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A Look at Christopher Sprigman’s Recent Record

July 16, 2019 Comments off
Sprigman 1

Sprigman Throws a Definition at Blake Morgan

The Spitting Image of the Modern Major General

MTP readers may remember the name Christopher Sprigman.  Most recently,  we have identified him as a counsel to Spotify in the “Nashville cases” brought against his firm’s client Spotify by four plaintiffs represented by well-known and successful artist rights attorney Richard Busch.   These were cases brought against Spotify in Nashville for claims of copyright infringement by independent publishers who opted out of both the NMPA settlement and the Lowery & Ferrick class actions.  (Just to be clear, Lowery had nothing to do with the Nashville cases.)

Sprigman PHV

Professor Sprigman also teaches at the New York University law school in New York and evidently has an of counsel relationship with the distinguished New York law firm Simpson Thatcher.  According to his law firm biography:

“Chris is a tenured faculty member and Co-Director of the Engelberg Center on Innovation Law and Policy at New York University School of Law, where he teaches intellectual property law, antitrust law, competition policy and comparative constitutional law.”

Simpson Thatcher is one of those ultra white-shoe corporate law firms, a very conservative reputation and also highly respected around the world.

Sprigman Lowery

Pot, meet kettle

Professor Sprigman has a history in copyright circles dating back to at least 2002, i.e., before he worked on Simpson Thatcher client Spotify.  His selection to represent Spotify may be explained as simply as Professor Lessig was not available, but it’s more likely that his past work informed his selection as is usually the case.  Nothing wrong with that.

Some of Sprigman’s academic writings can be found on his SSRN author profile.  At least a few of these papers (that we know of)  were co-funded by Google.  That Google connection evidently is a topic of some sensitivity with Professor Sprigman as it was that point that seems to have prompted his unprovoked and public comparison of David Lowery to Alex Jones.

Blake Alex

Aside from the depressing reliability of the Alex Jones Corollary to Godwin’s Law, this was both a shocking yet curious comparison.   Why Alex Jones, of all people?  What about Alex Jones is of relevance to David’s role in the artist rights struggle?  I am of the view that it carried with it an implied threat–Sprigman could get his buddies in Big Tech to deplatform David just like Alex Jones.  Why?   My guess is that it is because Sprigman apparently wants you to believe that David’s message was just as toxic to Twitter.   (David was not even involved in the initial Sprigman exchange at all and tells me he had no idea it was even going on.  He was on the road with Cracker and Camper Van Beethoven, you know, selling T-shirts like a good boy.)

Sprigman Lowery 2

The non denial denial

It All Starts with the Disney Fetish

Professor Sprigman has a long-term connection to Professor Lessig, beginning with a 2002 article “The Mouse the Ate the Public Domain” supporting Lessig’s losing argument in Eldred v. Ashcroft attacking the 1998 Copyright Term Extension Act.  (“Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft.”  How very 1999.)

It will not be surprising to learn from the NYU alumni blog introducing Professor Sprigman that Lessig is his “mentor” (“Sprigman set a goal of writing an article within four months that he could take on the job market, if his mentor and the [Stanford Center for the Internet and Society]’s founder Lawrence Lessig deemed it satisfactory. The result was a paper that reintroduced the idea of formalities in copyright law. Its boldness won Lessig’s approval.”)  Ah, yes.  Fortune favors the “bold.”

A younger and perhaps bolder Sprigman held a 2003 fellowship at Stanford’s Center for the Internet and Society (founded by the very bold Lawrence Lessig III and later funded by the even bolder Google in 2006 with a $2 million gift).  This academic fellowship evidently produced his 2004 article “(Re)Formalizing Copyright” boldly published by Stanford and, in a nutshell, advocating a requirement of copyright registration.  (My view of this fascination that many of the Lessig crowd have with registrations is to create a giant loophole that would allow Big Tech to use “unregistered” copyrights (especially photographs) as they saw fit.  Boldly, of course.)

As a quick aside, MTP readers will recall that the “address unknown” NOI debacle makes clear that even if works are registered and readily available through searchable databases that currently exist, Google, Amazon, Spotify and some others cannot be trusted to look for the sainted registrations.  These companies appear not to have looked or not to have looked very hard before attesting that they had searched the Copyright Office records in their 70 million or so address unknown filings.  Even allocating 5 minutes per copyright for search time, it would have taken over 350,000,000 minutes (or 5,833,333 man-hours, 243,055 man-days or 665 man-years.  Roughly speaking.  Feel me?  Curiously, Apple never used the address unknown loophole.  It is unlikely that a registration-based system (which the US abandoned decades ago) would produce the promised results but would produce a substantial burden on all copyright owners, especially independents–not to mention the productivity loss to the Copyright Office itself.

This registration loophole is also a core Lessig concept that he pushed during the orphan works bills of the 2006-2008 period (see “Little Orphan Artworks”.  It is echoed in the Music Modernization Act with the requirements to register with the Mechanical Licensing Collective under Title I (at least if you want to be paid outside of the black box) and the registration requirements under Title II for pre-72 copyright owners imposed by Big Tech’s favorite senator, Ron Wyden.  Note neither requirement requires a formal copyright registration so doesn’t go as far as Lessig, Samuelson and Sprigman, but it’s headed that direction.

David Poe Woodward

Sprigman later was co-author with Lessig of the Creative Commons filing to “save” “Jewish cultural music” in 2005 orphan works consultation by Copyright Office.

creative-commons-2008-schedule-b ANNO

In 2006, Professor Sprigman was lead counsel with Lessig on the losing side in Kahle v. Ashcroft (later v. Gonzales) which unsuccessfully challenged the elimination of the renewal requirement under the 1992 Copyright Renewal Act.  He went on to write “The 99 Cent Question” in 2006 attacking iTunes pricing.

Association with Pamela Samuelson

Pamela Samuelson is another registration fan in the professoriate, so it was not unexpected that Samuelson and Sprigman would find each other.  Among his other accomplishments, Professor Sprigman was a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated registration (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).  (MTP readers will remember Samuelson and her husband the tech maven Robert Glushko from the Samuelson-Glushko IP units at various law schools in the US and Canada that consistently oppose artist rights.  A critic might say that the Samuelson-Glushko academic institutes are like Silicon Valley’s version of Confucius Institutes.)

The Copyright Principles Project is especially relevant to Professor Sprigman’s outburst regarding David Lowery because of what I would characterize as the utter failure of Pamela Samuelson to make an impact when she testified before the House Judiciary Committee’s IP subcommittee in 2013.  This missed opportunity was, I think, largely due to Lowery’s takedown of the “Project” that appeared in Politico hours before she testified which Chairman Goodlatte asked to be entered into the record of the hearing where it sits to this day.

Lowery Politico

It’s worth noting that there were no creator members of the Copyright Principles Project, and Samuelson was questioned sharply about this by the IP subcommittee–it sounded like staff had been fed the “Case Study for Consensus Building” without being told that an important group had been omitted from the “consensus”.  Her response was that she didn’t need any creator members on the Copyright Principles Project because she was herself an academic writer.  I think it’s fair to say that while I didn’t see any of the Members laugh out loud, her response was viewed as rather weak sauce in light of Lowery’s post in Politico.   That exchange appears to have led to Samuelson founding the “Authors Alliance” after the hearing evidently to shore up that shortcoming.  Too late for the Copyright Principles Project, however.

All Hail the Pirate King

Like his mentor Lessig, Professor Sprigman also seems to have an interest in defending the alleged benefits of piracy and apparently is a leader of the “IP without IP” movement (and co-author of the piracy apologia, The Knockoff Economy: How Imitation Sparks Innovation.)   (See also what we call the “pro-piracy” article “Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy“.  “[M]ost of that harm [of counterfeits and piracy], at present and for the foreseeable future, falls on foreign manufacturers”–this means you, songwriters.)  He frequently writes on pro-piracy topics with Professor Kal Raustiala of the UCLA School of Law of all places.

It should come as no surprise then, that he represented Spotify in the Nashville cases.  He was co-counsel on Spotify’s papers (with Jeffrey Ostrow from Simpson Thatcher) famously making the losing argument that, in short, lead to the conclusion that there is no mechanical royalty for streaming (after the usual Lessig-esque Rube Goldberg-like logic back flips).  In Sprigman’s America, his Big Tech clients would not pay streaming mechanicals to songwriters at all, an issue that was emphatically put to rest in the Music Modernization Act.  (In a curious case of simultaneous creation, Techdirt came to almost the identically flimsy argument.)

David Poe Delete S

What Did We Ever Do to Him?

But before last week, Professor Sprigman most recently came onto the radar in his chairing of the American Law Institute’s Restatement of Copyright which many (including me) view as a political end-run around the legislative process.  Register of Copyright Karyn Temple said the Restatement of Copyright “appears to create a pseudo-version of the Copyright Act” and would establish a contrarian view of copyright under the mantle of the august American Law Institute.  It’s unclear to me who, if anyone, is financing the Restatement.  (MTP readers will recall The American Law Institute’s Restatement Scandal: The Futility of False “Unity”.)

Aside from the fact that the normal world is not waiting for the Restatement of Copyright, it is hard to understand how a person with such overtly toxic attitudes toward uppity artists like Blake Morgan, David Lowery and David Poe should–or would even want to–participate in drafting the Restatement.

Unless they had a reason.  Like providing a citable text holding that piracy is groovy, for example.  Originalists come not here.

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

Yet as of this writing, the American Law Institute still lists Professor Sprigman as the “reporter” of its Copyright Restatement project.

ALI Copyright

As one artist asked me of Sprigman, what drives him to be so consistently on the wrong side?  What did we ever do to him?

badbunny

(h/t to Fox of TO)

 

 

Corporate Astroturf and Manipulation of Media Messages by @SharylAttkisson at TEDxUniversityofNevada

February 7, 2015 Comments off

eric-and-friends

Uncle Sugar Shows Us a Regular Guy on a Lobbying Trip

As we enter the a new session of Congress, we can anticipate being assaulted by the combined forces of Google, Facebook, Pandora and SiriusXM, the Electronic Frontier Foundation, Public Knowledge, the Digital Media Association, the Computer & Communications Industry Association and its host of “studies”, the Cato Institute, the Heritage Foundation, the Stanford Institute for Internet and Society, the Berkman Center, the Consumer Electronics Association, the Internet Association and of course, the National Association of Broadcasters.

What’s different about the current state of play for artists, songwriters, producers is that our side really doesn’t have anything like the complex and systematized network of 501(c)(3)s, cy pres awards, special interest groups and academics that are on Google’s payroll and increasingly on the payroll of Facebook and the new Internet Association (which itself spends approximately $400,000 a quarter on lobbying alone).

I highly recommend you read this article by Tom Hamburger and Matea Gold from the Washington Post, “Google, once disdainful of lobbying, now a master of Washington influence.”  You’ll begin to get the idea that Google spends so much money on “astroturf and manipulation of media messages” that it had to start finding ways to create other ways to spend the money.  Hamburger and Gold lead their reporting with this example:

In May 2012, the law school at George Mason University hosted a forum billed as a “vibrant discussion” about Internet search competition. Many of the major players in the field were there — regulators from the Federal Trade Commission, federal and state prosecutors, top congressional staffers.

What the guests had not been told was that the day-long academic conference was in large part the work of Google, which maneuvered behind the scenes with GMU’s Law & Economics Center to put on the event. At the time, the company was under FTC investigation over concerns about the dominance of its famed search engine, a case that threatened Google’s core business.

Indeed, this manipulation has gotten so bad, the judge in Oracle v. Google required the parties to make court filings listing all the public commenters on the case which has come to be called the “Google Shill List” which you can read here.  The Trichordist has an excellent “connect the dots” post showing Google’s history of financing those filing “friends of the court” briefs in Google’s efforts to stop Mississippi Attorney General Jim Hood’s investigation into Google’s violation of various laws.  All this in the aid of what the EFF might call “obfuscation”–Google and its “amici” would have you believe that Hood’s case is just about the acts of people using Google or its products, for which Google has a variety of statutory protections.  Nothing to see here, move along.

But as Hood points out, the four-year sting operation run against Google by a combination of federal agencies before a federal grand jury in Rhode Island showed that Google and its senior management team right up to Google’s CEO Larry Page was complicit in violating the Controlled Substances Act to the point of helping the bad guys get around Google’s own filters.  Google paid a $500,000,000 forfeiture for those drug violations for advertising the sale of prescription drugs–not for what the advertisers did, but for what Google did.

Sorting through more than four million documents, prosecutors found internal emails and documents that, they say, show Mr. Page was aware of the allegedly illicit ad sales. Under this week’s $500 million settlement, those emails won’t be released, avoiding the possibility of disclosure at trial.

“Larry Page knew what was going on,” Peter Neronha, the Rhode Island U.S. Attorney who led the probe, said in an interview. “We know it from the investigation. We simply know it from the documents we reviewed, witnesses that we interviewed, that Larry Page knew what was going on.”

Subsequently, Google’s lawyer said in open court that the Department of Justice apologized to Google for the statement by Mr. Neronha (Transcript of hearing at pp 11-12):

“The U.S. attorney in Rhode Island went off the reservation and gave a long interview about all the evidence and why it was he was so excited about the case,” lawyer Boris Feldman told the judge at a Delaware state court. “It ended up being so far off the reservation that the Justice Department apologized to Google for it and muzzled him.” (emphasis mine)

So when Hood served his subpoena, you could easily imagine Larry Page telling Google’s lawyers to MAKE IT STOP!  I’M RICH, I’M ENTITLED, HE CAN’T DO THIS TO ME!

MUZZLE HIM!

Because, the U.S. Attorney for Rhode Island told the Wall Street Journal that Page was implicated.  Google is now settling shareholder class action cases against Larry Page and the Google senior management team and board members alleging that Page is implicated.  There is a potential for a host of criminal violations at the State and federal level from consumer fraud, to RICO, to Sarbanes Oxley.  And the best Google can come up with for friends of the Court are the usual suspects and trade groups?  When the federal Justice Department is issuing apologies to multinational corporations, it’s left to state law enforcement officials to seek justice.

Just like the copyright battle in the Congress yet to come this year, Attorney General Hood’s investigation is a significant upping of the ante in these cases.  Hood’s case is one of the few times that an American multinational corporation tried to muzzle a criminal investigation into its own practices before it ever started.

And that’s worth bringing to bear a whole lot of astroturf just the copyright law–that in Google’s case presents a host of loopholes on which it’s built its business.

As the Trichordist points out, the venerable public interest watchdog “Public Citizen has released a study called Mission Creepy a great guide to Google’s labyrinthine influence buying.”  Even if you skim that report, I think you’ll agree we haven’t seen as comprehensive a takeover of the federal government, tax exempt organizations and the academy since the days of John D. Rockefeller, maybe not ever.  No wonder the Department of Justice is apologizing to Google.

But it’s not just controlling government officials that’s the problem.  It’s the combined work product of all this influence buying that is truly insidious.

How does this work?  This video by award wining investigative journalist Sharyl Attkisson is an excellent discussion by the former CBS news reporter about the new media world we live in.  Ms. Attkisson uses the example of pharmaceutical companies doing a variety of things like manipulating search results and controlling Wikipedia.  Ahem….

Here is a link to the Columbia Journalism Review article that Ms. Attkisson references:  Bitter Pill: How the press helps push deadly prescription drugs, sometimes with deadly consequences.

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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