someone has to pay for Michael Beckerman’s $4,000 shoes.)

My bet is that the demand for electricity to run those algorithms needs to be spread out so hopefully nobody will notice the affect on the climate that the Silicon Valley party is having.  This is due to the massive draw down of electricity and the crowding out of local users in the lucky localities where the taxpayer pays Google to locate their data centers.  Where these data centers are located can create considerable political leverage for the already over-leveraged Google.

Let’s take a look at the most recent example, Google’s new data center in Minnesota, home to Senator Amy Klobuchar. (Senator Klobuchar was included in the recent list of potential 2020 Democratic Party presidential candidates in Politico.)  Senator Klobuchar is–or at least was–a long-time ally of artists in the U.S. Senate.

According to Minnesota Public Radio, the biggest utility in Minnesota is selling over 300 acres of land to Google to locate a new $600 million data center in the city of Becker, Minnesota not far from Minneapolis.  Fair market value, right?  Maybe not.

After the data center is built, Google will immediately become one of the utility’s five largest customers.  Although the utility “plans” to have “most” of Google’s data center needs met by renewable energy by 2050, it currently operates the largest coal-fired generator in Minnesota and is scheduled to replace that plant with a natural gas facility in the near future.

In order to get that natural gas plant paid for and opened, former Governor Mark Dayton side-stepped the customary process before the Minnesota Public Utilities Commission.   How?  Google’s favorite method of avoiding local elected officials–lobbying the state legislature.

What a coincidence.

And why was that new plant so important?  According to local press, “[p]roponents say the legislation [authorizing the natural gas generator] is necessary to stabilize the Sherburne County economy, which will be hurt by the coal generators’ demise.”  Sounds important.  Sounds like back scratching–we can only get Google to move here if we get rid of coal, and we can’t get rid of coal without spending some more of the taxpayers’ money–not Google’s money, your money–on a new power plant.

How do you think the Mayor of Becker (population 4,568) feels about Google coming to her town?  Think she’ll get in the way after the Governor and the state legislature have already mandated what is to go down?  Because the county economy is dependent on the new power plant and the new power plant will in large part be dependent on Google.

Do data centers produce a huge number of jobs that might justify paying a company like Google to move to Becker, Minnesota?  Not once they’re built--“the Minnesota Department of Employment and Economic Development said the…data center would involve 2,000 construction jobs and employ about 50 full-time workers.

That’s right–50 jobs.  So we build you a power plant and you give us…50 jobs.

This is about the same result as Senator Ron Wyden enjoyed from the data centers built in The Dalles along Oregon’s Columbia River watershed.  (That would be the same Ron Wyden who is the former chair of the United States Senate Finance Subcommittee on Energy, Natural Resources, and Infrastructure….  No connection, I’m sure.)

But it seems that a handful of jobs is worth poking his finger in the eyes of the Oregon music community in Portland and beyond by consistently opposing fair copyright reforms and protecting Google’s cherished Section 230 safe harbor–which he’s proud to tell you he wrote.  It’s also worth opposing the Stop Enabling Sex Trafficking Act and generally being as close to Google as one is to two.

You might also find that Nebraska’s wind farms explain Senator Ben Sasse’s sudden interest in screwing pre-72 artists in line with Google’s desire to block the CLASSICS Act, particularly when you find out that Nebraska is in an internecine struggle with neighbor Iowa to get another of Google’s data centers.

So the question is–now that Google is building a data center in Minnesota, will we discover that Senator Klobuchar and her colleague Tina Smith are suddenly finding that protecting Minnesota artists like Jimmy Jam, Terry Lewis,  Sounds of Blackness, Prince and that Zimmerman kid from the ravages of multinational corporations is just not their thing after all?

 

 

Thank You Senator @MarkWarner, but Senator @RonWyden is the Perfect Leader in the Fight Against Behavioral Addiction

August 13, 2018 Comments off

Senator Mark Warner has released (or leaked) a comprehensive plan to combat fake news and foreign manipulation of the American electorate through Silicon Valley.  Unfortunately, however appealing or appalling some of Senator Warner’s proposals are, it’s likely that he may just be expanding the game of whack-a-mole that Silicon Valley loves so much.  We’ve seen the whack-a-mole movie before and we know how it ends.  They won’t help, you spend money to fight them, and if you ever look like you might be winning, they outspend you on lobbying to create a new safe harbor.

Senator Wyden Can Help Solve the Fundamental Problem With Social Media

There is a more fundamental problem with Silicon Valley that the Congress is actually well-suited to address, probably needs no new laws, and if fixed would go a long way to addressing some of Senator Warner’s issues—the problem of addiction and how Silicon Valley profits from creating that behavioral addiction to smartphones, likes, views, retweets and other fakery that turns the science of addiction on its head.

And the really good news is that there is one currently serving U.S. Senator who is the perfect person to take on this issue, one Senator who has shown his chutzpah in the past, and one Senator who above all others is well suited to deal with the problem of behavior addiction for corporate profit—Senator Ron Wyden from Oregon.

It was Senator Wyden who created that classic exchange in 1994 between the heads of the Big Tobacco companies which you’ve probably seen where Senator Wyden got each of them to say that nicotine was not addictive, only to discover that these companies used biological and behavioral research to make their product as addictive as possible (see The Insider, a film about Big Tobacco whistleblower Jeffrey Wigand portrayed by Russell Crowe).  

The tobacco class actions resulted in a $3.4 billion payment over 25 years–in 1997 dollars.  We know how much Big Tech hates real class actions they don’t control, but face it–a comparable settlement today would be chump change for the most valuable companies in commercial history.

This is why Ron Wyden is the perfect Senator to reprise his role of champion of public health by holding Silicon Valley’s feet to the fire.  And let’s face it—there’s lots of material to work with in the business of social media that is founded on fakery, well beyond Senator Warner’s recommendations.

YouTube’s Fakery on Display Again

It’s not surprising that fake YouTube views are again in the news in what is becoming a series of exposes on the fakery in social media.  The latest deep dive into the skullduggery behind fake views is by Michael H. Keller in the New York Times and is recommended reading by Artist Rights Watch.

Everyone in the record business who has been paying attention has seen a version of this story play out many, many times for many, many years.  Remember the radio promotion exec who always seems to get the same adds at that same stations for a few weeks?  And when the plays stop, the exec says “the record is not reacting”?  Fake YouTube views are essentially the same scam—with two exceptions. The scale is vastly bigger at YouTube and no DJ has the motto “don’t be evil.”

Mr. Keller’s post ends with this provocative conclusion:

View-selling sites continue to advertise with apparent impunity. A post on the YouTube Creator Blog warning users against fake views has numerous comments linking to view-selling sites.

“The only way YouTube could eliminate this is if they removed the view counter altogether,” said Mr. Vassilev, the fake-view seller. “But that would defeat the purpose of YouTube.”

That’s an interesting proposition.  Why would removing the view counter defeat the purpose of YouTube?  Aren’t we told that artists can’t reach an audience without YouTube?  So isn’t the purpose of YouTube to reach an audience rather than produce public views information?  Granted, the person making that assertion is a fake view seller and not a YouTube representative, but a YouTube representative would likely never say such a thing even if they knew it to be true.  Why not?

Behavioral Addiction Additives 

One reason might be that the view counter, friend counters, the likes, the retweets, the various measurements that demonstrate the re-enforcement of acceptance by “friends”, are an important component of what makes YouTube addictive, just like tobacco companies added ammonia and other chemicals to tobacco to increase its addictive powers.  And the evidence is starting to come in suggesting that it is that addiction that is the real purpose of YouTube and other social media sites.

One source of that evidence is from Professor Adam Alter of the NYU Stern School of Business whose book Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked describes in shocking detail just how devious sites like YouTube and Facebook are in delivering the dopamine fix to our brains, and worse yet to our children’s brains.  As Professor Alter told the New York Times:

Today, we’re checking our social media constantly, which disrupts work and everyday life. We’ve become obsessed with how many “likes” our Instagram photos are getting instead of where we are walking and whom we are talking to….

We are engineered in such a way that as long as an experience hits the right buttons, our brains will release the neurotransmitter dopamine. We’ll get a flood of dopamine that makes us feel wonderful in the short term, though in the long term you build a tolerance and want more.

And of course those buttons include YouTube subscriber and view counts, Facebook friends and likes and the various other feedback mechanisms that enforce a measurement of popularity.  So far, social media is good business as Spotify billionaire Sean Parker tells us:

“It’s a social-validation feedback loop … exactly the kind of thing that a hacker like myself would come up with, because you’re exploiting a vulnerability in human psychology.” 

“God only knows what it’s doing to our children’s brains,” Parker said.

Of course, as one Silicon Valley entrepreneur who also survived the Dot Bomb Implosion once told me, there’s something really wrong about a world in which Sean Parker is a billionaire.

Do Fake Views Produce Fake News?

Here’s a couple thoughts about the fake view issue.  First, why doesn’t Google refund the sums spent on fake views?  Maybe not to the repeat user PR firms but at least to the individuals who were lured in by the promise of fake views who didn’t know any better?  Or would they prefer to put together one of their pre-packaged fake class actions that funnels money to their favorite shills in cy pres awards?

But going forward, what is so unusual about getting rid of view counters, friend counters, like counters, follower counters, and so on?  Twitter did something similar when they stopped the counter on Twitter linking buttons.  If YouTube is really such a great tool for consumer engagement, do we think fans are going to stop watching videos of the artists they love just because they don’t have a counter telling them what’s popular when there’s a better than 50/50 chance the counter is a fraud to begin with?

Let’s face it—one reason YouTube music videos are popular is because artists and labels drive traffic to YouTube.  That helps the view count as much as anything else.

Also, it’s not like there’s no ranking going on.  Google can rank YouTube videos in search with no problem.  Of course, they’re so good at ranking in the background that they are being fined for it by the European Commission. 

Senator Wyden, Where Art Thou?

While I appreciate Senator Warner’s effort, the real rock star in taking on Silicon Valley could be Senator Ron Wyden.  The addiction issue would be a perfect opportunity for his consumer protection legacy with tobacco addiction to enter the digital age.

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.

 

@TerrenceHart: Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause? — Artist Rights Watch

May 31, 2018 Comments off

“I do believe that the intellectual property that you create is just that.  It’s property and you ought to be protected in the property that you create and that we all enjoy.”

Senator John Cornyn, U.S. Senate Committee on the Judiciary, May 15, 2018.

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

via @TerrenceHart: Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause? — Artist Rights Watch

MusicTechPolicy Monthly Newsletter is out! Subscribe here!

November 11, 2017 Comments off

The latest email only MusicTechPolicy Monthly newsletter is out!  Sign up by subscribing to this blog.  This month we focus on Spotify board member Sean Parker’s revelations about how the social platforms like Facebook, YouTube, Twitter, Instagram are all consciously based on addiction modalities.  Parker’s revelations are confirmed by Dr. Adam Alter’s shocking book “Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked

Wyden Tobacco

Chris argues that this is national crisis worthy of a Congressional hearing like the tobacco industry’s cultivated addictive powers conducted by consumer hero Senator Ron Wyden. Senator Wyden conducted one of the most famous hearings in history when he asked the CEOs of the tobacco companies to state whether nicotine was addictive.

We also take a look at the tragic humor of Sen. Al Franken’s examination of Facebook, Twitter and Google regarding their inexplicable participation in the 2016 U.S. Presidential election.

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