by Ellen Seidler | Ad Sponsored Piracy, Copyright, Google, Law, Politics, Tech
So-called “public-interest” groups really just “Google-interest” groups
Mississippi Attorney General Jim Hood’s efforts to hold Google accountable for its suspect business practices has come under fire recently by so-called web “watchdog” groups who’ve come to the defense of the internet behemoth. The Electronic Frontier Foundation, Center for Democracy & Technology and Public Knowledge and others filed an amicus brief in support of Google’s efforts to ignore a subpoena from Hood requesting information related to its operations linked to illegal drugs, pornography and online piracy. Hood claims the company is in violation of the state’s consumer laws.
EFF, Center for Democracy & Technology and Public Knowledge fail to mention they receive money from Google
The pro-Google brief begins by providing summaries of its various signatories. It’s no surprise that each and every description fails to mention organizational ties to Google. Leading off the parade of disingenuous descriptors is the EFF:
The Electronic Frontier Foundation (“EFF”) is a non
-profit, member-supported civil liberties organization that works to protect free speech, innovation, and privacy in the online world.
Funny that on its own website the EFF describes itself as a
“”a donor-funded US 501(c)(3) nonprofit organization.” For the purposes of the brief, of course, characterizing itself as simply
“member-supported” provides a more innocent, public-interest veneer. In either case, if one attempts to discover exactly where the EFF gets its money, by reviewing the organization’s latest–though somewhat outdated–
financial data (from 2012-2013) it seems the
actual identities of donors are (conveniently) obscured.
via: https://www.eff.org/about/annual-reports-and-financials
In a 2012
article for Fortune Magazine, Matt Vella noted that money from Google (and other tech firms) does flow directly into EFF’s coffers.
If the Electronic Frontier Foundation, the nation’s preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million gift from Google — about 17% of its total revenue — some eyebrows might have been raised. The group typically describes itself as “member-supported” and, like most nonprofits, it treasures its above-the-commercial-fray, public-interest-group aura and reputation for independence.
Vella also pointed out, “The EFF, CDT, and Stanford’s CIS all reliably line up on the tech sector side in scrimmages with copyright holders.” Why bite the hand that feeds you?
Google actually makes no bones about the support it provides for both the EFF and
The Center for Democracy and Technology in a listing on its own
website:Our U.S. Public Policy and Government Affairs team provides support to a number of independent third-party organizations whose work intersects in some way with technology and Internet policy.
There’s also a little footnote in the amicus brief worth noting:
No one, except for undersigned counsel, has authored this brief in whole or in part or contributed money toward the preparation of this brief.
Yeah, right….One has to appreciate the legal jiu jitsu employed in this misleading caveat. Perhaps Google didn’t directly underwrite the brief, but it’s clear who pays (some of) the bills. As such, it’s no surprise that legal arguments cited in the brief include the well-worn don’t blame Google for the behavior of others gambit:
Simply put,requiring online service providers [like Google] either to respond to subpoenas directed primarily at third-party conduct—or to engage in protracted and expensive litigation to challenge their propriety—could result in extraordinary costs for those providers.
Last time I checked, it was Google that admitted culpability when it coughed up $500 million to pay a fine for knowingly earning profits from advertising for illegal drugs online.
The federal investigation,
which was first revealed in May, found that Google was aware that some Canadian pharmacies that advertised on its site failed to require a prescription for substances like the painkiller Oxycontin and the stimulant Ritalin. Google continued to accept their money and assisted the pharmacies in placing ads and improving their Web sites, according to the Justice Department. –
NY Times
This type of Google behavior is exactly what Attorney General Hood is investigating. It’s difficult to feel any sympathy for the fact Google may face
extraordinary costs to protect its equally extraordinary (and nefarious) profits. It’s no surprise that
those victimized by Google’s profit-machine support Hood’s efforts to pull back the curtain on its shady business practices. Why wouldn’t they?
Though it makes nice talking points, the crux of the amicus brief argument seems to be that Google shouldn’t bear any responsibility for bad (illegal) behavior within its online operations, even when it knowingly encourages and benefits from such behavior. Not only are the messengers suspect, but their mendacious argument is irretrievably tainted, bought and paid for by Google itself–no matter that a footnote disclaimer may claim.
Moving now back to the Google v. Hood amicus briefs, Google came up with two that we are aware of–one was filed in support of Google by the Consumer Electronics Association, the Computer & Communications Industry Association and Engine Advocacy (where Julie P. Samuels–remember her from the Google Shill List–is Executive Director). Each organization is funded by Google. The CEA and CCIA alone lobby for companies whose combined market cap surely has to be somewhere around $2 TRILLION….
In other words, the two amicus briefs filed in support of Google’s attempt to stop a criminal investigation were filed solely by organizations that receives funding from Google both directly and indirectly and in some cases has received that funding for many years. Even in the world of Google influence buying where organizations seem to be created by binary fission straight out of the Benjamins, this is an odd result.
The Trichordist post also references a recently released
Public Citizen study,
Mission Creepy noting that it provides
“a great guide to Google’s labyrinthine influence buying.” I’ll leave you with these chilling words from that study:
…the amount of information and influence that Google has amassed is now threatening to gain such a stranglehold on experts, regulators and lawmakers that it could leave the public powerless to act if it should decide that the company has become too pervasive, too omniscient and too powerful.
by Ellen Seidler | Copyright, Google, Law, Piracy, Politics, Tech
Censorship is a dirty word, laden with negative connotations and so it’s not surprising to see the EFF (Electronic Frontier Foundation) dust if off (again) for use in its ongoing PR efforts to undermine rights of creators who use legal means to protect their works from online theft. The “censoring speech online” hyperbole was an effective battle cry during the SOPA debate, so why not use the same rhetoric to gin up opposition to artists’ rights and copyright law?
This time EFF’s sites are set on the DMCA (Digital Millennium Copyright Act, the law (passed in 1998) that set up a system whereby copyright holders could facilitate the removal of their pirated content from websites that publish it without authorization. Yesterday Maira Sutton launched a salvo on the EFF blog ominously titled, Copyright Law as a Tool for State Censorship of the Internet. Sutton warns:
The DMCA has become a global tool for censorship, precisely because it was designed to facilitate the removal of online media…
Per usual, her post is written as though online piracy is a benign, practically non-existent problem. In fact, not once does she address the ways in which copyright infringement damages damages filmmakers, authors, musicians, photographers and other creators. Don’t people working in these fields deserve protection too? Apparently not, at least as far as the EFF is concerned.
In EFF’s world, copyright itself is a a form of censorship
Conveniently ignoring the scourge of online piracy, Sutton expresses alarm that various nations around the world are using the DMCA as a template managing copyright infringement on the web. She calls it “state-mandated internet censorship” and warns of “harsher” copyright enforcement. Harsher relative to what? At the moment, many countries do very little to enforce copyright law online so use of the term seems a tad hyperbolic. Perhaps a worldwide standardization of copyright infringement protection law might be good practice for an online eco-system that has essentially become border-free.
Sutton lists 9 instances in which content was removed for allegedly political reasons via a DMCA notice. Not to minimize any wrongdoing in these particular instances, but has Ms. Sutton bothered to examine the millions of legitimate removals that occur each week worldwide? In any enforcement system there exist errors and potential for abuse, but the the truth is that the volume of legit DMCA notices far outweighs illegitimate ones.
No system is perfect. I’ve long been critical of the DMCA, though not for the reasons Ms. Sutton cites. In my experience, the intent of the “safe harbor” provision of the law is routinely sidestepped as tech companies (like EFF funder Google) continue to reap billions from unauthorized online content theft.
From a creator’s perspective the DMCA is clumsy and ultimately weighted against rights holders. Go ahead and upload a movie to YouTube. Yeah, there’s fine print under “suggestions” that politely asks, “Please be sure not to violate others’ copyright or privacy rights,” but users don’t actually have to submit any proof of ownership. It’s the job of rights holders to search for, and submit a DMCA notice to request the removal of their content day after day after day.
If an uploader responds with a counter-notice, it’s the rights holder who has to go to court to enforce a takedown. Most indie creators don’t have the money to initiate a lawsuit so in many cases it’s the uploader that–in this game–gets the last word as the content ends up back online. The default mode for YouTube and the rest of the web is “go for it.” In the end, the DMCA is all we have to fight back.
EFF’s own Chilling Effects provides an efficient search engine to find pirated links online
Ms. Sutton also asks for more transparency in the process. Fine by me as long as it doesn’t include operating a “database” that serves as a de facto search engine for pirated content like the EFF’s own Chilling Effects. Using their database of DMCA takedown notices (sent to Google and a few others) it’s easy to find direct links to pirated content around the globe. This sort of transparency is really just playing a shell game with pirate links. Remove pirate links from Google and they receive new life, and traffic, via Chilling Effects.
Of course Ms. Sutton doesn’t mention this fact, nor does she address how Chilling Effects’ republishing of reported links in their entirety is essentially an F-You to all the creators–like me–who are working within the confines of established law to protect our creative work from profiteers. The Chilling Effects database could easily provide transparency while redacting a portion of the pirate links, but its apologists choose not to. That’s not transparency, that’s facilitating theft. Apparently that’s A-OK in their book.
Speaking of “transparency,” it’s worth pointing out that Ms. Sutton also conveniently fails to acknowledge her organization’s own ties to the tech industry, entities that would have a vested interest in seeing the DMCA gutted. Her omission undermines any credibility she may have in terms of her overall arguments. Until she, and those she represents are willing to be transparent about their funding sources, and how this money influences their mission, how can we take her complaints seriously?
Censorship is a word that goes both ways. Clearly, when it comes to political speech it’s not a good thing, but neither is a system, seemingly supported by the EFF, where online piracy is allowed to run rampant. When the livelihoods of creative artists are undermined, their rights are, in fact, being suppressed.
The world exists in shades of gray, but in the EFF’s, it’s black and white–a world where censorship and copyright are considered synonyms.
by Ellen Seidler | Ad Sponsored Piracy, Copyright, Google, Law, Piracy, Politics, Tech
It’s a tired old tale, but one that bears repeating over and over again. Google’s search engine is the go-to resource for those seeking pirated content online. There’s a long line of Google critics, myself included, who decry the search giant’s defiant and arrogant attitude in response to requests that it modify its search engine to mitigate damage done to content creators by online pirates.
James Murdoch, co-COO of 21st Century Fox has added his voice to calls for change, speaking out at a TV conference in Cannes. According to a report in The Guardian, Murdoch took issue with Google’s response to News Corp CEO Robert Thomson’s recent characterization of Google search as “a platform for piracy” in a letter sent to an EU commissioner.
“There’s no question that they can do more. A lot more. Certainly Google’s not right in saying they’re doing more than anyone. That just isn’t true,” he said.
“The problem with Google … Actually, let’s not personalize this. The problem with search-driven discovery, if the content is there and it’s illegal and you’re just selling clicks as a big ad network, you have every incentive for that illegal programming to be there. That’s fundamentally not really good enough.”
No, it isn’t good enough. As I wrote last week, Google’s claim that it’s a leader in the fight against piracy is gobbledygook. Of course Google, being Google, can say pretty much anything its wants since content creators are powerless in the face of its corporate largess and lobbying. A recent story in the Washington Post, “Google, once disdainful of lobbying, now a master of Washington influence” shined a spotlight on the search giant’s growing domination (and control).
The behind-the-scenes machinations demonstrate how Google — once a lobbying weakling — has come to master a new method of operating in modern-day Washington, where spending on traditional lobbying is rivaled by other, less visible forms of influence.
(Read the e-mails between Google and GMU officials)
That system includes financing sympathetic research at universities and think tanks, investing in nonprofit advocacy groups across the political spectrum and funding pro-business coalitions cast as public-interest projects.
The rise of Google as a top-tier Washington player fully captures the arc of change in the influence business.
When even big corporate entities like News Corp and 21st Century Fox appear powerless in the face of Googleiath’s growing dominance, you know we’re in trouble. Perhaps the European Union will punish Google for anti-trust violations, but even threats of a 6 billion dollar fine are unlikely to change Google’s scorched earth business practices and tainted profits. As its influence expands and evolves, so too does the moral code by which it operates. Problem is, it’s a code of Google’s own making.
by Ellen Seidler | Copyright, Law, Photography, Politics, Tech
Reddit and Vanity Fair are both owned by Condé Nast
The Internet’s dark side, how much is enough?
The recent theft and online release of a number of female celebrities’ private photographs is only the most recent link in a chain of online abuse that stretches across the globe. In this instance, the only reason it grabbed headlines and gained its own juvenile hashtag (#Fappening2014) was because the victim list was a who’s who of high-profile Hollywood actresses. Some characterized the release of the stolen photos as being an isolated incident, a product of the dark recesses of the Internet, of a lone sick-o hacker. If only that were true. The sad fact is that women (and men) are subjected to online attacks like this everyday.
This type of digital damage, a form of virtual sexual assault, a type of revenge porn, needs to be seen for what it is–a crime. Unfortunately it’s one that, more often than not, goes unpunished. Most women (and men) who are victimized by these networks of anonymous cowards don’t have the resources to fight back. Even when they do–as in the case of Jennifer Lawrence, this episode’s most prominent victim–mechanisms to combat this type of digital abuse are limited. The FBI claims to be investigating, but what are its agents doing about the not-so-famous women whose photos end up shared and used as click-bait on seamy forums (and sub-forums) hosted by sites like Reddit? Do victims of these crimes have any options to fight back?
In the short term Lawrence and the hacker’s other victims are employing the only tool available to them, the tired old DMCA notice. The DMCA allows copyright holders to demand that content removed from a hosting website by claiming copyright infringement. Of course, only sites beholden to U.S. law are obligated to remove “infringing” content and most of the sites that traffic in stolen content are hosted offshore, beyond the reach of U.S. law.
In the past Reddit, owned by publishing giant Condé Nast, often deflected DMCA notices, instead advising senders to contact the actual host of the link to request takedowns. Yet in the wake of this latest onslaught, site administrators have changed their tune. Why now? Why are stolen nude selfies of famous actresses more worthy than similar images stolen (and posted) from private citizens? I also wonder how receptive these actresses will be next time Vanity Fair comes a calling for them to do their annual Hollywood issue? Could that have influenced Reddit’s decision-making?
Reddit administrators of course made no mention of Condé Nast’s corporate interests in explaining their decision to disable the /r/TheFappening (hacked image thread) and related subreddits:
These subreddits were of course the focal point for the sharing of these stolen photos. The images which were DMCAd were continually being reposted constantly on the subreddit. We would takedown images (thumbnails) in response to those DMCAs, but it quickly devolved into a game of whack-a-mole. We’d execute a takedown, someone would adjust, reupload, and then repeat. This same practice was occurring with the underage photos, requiring our constant intervention. The mods were doing their best to keep things under control and in line with the site rules, but problems were still constantly overflowing back to us. Additionally, many nefarious parties recognized the popularity of these images, and started spamming them in various ways and attempting to infect or scam users viewing them. It became obvious that we were either going to have to watch these subreddits constantly, or shut them down. We chose the latter. It’s obviously not going to solve the problem entirely, but it will at least mitigate the constant issues we were facing. This was an extreme circumstance, and we used the best judgement we could in response.
As of now, this explanatory post on Reddit has more than 9,o00 responses, pro and con. In another blog post on the issue that featured a lofty headline, “Every Man Is Responsible For His Own Soul” a Reddit administrator named Yishan explained their reasoning this way.
While current US law does not prohibit linking to stolen materials, we deplore the theft of these images and we do not condone their widespread distribution. Nevertheless, reddit’s platform is structurally based on the ability for people to distribute, promote, and highlight textual materials as well as links to images and other media. We understand the harm that misusing our site does to the victims of this theft, and we deeply sympathize. Having said that, we are unlikely to make changes to our existing site content policies in response to this specific event.
The reason is because we consider ourselves not just a company running a website where one can post links and discuss them, but the government of a new type of community. The role and responsibility of a government differs from that of a private corporation, in that it exercises restraint in the usage of its powers.
So, hands off until really, really famous people are involved? Only “change our content policies” when people can afford to hire legal representation with teeth? Reddit operators claim that above all else, they are in the business of protecting “free speech.” That is, apparently, until said “free speech” gets them in hot water and attracts unwanted scrutiny. Timothy B. Lee explored this contradiction in a post on Vox, “Why Reddit just banned a community devoted to sharing celebrity nudes”:
Reddit critics also accuse the site of being unduly influenced by media attention. For example, Reddit used to have a subreddit called /r/jailbait that — unsurprisingly — attracted pornographic images of underage women. It was popular enough to win a “subreddit of the year” vote in 2008. It was shut down only after it was the subject of unflattering coverage on CNN. Reddit also banned a subreddit called /r/creepshots, dedicated to “upskirt” photographs, after a Gawker expose on its founder. But other subreddits with equally disturbing content but less media attention remain open for business.
It’s important to note that Reddit’s “business” is ad-based. And, like so many enterprises on the web, attracting users by offering access to tainted goods. T.C. Sottek writing for The Verge pulls no punches, characterizes Reddit as a “failed state:”
…Reddit feels really bad that your stolen nude photos are being shared all over its website, but won’t do anything about it unless you’re privileged enough to understand the copyright system or able to afford a lawyer who does. And unlike (many) governments, Reddit has profit motives — it makes money when people share nude photos because men are pervs and there’s a huge audience out there for naked women, perhaps especially for naked women who haven’t given us consent to share their bodies.
…If Reddit wants to be thought of as a government, we’ll call it what it is: a failed state, unable to control what happens within its borders. At minimum, Reddit is a kleptocracy that speaks to lofty virtues while profiting from vice. It might be forgivable if we were talking about taxing cigarettes and booze, but we’re not talking about that. What we’re talking about is more like sexual assault, condoned by a state that earns revenue from it. “Reddit doesn’t have much of an interest in banning questionable content,” Wong wrote last year. “‘Family-friendly’ is out, ‘edgy’ is in.” Are those the words of a president, or a pimp?
Yishan‘s pompous post offers the notion that Reddit should be thought of as “the government of a new type of community…that it exercises restraint in the usage of its powers,” Of course those lofty, utopian guiding principles are quickly abandoned when bad publicity threatens to undermine the site’s net-worth. Funny how quickly the illusion of (ill-conceived) idealism can be shattered by cold, hard cash. The truth is that Reddit’s days as a freewheeling cesspool may be numbered if hopes to succeed with efforts to transform itself into a larger (legitimate) moneymaking enterprise. As Mike Issac explains in a piece for today’s New York Times:
…The site has lately redoubled its efforts to become a thriving, profitable business, stepping up its advertising efforts and going on a hiring spree.
“The Achilles’ heel for a lot of these sites is that their plans to monetize themselves often directly affect how they structure their platforms,” said Jeffrey Chester, the executive director of the Center for Digital Democracy, a privacy advocacy group.
Reddit is also reportedly in the process of raising more than $50 million in venture capital, according to the technology site Re/code, which could value the company at upward of half a billion dollars.
Reddit, then, may have to rethink its classic laissez-faire approach to content, especially if it wants to be courted by big-budget advertisers.
While market influences may be one factor in influencing a limited clean up of websites like Reddit, isn’t it time to ask whether our laws need to be updated to better manage this type of online crime? Free speech is often touted as the reason we must allow these sites to exist (and thrive) often at the expense of victims not as well known as Jennifer Lawrence. Yet theft and dissemination of stolen photographs is not speech, it’s abuse, and it’s time to acknowledge as much. Free speech absolutists, like Reddit’s operators, argue that any push back would stifle “innovation,” but what’s really innovative about sharing stolen selfies?
While it’s impossible to scrub the web of seedy threads like those on Reddit, can’t we at least try to make progress in limiting the damage? If sites like Reddit take pride in being user-driven, why not put more legal liability on those users? Also, why not put more pressure on parent companies like Condé Nast to stem this illegal and abusive behavior on its properties?
Supporting and sustaining a healthy Internet and ridding it of abusive and illegal content need not be mutually exclusive. At the very least lawmakers at the federal level should confront this issue as some of their state counterparts have done in enacting laws against “revenge porn.”
by Ellen Seidler | Copyright, Google, Law, Piracy, Politics, Tech
[vc_row][vc_column width=”1/1″][vc_column_text][/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Creative artists who speak out to defend their work from online poachers have long been the target of the Electronic Frontier Foundation (EFF), a Google-funded tech-centric organization that ostensibly “champions user privacy, free expression, and innovation.” Many creators first become familiar with the EFF when sending takedown notices to Google for copyright infringement on its various products (YouTube, Blogger, search, etc.) and receive warnings that the DMCA notice (listing the infringing link) will be sent to the EFF’s public Chilling Effects database. The purported goal of the database is to provide a clearinghouse to study “the prevalence of legal threats and allow Internet users to see the source of content removals.” Unfortunately, its real mission seems to be to further intimidate rights holders who try to protect their work from online infringement. The database has, in fact, become a handy source of links to pirated content. Given its history as a tech cheerleader, it’s no surprise that the EFF is at it again, this time drafting a letter to officials who are negotiating the “intermediary liability” language for Trans-Pacific Partnership (TPP) free trade agreement. According to the U.S. Trade Representative’s website:
TPP will provide new market access for Made-in-America goods and services, strong and enforceable labor standards and environmental commitments, groundbreaking new rules on state-owned enterprises, a robust and balanced intellectual property rights framework, and a thriving digital economy.
While there are legitimate concerns about transparency with the negotiating process, transparency is a double-edge sword. Perhaps the EFF should take a dose of its own medicine. The language contained in EFF’s letter once again establishes criterion where the rights of content creators should be considered secondary to those of “innovators” (a.k.a. tech interests). It paints a predictable–but false–scenario where rights holders are running amok by flooding poor service providers with unsubstantiated takedown notices.
We are worried about language that would force service providers throughout the region to monitor and police their users actions on the internet pass on automated takedown notices, block websites and disconnect Internet users.
It’s the old canard whereby web users’ right to steal copyrighted content trumps the creator’s right to remove it. The reason we have “automated takedown” processes in the first place is the amount of theft is so massive, that for many rights holders, it’s the only way to make a dent in the un-checked online copyright infringement that’s been unleashed in the name of “innovation.” Google has to deal with millions of takedowns because it enables (and profits from) millions of infringements. Even Google admits that the number of erroneous takedowns is minute (3%) compared to the number of valid ones (97%). The EFF asks for “flexibility” for nations to “establish takedown systems.” It’s a malleable term one could drive a truck through that would unquestionably undermine the entire point of writing IP protections into the agreement in the first place. Of course that’s precisely why the EFF and its shadow kingpins are pushing it. The fact is that there’s no such thing as borders in today’s digital world and treaties such as the TPP may be the only way to forge a path forward where IP can be protected in a meaningful, global way and nurture creative business in developing countries. Indeed, to gut IP protections by allowing nations “flexibility” would lead us back full circle to our current morass–a patchwork of enforcement that undermines any meaningful protection for creators rights around the globe. As Peter S. Mennell, noted law professor and co-director of U.C. Berkeley’s Center for Law & Technology wrote in a paper published this past April, This American Copyright Life: Reflections on Re-equilibrating Copyright for the Internet Age:
U.S. treaty and trade negotiators should celebrate and nurture Bollywood, Nollywood, and other creative communities as a primary focus for achieving global copyright protection. The U.S. should not be seen as an IP bully on the international stage but rather as a genuine partner willing to lend a hand up to nations willing to support their creative industries. Such a policy has the added bonus of promoting free expression and democratic ideals.
The EFF, and those drafting this trade agreement, should be mindful of what defines “democratic ideals” and acknowledge that creators worldwide “are worried,” and rightfully so, about an unbalanced online eco-system whereby the rights of certain users and business interests routinely trump the rights of artists. The letter raises EFF questions whether the TPP is “pushing proposals that that would truly enable new businesses to flourish in our countries in the decades to come.” For accuracy’s sake, perhaps the EFF should just be clear about their goals (and those of the tech companies that send millions their way) and clearly ask the TPP to bow to pressure and push proposals that would “truly enable” copyright infringement to “flourish” un-checked in the decades to come. After all, companies like Google traffic in content and the fewer obstacles to using and disseminating said content, the more profits for them. If you look at the list of signatories on the letter is a predictable (tech) bunch and attached to the document is the EFF’s own screed on “Abuse of the Copyright Takedown System.” As part of its advocacy efforts, the EFF routinely muddies the waters and conflates valid concerns over online privacy and free speech rights with copyright holders’ efforts to protect their work from infringement. Protecting rights within all three realms is important and doing so effectively, despite EFF rhetoric to the contrary, need not be a mutually exclusive process. The EFF approach to protecting “rights” in the digital age has always has been disingenuous. Gin up hysteria in order to push an anti-copyright agenda–an agenda, covertly built on the interests of the tech industry and NOT the community at large. For the record, protecting copyright is defending free speech. The EFF’s letter to TPP negotiators is just one more link in its (tech-funded) chain of lies.[/vc_column_text][/vc_column][/vc_row]
by Ellen Seidler | Law, Music, Politics, Publishing
Time for music licensing to meet the 21st century
For consumers, the digital age means accessing music anywhere, anytime at a very low cost (or free) but the picture isn’t so rosy for those who actually make their living writing and performing music. Everyone acknowledges that online piracy was the first tsunami to hit the music industry, but now, though legal, the rise of streaming services like Pandora and Spotify have served to further undermine creators via an antiquated and utterly lopsided licensing system. While most consumers remain blissfully unaware of the complexities of the music licensing maze, those who depend on it for their paycheck are acutely aware that it’s in dire need of an update. In the eye of the storm sit nearly 75-year-old “consent decrees” that determine how rates are set for various forms of music licensing. With the advent of online streaming, those who make their living creating music have found that the outdated decrees have hamstrung their ability to earn a living in the digital age. As William McConnell explains in his piece “Copyright debate has new tune in the age of streaming” published on thedeal.com:
Artists and the publishing industry say the system needs to be revamped with the advent of digital delivery technology that has devastated sales of traditional CDs. That trend has intensified as listeners increasingly rely on streaming services like Pandora, Spotify, Grooveshark and Beats Music rather than on digital song-purchasing services like Apple Inc.’s iTunes, which pay artists and publishers significantly higher fees. The shift has cut into artists’ earnings from recording music.
The Antitrust Division of the Department of Justice has opened a review of ASCAP and BMI Consent Decrees and is soliciting public comments. ASCAP President and Chairman Paul Williams issued this statement on the review:
We are gratified by the Department of Justice’s decision to open a formal review of the ASCAP and BMI consent decrees. Since the ASCAP decree was last reviewed in 2001 – before even the iPod was introduced – new technologies have dramatically transformed the way people listen to music. ASCAP members’ music is now enjoyed by more people, in more places, and on more devices than ever before. But the system for determining how songwriters and composers are compensated has not kept pace, making it increasingly difficult for music creators to earn a living.
ASCAP remains committed to working with the Department of Justice and all industry stakeholders to modernize the music licensing system so that it better serves songwriters, the businesses who depend on our music and the people who listen to it – not just today, but for generations to come. Updating music licensing regulations to reflect the realities of today’s music landscape will preserve the benefits of collective licensing to businesses that license music, give consumers greater access to the music they love and allow the more than 500,000 songwriters, composers and music publishers we represent to be compensated for the true value their music brings to the marketplace.
With the deadline on August 6th for public comments fast approaching, it’s crucial that songwriters and those who support them speak up on the issue. As musician David Lowery explained in a call to action, published today on The Trichordist:
The DOJ is reviewing the WWII era consent decrees that force songwriters under federal court supervision for supposed anti-competitive practices. Yes the awesome power of the federal government is being used to protect multi-billion dollar companies like Clear Channel, Sirius, Pandora, YouTube/Google, Amazon and Spotify from hippy freak songwriters. Considering that many of these companies are effective monopolies it’s a stunning abuse of federal power on behalf of a few politically connected corporations. The consent decree forces songwriters to allow these services to use our songs while a single appointed for life judge (song czar) makes arbitrary sets our rate of compensation. You may remember that I posted that my million spins on Pandora earned me less than $17? And I can’t even opt out of this service. How is that even fair? That’s how this kind of outrage occurs. This amounts to a government mandated subsidy from songwriters to some of the largest companies in the world. If you are a songwriter, please submit comments. The DOJ specifically would like to hear from you. If you don’t’ understand the legalese just make a simple statement about how you feel about the compensation from these digital services that results from these consent decrees. Be passionate but polite. Here are the instructions: http://www.justice.gov/atr/cases/ascap-bmi-decree-review.html
You should check out Lowery’s post to read the complete comments he posted in response to the DOJ solicitation as well but here’s his opening paragraph:
I am an American songwriter, a member of BMI and a member of the bands Cracker and Camper van Beethoven. I’m submitting this comment on my own behalf in opposition to the ASCAP and BMI consent decrees. I believe these government actions essentially are a compulsory license outside of the Congress and take away songwriters’ rights to due process of law.
You can find out more on the DOJ’s review here but here’s an excerpt as to what they are seeking and where to send/email your comments:
Public Comments Are Solicited
As part of its review, the Department invites interested persons, including songwriters and composers, publishers, licensees, and service providers, to provide the Division with information or comments relevant to whether the Consent Decrees continue to protect competition. While Performance Rights Organizations, such as ASCAP and BMI, monitor for unlicensed uses, enforce copyrights against unlicensed users, and administer copyright royalties, the Department is most interested in comments on competitive concerns that arise from the joint licensing of music by Performance Rights Organizations and the remediation of those concerns.
In particular, the Department requests that the public comment on the following issues:
- Do the Consent Decrees continue to serve important competitive purposes today? Why or why not? Are there provisions that are no longer necessary to protect competition? Are there provisions that are ineffective in protecting competition?
- What, if any, modifications to the Consent Decrees would enhance competition and efficiency?
- Do differences between the two Consent Decrees adversely affect competition?
- How easy or difficult is it to acquire in a useful format the contents of ASCAP’s or BMI’s repertory? How, if at all, does the current degree of repertory transparency impact competition? Are modifications of the transparency requirements in the Consent Decrees warranted, and if so, why?
- Should the Consent Decrees be modified to allow rights holders to permit ASCAP or BMI to license their performance rights to some music users but not others? If such partial or limited grants of licensing rights to ASCAP and BMI are allowed, should there be limits on how such grants are structured?
- Should the rate-making function currently performed by the rate court be changed to a system of mandatory arbitration? What procedures should be considered to expedite resolution of fee disputes? When should the payment of interim fees begin and how should they be set?
- Should the Consent Decrees be modified to permit rights holders to grant ASCAP and BMI rights in addition to “rights of public performance”?
All comments should be submitted by electronic mail to [email protected] by August 6, 2014 and will be posted in their entirety for public review at this web address. Information that parties wish to keep confidential should not be included in their comments. Comments may also be sent, preferably by courier or overnight service, to
Chief, Litigation III Section Antitrust Division U.S. Department of Justice 450 5th Street NW, Suite 4000 Washington, DC 20001
Also worth noting–and supporting–is the proposed Songwriter’s Equity Act, which is “an important step toward leveling the playing field and modernizing the music licensing system. It will ensure that songwriters, composers and publishers are fairly compensated for the use of their music.”
