The 9th Circuit was effectively told by Google counsel they were engaging in conspiracy theories. Then they were forced to produce documents by the court. Turned out court was right. #ConspiracyFacts

On the morning of April 25 less than 24 hours after the Music Modernization Act passed the House 415-0. Mark Lemley a professor at Stanford wrote the following letter to a group of IP Lawyers:

“I think this term extension is unnecessary. I am thinking of putting together a short professors letter arguing that if Congress is to create a sound recording digital public performance right, it should expire when a corresponding copyright would naturally have expired and should be subject to the same limitations and defenses as copyright law. If you are interested in helping put together such a letter, please let me know. Time is short. If you think I am misreading this for some reason, I’d like to know that too.”[1]

This is significant for two reasons. This email appears to be the basis of the “Gang of 40” IP professors letter in opposition to the Classics Act.  Opponents of the Classics Act (mostly Google funded EFF and Public Knowledge) have used this letter to try to block or gut the legislation, by shopping the debunked claim of copyright term extension to Senate staff.

Second according to the a court document commonly referred to in press as a “shill list” (Oracle v Google) Lemley has acted (continues to act?) as outside counsel for Google. He is a long time advocate for Google’s policy positions.  He also features prominently in the “Google Academics Inc”, report published by Google Transparency Project.  This report details Google’s funding for academic institutions and research, and notes how it appears to have predictable results on the research conclusions produced by academics. That is, the research conclusions generally support Google’s public policy positions. Some have criticized the inclusion of certain professors in this report, but Lemley’s inclusion appears uncontroversial. Lemley unlike many other professors does not seek to hide his connections to Google.

To be clear, Lemley is doing nothing illegal or unethical.  However if you put the Gang of 40 letter in the context of the greater public policy debate around The Classics Act this letter is extremely problematic for Google. For this letter appears when Google, through its trade policy group DiMA, was telling congress that they were negotiating in good faith with performers, songwriters and other rights holders. They held (and still hold) a public position in support of The Classics Act. Yet the letter appears to have been produced by Google outside counsel.  This would seem to imply negotiators for DiMA were unwittingly being undermined by their own side, or (more likely IMHO) negotiators were in on it and are continuing to play a double game.  That is not acting in bad faith, it is acting in terrible-fuck-you-extra-googley-bad-faith.  For a second time.

Senate Staff should look into this.

[1]This email was provided by multiple sources.  Further the published excerpt was verified by yet another recipient of the email.