I’m posting my letter to the Copyright Royalty Judges about the Mechanical Licensing Collective “voluntary settlement” with the DLC. It may be voluntary for some people, but it was negotiated after shutting out everyone else from the negotiation on a technicality. Trichordist readers will probably be very interested in the issues and may want to send their own complaint to the Judges.
After delays for over a year that scared off any competition (whether or not intentionally), now they want to jam it through the Copyright Royalty Judges without a public comment from the people that will be most affected. Bad move because the public will comment anyway.
I call bullshit. Plus an astonishing attempt to deny the Judges the legitimate opportunity to hear new ideas that they might want to take into account in their decision. It is THEIR decision after all. We are not governed by unaccountable lobbyists.
You may have heard that the MLC and DLC have decided on how much the rich guys are going to pay the songwriters after forcing out any independent songwriter groups from having a voice in the “proceeding”. That maneuver prevented the Copyright Royalty Judges from hearing from independent songwriters and of course startups were nowhere to be seen, no doubt scared to death from challenging the big boys who can snap their hopes like twigs. (That is an old story. Remember the Microsoft anonymous amici who were too scared to reveal their identities to complain about Microsoft’s anticompetitive business practices?(
The Judges, who are supposed to now bless the settlement and turn it into law, have one more chance to hear from songwriters, publishers, and startups who will have to live with this thing.
The Judges have the power to open the settlement to public comment so the Judges may take into account any views from songwriters and startups brave enough to challenge their “betters” before they rule on the closed door settlement. We all know they will hear from us after, particularly since the settlement just happened to get announced before the December 9 “reply comment” deadline for the Copyright Office’s proposed rules on the MLC. It would be best to send your comments on the settlement directly to the Copyright Royalty Judges at Crb@loc.gov since the Judges, not the Copyright Office, have the power to change the settlement for good cause and fundamental fairness.
Here is my letter to the Judges:
David C. Lowery
Dear Copyright Royalty Judges:
I have read the proposed settlement reached by the MLC and the DLC that was posted on the CRB site. Without commenting on the substance of the settlement, which has many, many holes, I respectfully wish to call the Judges attention to one particular section:
Adoption of the Settlement by the Copyright Royalty Judges
Pursuant to 17 U.S.C. § 115(d)(7)(D)(v):
In lieu of reaching their own determination based on evaluation of relevant data, the Copyright Royalty Judges shall approve and adopt a negotiated agreement to establish the amount and terms of the administrative assessment that has been agreed to by the mechanical licensing collective and the digital licensee coordinator… except that the Copyright Royalty Judges shall have the discretion to reject any such agreement for good cause shown. An administrative assessment adopted under this clause shall apply to all digital music providers and significant nonblanket licensees engaged in covered activities during the period the administrative assessment is in effect.
Importantly, the settlement of this Proceeding is not subject to public comment. See id. (noting that the Participants are the parties that have to agree to settle this Proceeding); see also 37 CFR § 355.4(c)(4) (outlining procedure by which only other participants, and no others, may file comments on a proposed settlement within five days of the filing of a proposed settlement); Order Granting Joint Motion to Modify the Case Scheduling Order (setting the schedule for non-settling participants, and no others, to comment on any proposed settlement). The Participants are pleased to have reached the Settlement, which meets the statutory requirements of Section 115(d)(7)(D) for the initial Administrative Assessment.
This is outrageous.
First of all, I’m not a lawyer but when I read the authority these people cite for barring comments from the people who have to deal with the consequences of what they have negotiated, I don’t think the Judges are prohibited from taking comments from the public on the settlement. In fact, I find this paragraph to be extraordinarily self serving and makes me ask who do these people think they are?
The Judges should take into account that no startup has been present or able to negotiate the many burdens placed on them by this settlement. In particular, they have not been able to be heard by the Judges on the scope of these financial burdens that their competitors—some of the richest multinational corporations in history—have unilaterally decided to place on them with no push back.
This isn’t to say that any would be brave enough to come forward and challenge their betters if given a chance. But they should at least be given a chance.
Plus, the Judges need only take notice of some of the comments filed by songwriter organizations with the Copyright Office (Docket COLC-2019-0002) to read for themselves that many songwriters do not feel they have been represented in this proceeding. If that is not “good cause shown,” I don’t know what is.
Respectfully, I think it would be a grave, grave mistake and an unfixable miscarriage of justice, to deny the public the opportunity to comment on this settlement. Because the public will comment, maybe not in the proceeding but comment they will and for a very long time.
I hope the Judges will not miss this opportunity to exercise their legitimate oversight role for both the DLC and the MLC.
Is Ron Wyden an Idealistic Progressive or Just Another Sleazy Pol?
Sen Ron Wyden D-OR is the last congressional true believer in a completely unregulated wild-west cyber-libertarian-internet. A “free internet” that works quite well for internet wolves, but not so much for the rest of us. He seems to be the only guy left in the Senate willing to lay his credibility on the line to protect any and all internet bad actors. Is this radical idealism or is he just another politician pandering to rich and powerful interests?
I have already formed my opinion of Wyden. Sen Ron Wyden has been a relentless foe of copyright reform legislation that would benefit artists. And a champion of legislation that would benefit digital behemoths. Wyden opposed the Classics act and is one of two Senators currently opposing the CASE Act (the other is the kooky Sen Rand Paul). He sponsored the Orwellian named Internet Radio Fairness Act that would have slashed artist royalties more than fifty percent. This act would have benefitted a handful of multibillion-dollar tech companies. No one else. Pure corporate welfare. Fortunately, the bill was crushed. Wyden represents thousands of musicians that call Oregon home. Portland is arguably not far behind Austin TX as an independent music mecca. Aside from a handful of Silicon Valley engineers employed at server farms in the Eastern Oregon desert, he doesn’t represent Silicon Valley. He did, however, grow up in Palo Alto in the heart of Silicon Valley.
This guy claims to be a progressive democrat, yet aside from some lip service on social issues, there is no evidence he is actually progressive. Like Nike, the actual evidence is all to the contrary. Sweatshops and shilling for corporate monopolies is not a progressive value. Now perhaps because I am an artist and I am directly harmed by Wyden’s devotion to moneyed interests in Silicon Valley, I am looking at this through a different lens than the “average” American. I obviously have my biases.
What is something objectively bad that all Americans can agree is bad? What can we look at that will resonate with average Americans? Child sex trafficking? There are surely not two reasonable sides to this debate. Surely all Americans can agree it is horrific. Let’s look at Wyden through this lens. A decent non-kooky senator would not oppose a narrow amendment of Sec 230 (FOSTA/SESTA). A narrow amendment to make Backpage and other internet platforms liable for blatant child sex trafficking on their sites, would they? And surely a decent non-kooky Senator wouldn’t stick their neck out to oppose an amendment overwhelmingly supported (97-2) by a bipartisan coalition of senators?
Yet Wyden did. Wyden was one of two Senators to vote against FOSTA/SESTA and the only Senator to speak against FOSTA on the house floor. A rather dramatic and long speech. Read it here.
Why did all (non-kooky) Senators, other than Wyden see FOSTA/SESTA as a necessity? As NPR explains:
Over the years, victims and their families brought case after case against Backpage — and lost. The website kept convincing judges across the country that Section 230 shielded it from liability for the posts of its users. Major digital-rights groups, including the Center for Democracy and Technology, argued that holding Backpage liable could have chilling effects for social media and other websites.
This bewildered Mazzio: “How is it possibly legal that a website that makes millions and millions of dollars has no accountability for this crime?” she says. “Section 230 has turned into a Teflon shield, not to protect free speech but to protect business revenue.”
The Supreme Court last year declined to hear victims’ appeal in the case of Backpage and Section 230.
Why did Wyden oppose FOSTA? Wyden’s speech on the Senate floor is telling. Wyden argues making these sorts of child sex trafficking ads illegal would drive this activity underground and make it harder to prosecute. Sounds sort of reasonable. I guess. If you’re an idiot. By Wyden’s logic:
We should allow dogfighting ads to make this activity easier to prosecute?
We should allow black-market Fentanyl and Oxycontin ads to make dealers easier to prosecute?
We should allow ads for fake securities, insurance, and other financial scams to make it easier to prosecute the fraudsters?
Why stop there? We should allow murder-for-hire ads on internet platforms to make hitmen easier to prosecute?
How bout snuff films?
And yes he really does make this argument:
I fear that the legislation before the Senate will be another failure. I fear it will do more to take down ads than take down traffickers. I fear it will send the bad guys beyond the grasp of law enforcement to the shadowy corners of the dark web, where everyday search engines don’t go, but where criminals find safe haven for their monstrous acts.
This is the democratic Senator from Portland Oregon making this argument. I went to UC Santa Cruz in the 1980s. Banana Slugs. We didn’t have grades. We had a gay Marxist mayor. We had the first non-gender specific bathroom protests. My girlfriend was in a play in which she played a man playing a woman. I sold alfalfa sprouts in college. Not any alfalfa sprouts but organic alfalfa sprouts. Therefore I’m pretty sure Wyden’s argument above is not a progressive argument.
But Wyden doesn’t stop there. He also makes the dubious claim that internet giants like and backed this legislation because it cements their monopoly in place by burdening start-ups with new regulations. This is at best inaccurate. While it is true that IBM supported this legislation, Facebook was at best ambivalent, almost all the other big tech companies, and crucially the search monopoly Google did not. Further, Google and Google executives actively funded groups (and academics) that opposed FOSTA. And Wyden repeated their talking points nearly verbatim. As if he was simply a puppet. I say this because a highly trained registered lobbyist would not have been as on point as Wyden. Clearly, Wyden will have a cushy post-Senate career as a corporate mouthpiece and lobbyist. If he doesn’t work directly for a tech giant.
The most damning evidence of Google’s opposition to FOSTA comes in a bumbling hamfisted admission at a Google shareholder meeting. In the video below Consumer Watchdog advocate John Simpson reads a letter from “Nicole S” a young woman featured in the horrifying child sex-trafficking documentary, I am Jane Doe. In the letter, she asks Google why they are funding groups opposed to FOSTA. Eric Schmidt and other top Google executives squirm uncomfortably. Chairman Eric Schmidt is visibly angered by the end of the clip. If the subject wasn’t so sickening it would be delightful.
Google clearly did not like being called out on its involvement in the orchestrated campaign that apparently included a US Senator. In the end, Google lost and Wyden lost. But Wyden and Google managed to delay the bill for some time. How many children were trafficked or even killed during this time? It is not hyperbole to say Wyden and Google may have blood on their hands. Coincidentally (or not) a few months after this video was filmed, Google Chairman Eric Schmidt resigned as a wave of allegations of sexual misconduct by top Google executives became public. Wyden is still a US Senator. At least for the time being.
The Time I Met Sen Ron Wyden
I’ve written a lot about Senator Ron Wyden over the years. I think it may be of interest that I didn’t start out as a critic of Wyden. I criticized a bill he sponsored and he came looking for me! It was November of 2012 and I had been invited to participate in a panel at The Future of Music Summit. The panel was titled “Radio Active” and we were debating the merits (or lack thereof) of the Internet Radio Fairness Act (IRFA). I had a number of criticisms of IRFA, mostly concerning the slashing of artist royalties. But I was also concerned about what appeared to be an unconstitutional muzzling of the speech of independent artists and songwriters. I showed the slide below and argued that this part of the Internet Radio Fairness Act was written so broadly it would make any discussions of direct licensing and subsequent royalty rates among musicians a violation of the Sherman Act.
The century-old Sherman act was designed to break up trusts and cartels. It authorized the federal government to break up any businesses that prohibited competition. Wyden’s bill attempted to turn the act on its head and make it a tool to protect internet cartels from musicians. Appalling to say the least. Again, I went to UC Santa Cruz and I don’t remember “protecting monopolies from workers asking for fair pay” as a key tenet of progressivism. But I don’t know, I smoked a lot of weed back then, I could have missed something. But I digress.
About an hour after my panel, Wyden came blustering into the conference, ostensibly for his keynote address. But as soon as he took the microphone he started asking who it was that said he (Wyden) was limiting free speech? He was pointing around the room. He is a tall man and I suppose he is physically intimidating. He was clearly angry. I have a terrible impulse to laugh in these sorts of situations. Despite this, I managed to keep a straight face and raise my hand. He asked me if I knew anything about his career and his unwavering support of free speech. I didn’t know what to do other than read him one of the offending passages from his own bill:
Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).
This clearly took him by surprise and after hemming and hawing about boilerplate language for ephemeral copies(?) he conceded:
“I certainly would never ever support anything that would restrict free and open speech, particularly artists’ expression,” Wyden said. “If the consensus in the legal community is that this restricts the First Amendment, it will be a very short-lived provision.”
I appreciated the sentiment, but unfortunately for Wyden, this implied he didn’t know what was in his own bill. Not a good look. It’s an open secret on Capitol Hill that industry lobbyists, attorneys from trade groups, astroturfs and bought off academics often write the legislative language. So who wrote this bill? Pandora? SiriusXM? Paid lobbyists? Professor Google Money?
About a year later I was considering speaking at SF Music Tech. This conference is sponsored by a host of technology companies (but most notably Google) When I spoke to one of the organizers of this conference he informed me that his “sponsors” wouldn’t appreciate me speaking there because (among other things) I had been “incredibly rude to a US Senator.”
What? I don’t even know where to start with that! SF and the Tech Industry? I thought these guys and that town loved disruption! What is more disruptive than an indie musician taking on a Senator that’s been in Washington 30+ years! I see. It’s like the old Mr. Show skit featuring an employee training tape for the Marilyn Mozzarella Pizza Rella Pie Parlours “Don’t forget to break some rules!.. but don’t really break any rules.” No wonder the SF Music Tech Summit was held at the Hotel Kabuki!
But the whole episode got me thinking about Wyden’s relationship with these Silicon Valley companies. Yes, Wyden did grow up in Palo Alto in Silicon Valley. I’m sure there are a number of one or two-degree separations from tech executives. But there was a hint of “our guy” in the way he was being treated. If this were 1920s Chicago I could easily imagine someone saying “You insulted our bought and paid for Senator!” Not that I’m saying he is bought and paid for. Nor does this article offer any definitive evidence of some such scheme. But I was getting the impression Wyden was Silicon Valley’s Senator. This gave me the idea to poke around in the Senator’s campaign finances.
“The Hedge Fund is Coming From Inside The DC TownHouse!” Or “Don’t Go Down Into The Basement Hedge Fund!”
Which title do you like better? I couldn’t decide so I used them both. Might as well use this as an opportunity to poll you.
I accidentally stumbled across the story above when I was researching Wyden donors. D.E. Shaw caught my eye. Shaw has an eponymous 80 billion dollar hedge fund. So Wyden’s son Adam does an internship for a campaign donor. Okay. Nothing illegal. But then when he’s finished “someone” gives the kid 3 million dollars to start a hedge fund in dad’s basement?
If that investment came from D.E. Shaw or any other campaign donor (who else would it come from?) that could be a campaign fund violation. Or outright bribery. Or maybe not. I mean sure, plenty of people give 3 million dollars to a 26 year who spent a few months making coffee or fancy excel spreadsheets for Wall Street Brahmin. Most journalists who reported on the story clearly had an eyebrow arched. Here Business Insider reports
But a D.E Shaw spokesperson assured Bloomberg, “Adam went through the same rigorous vetting and interview process as all other D.E. Shaw group interns.”
The reason observers might think otherwise is because David Shaw has donated thousands of dollars to Senator Wyden’s election and re-election campaigns in 2004 and 2010. Shaw and his wife each gave the maximum $4,800 each that they’re allowed to donate for any single election cycle, to Wyden.
Shaw also contributed $5,000 in 2010 to Holding Onto Oregon’s Priorities, a political action committee established by Wyden, according to Campaignmoney.com
And apparently, the younger Wyden had a pretty good first year. As Bloomberg reported in 2011:
Wyden’s best personal trade last year was an investment in IDT Corp. starting in February, when the Newark, New Jersey, telecommunications company traded at an average of $4.84 a share, he said. IDT now is at $23.90
Adam Wyden’s fortuitous timing on IDT shares.
IDT. The company was a total mess at the time of the younger Wyden’s bet. Good timing on his part. I guess. I found only two curious things about this investment. According to several DC insiders, Senator Wyden was once quite close to IDT’s chief lobbyist at the FCC. A guy named John Windhausen. Funny name. Should have been a politician with that name. There were some FCC decisions during this time that seemed to have benefitted IDT. This may have sent the stock up. Or maybe not. But also odd, Adam Wyden in a fairly long interview talked about his big gain on IDT but he doesn’t mention once the company’s main business: Prepaid calling cards. A business heavily regulated by the FCC and highly dependent on favorable rulings from the commission. A small change in interconnection fees/rules would make or break this company.
Do Spies Go With That Shake?
Spoiler Alert: ADW Capital Management and ADW Capital Partners together own approximately 20% of this defense/intelligence contractor. But the investment is tucked inside a restaurant point-of-sale (POS) software company. Senator Wyden is on the Intelligence Committee.
I wrote about all this ADW Capital Partners nonsense a while back but no one seemed to think it was unusual a Senator’s son had a hedge fund in the basement. So I sort of gave up. We seemed well on our way to the same sort of senatorial kleptocracy that destroyed ancient Rome and this was not even a sideshow to the main circus. I get it. No One Cares.
The Senator has since continued to make life miserable for artists. Recently he and the kooky senator from Kentucky put a “hold” on the Case Act in the Senate. The CASE Act is a voluntary copyright small claims court proposal. It enjoys widespread support in the House (410-6) and Senate. But it will never be voted on because Senate rules allow a single Senator to block a bill. That seems unconstitutional to me as well.
Whenever Wyden does something like this I poke around in his campaign finances. And this time just for the hell of it, I decided to look at what his son’s hedge fund was doing. I hadn’t checked in a while and was surprised to see ADW Capital Management and ADW Capital Partners now have over 300 million dollars. Is it any surprise a Senator’s son can raise $300 million dollars? Credence Clearwater Revival would not be surprised. He also has hired one employee since his basement days. So two folks manage a 300 million dollar hedge fund out of a 700 square foot suite in Manhattan. I guess that’s normal.
ADW Capital Management and ADW Capital Management Partners Holdings according to WhaleWisdom.com
I went to Whalewisdom.com to look up the holdings. An odd set of companies. A very small set of companies. Four companies in total. Plus something derivative traders call a “covered call” strategy. I’ve never seen a hedge fund with such concentrated holdings. The second hedge fund has three of the same four companies. Weird. He’s also doing quite poorly this year. But hey, maybe there is some real science behind this. You don’t make money doing what everyone else does.
RACE is Ferrari. And it’s coupled with the sale of “calls.” Essentially a bet the stock won’t rise.
EVI is a dry cleaning supply, equipment, service, and franchise business. Mostly in Carribean and South/Central America.
SIC is basically a distributor of stone countertops and such.
The last is ParTechnology which seems to be a maker of restaurant point of sales software. As I was typing this into a search engine I got “PAR government” as an auto-suggestion. I assumed it must be a similarly named unrelated company. Because PAR Technology is a restaurant point of sales software company and there is no mention of a defense and intelligence division on their website. However, a quick search of the SEC website turned up a Form 10-Q that confirmed PAR Government was indeed a subsidiary of the restaurant point of sales company. Interesting.
According to the website GovernmentContractsWon.com, in 2018 Par Technology won 27 defense contracts for a total of $21,652,632. Over the last two decades, this company has won 187 defense contracts worth almost $300 million. This amount would not include pure intelligence agency contracts as generally those are classified.
There is also another subsidiary of ParTechnology called Rome Research Corporation. This is another defense intelligence contractor based at the same address. According to GovernmentContractsWon.com this company has received a whopping $567,265,220 in defense/intelligence contracts since 2000. Since they share the same parent company it is possible some contracts are counted twice. But I didn’t immediately see any overlap.
Okay. I guess I’m burying the lede here, but it would appear that the defense/intelligence subsidiaries discreetly tucked into PAR Technology Corporation are not the tail at all. No, they seem to be the dog. And between ADW Capital Partners and ADW Capital Management, Adam Wyden, son of Senator Wyden, controls 20% of these companies.
And guess who sits on the Senate Select Committee on Intelligence?
JFC! Shouldn’t someone investigate this shit?
Also, next time Wyden takes a stand on civil liberties, government spying or drone strikes? Remember it’s utter bullshit. His son seems to be waist-deep in all of it. So Sen Wyden doesn’t know? I don’t believe it for a minute.
As the clock ticks down for the MLC under the Music Modernization Act, the Copyright Office oversight role may require some innovation on the global rights database mandated by the MMA. One way would be to harmonize copyright registrations with registrations for the Mechanical Licensing Collective. (Songwriters outside the US may be puzzled by all this registering due to the prohibition on formalities in the Berne Convention, but right or wrong that MMA requires songwriters to register with the MLC if they want to get paid under the blanket license.)
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.” Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.
So while you don’t have to register to get copyright protection, you will have to somehow get into the MLC’s database if you want to get paid by the MLC (and file an IRS Form W-9, etc.). But–if you are going to register your song for copyright, why should you have to start over again to register for the MLC?
It seems like a simple solution for the Copyright Office to harmonize these separate but related registrations would be to have the Copyright Office online registration system have a check box to allow you to sign up with the MLC. Simply a box to check that would autopopulate your MLC registration along with other docs you might need for the MLC (like the W-9 the MLC will no doubt have to get for every songwriter they pay.)
If there’s a cost for this extra IT, that cost could easily be charged back to the services to be paid through the “administrative assessment”. The first assessment is currently being litigated, so there’s no time like the present to get this issue in front of the Copyright Royalty Judges. Plus, there’s no reason for the MLC registration to be delayed while the copyright registration is processed since the right to get paid under the blanket license is not contingent on the copyright registration. Songwriters wouldn’t be charged to register with the MLC because the copyright registration fee is already established for the copyright registration alone.
And of course, the MLC could have a reciprocal sign up for copyright registration as part of the MLC registration process for songwriters who start there first. Again, all that IT cost should be paid by the services.
No, this is not a joke. Try it yourself. Try to sign up for TikTok with your Twitter account. Twitter basically lets TikTok make your account part of a TikTok twitter botnet. Don’t be surprised if your twitter account starts reporting tweets that mention Winnie the Pooh. It is stunning the permissions that Twitter grants to the social media company, as evidence grows the company is being used as an influence machine for the Chinese state. Maybe it is just because Twitter feels a special kinship to TikTok They both refuse to license music.
As Foreign Policy magazine noted a year ago:
“ByteDance has already been repeatedly forced to bend the knee to party authority at home. Most punishingly, in April 2018 the government compelled ByteDance to shut down its popular “Neihan Duanzi” (“inside jokes”) app for good due to its “vulgar” content. In response, Zhang issued a letter of self-criticism where he said, “Our product took the wrong path, and content appeared that was incommensurate with socialist core values.” He also promised that the firm would in the future “Further deepen cooperation with authoritative [official party] media, elevating distribution of authoritative media content, ensuring that authoritative [official party] media voices are broadcast to strength.”
“After getting rapped over the knuckles for promoting what authorities called “vulgar content” on its popular video and news apps in April, ByteDance announced it would hire 2,000 more people to review content. The job ads noted that party members and candidates with “strong political sensitivity” would be preferred.”
“TikTok, the popular Chinese-owned social network, instructs its moderators to censor videos that mention Tiananmen Square, Tibetan independence, or the banned religious group Falun Gong, according to leaked documents detailing the site’s moderation guidelines.”
What’s going on here? I don’t know about you, but maybe congress should give Jack Dorsey an invitation to come in and explain why he’s turning over US citizen’s twitter accounts to a Chinese company with deep ties to the Chinese government. First question: How many Twitter accounts has TikTok been given access to?
Readers of this blog know that we have been focusing on the mass infringing music video site TikTok. This company and employees have utter contempt for artists, yet their service is absolutely useless without our music. What assholes right? What is less well known is that TikTok’s parent ByteDance is a $73 billion Shanghai-based company staffed and moderated by thousands of Chinese Communist Party members. So essentially this is an arm of the Chinese state propaganda machine. And these fucks can’t afford to license music?
So it was with some gratification that I saw reports that The Committee on Foreign Investment in the United States (CFIUS) has opened an investigation into the purchase of Musica.ly (original name of TikTok) by Byte Dance. Apparently, a number of congressmen became concerned about TiKTok and asked CFIUS to open an investigation. I’d like to think that all of you that retweeted my thread on TikTok a couple weeks ago had something to do with it.
Just another quick reminder. The Rhapsody(now rebranded Napster) class-action settlement claim portal is open. Songwriters that registered their works with the copyright office and had their work streamed at least once on the service (during the covered period) will receive $35* per work (pro-rated by ownership share). This is many multiples of what the Spotify class action pays out per work.
Further, the Rhapsody class-action settlement, unlike Spotify settlement, also pays on unregistered works. If your unregistered works were streamed at least 10 times during the covered period the self-published songwriter can claim $1* per work.
I’ve looked at catalogues of a number of small indie publishers and songwriters that will likely receive several thousand dollars. This is real money. The settlement closes 12-31-2019.
A “Theodore Kaczynski” from Lincoln Montana signs a Google-funded astroturf petition over and over again.
Google-funded and affiliated astroturfs have mounted a spambot campaign targeting Senators to vote against the CASE Act. The CASE Act (voluntary small claims copyright court) passed the house 410-6. Google and their allies are worried because independent artists and creators might now have a decent shot at enforcing their copyright. Corporate backed astroturfs first mounted a wild disinformation campaign against the CASE Act. See this blog here.
When that didn’t work they launched a series of easily automated web forms designed to deluge Senators with emails, tweets, facebook posts, phone calls, and messages on the senator’s websites. As we saw with the FCC Net Neutrality battle, these forms leave us with tons of fake comments. According to Pew Research, 94% of the 22 million comments to FCC on Net Neutrality were identical to hundreds, thousands, even millions of other emails. Spambots are screwing with our democracy. How can our representatives hear what their constituents really think if they are deluged with spam?
As has always been the case, best we can do is call our Senators (and don’t use a script.)
However, in the meantime anytime you find one of these forms below? Maybe replace the canned message with a message that lets the Senator’s office know it’s simply a Spambot from one of these Astroturfs. You don’t have to lie about anything. Use your real name. Tell em it’s spam. Make the Spambots the issue. Eventually, maybe these astroturf will stop using these forms if every Senator knows they are spam, and we can go back to our old only partially dysfunctional democracy.
Every web form I’ve found are curiously defective in the same way: you can usually refresh the page and sign, email, tweet, call with the same message over and over again. At top of this blog, I take one of these bullshit petitions and have Ted Kaczynski sign it over and over again leaving the exact same comment each time. Hope you enjoy.
Scientists have concluded the Senator’s official photo likely violates the Myspace Rule: profile photos may not be older than (Current Age/10) – 1 year.
We are reprinting this article because once again Wyden is siding with Silicon Valley rather than his own Oregon constituents. #PrimaryWyden2022
The longtime democratic Senator loves to boast about his progressive bona fides but when you look at his legislative record a different story is told. Sure he’s progressive on social issues but on everything else? He appears to be in the pocket of monied Silicon Valley interests, broadcasters and hedge funds. For our readers, the key issue is Wyden reliably supports legislation and policies that enrich anti-union right-wing billionaires and impoverishes union performers and songwriters.
IRFA or (the Orwellian named) Internet Radio Fairness Act. This was his bill. It would have slashed digital radio royalties to (largely union) performers as much as 70 percent. The beneficiaries? The Silicon Valley VCs backing all these digital broadcasters. Fortunately, the bill was withdrawn. What kind of “progressive” tries to pass a law that slashes wages to workers while enriching a cartel of mostly right-wing billionaires? Disgusting right?
Not convinced? How bout the recently passed Music Modernization Act? Parts of the bill were controversial, but not title II the so-called “Classics Act.” The Classics Act restored digital royalties to pre-1972 performers. Wyden was the lone senator who opposed the Classics Act.
A little background. In 2012 digital broadcasters in apparent coordination (Hello FTC? Is this thing on?) stopped paying royalties to performers who had the misfortune of recording before 1972. The justification the digital broadcasters used was a tortured interpretation of how the 1976 copyright act and a 1995 amendment interacted. In short an unintended highly questionable loophole.
However, the loophole provided a significant break to digital broadcasters. Some estimate the broadcasters got a 15% reduction in what they would have paid out to artists.
Why on earth would a “progressive” Senator support what is essentially a vast transfer of wealth from largely union performers to mostly right-wing billionaires?
(Update 10/30/2019): Now Wyden is opposing the CASE Act. A small claims copyright court that would allow small creators (i.e. Portland indie musicians, photographers and filmmakers) to do something about massive copyright infringement by major platforms. Without the CASE Act, the only option for small creators is to go into federal court. Not many of them have the $100,000 it takes to even mount a case. This has made it so only the biggest media companies can successfully enforce copyrights. The clear consequence is this is anti-competitive and has been driving the consolidation in the music business. Maybe that’s why Wyden opposes the Case Act. He never met a megacorp he didn’t like.
In this age of fake everything, Wyden is the fakest of all progressives.
Now consider Wyden represents the City of Portland and your head may begin to spin.
Portland has come to rival Nashville and Austin for its music economy. Portland produces groundbreaking new bands each year and is also home to many musical innovators from earlier generations. It’s also home to many labels and CD Baby the commercial heart of the DIY music industry. There are likely tens of thousands of folks employed by Portland’s music economic cluster.
On the other hand Silicon Valley has a cluster of Silicon Valley server farms out in the remote Eastern Oregon high desert. Oregon taxpayers subsidize these low employee operations (500 jobs statewide?) through tax subsidies and perhaps most importantly low-cost hydroelectric power from the Columbia River.
Every subsidized low-cost megawatt the Silicon Valley lampreys suck-up is a megawatt that Oregon taxpayers have to source from higher cost higher carbon sources. Does that sound like the kind of policy that benefits Wyden’s constituents or Silicon Valley billionaires?
Oregonians deserve better than the false progressive Senator Wyden.
It’s not too early to think about primarying the Silicon Valley apparatchik. 2022 is not far away. And who knows it could be even sooner…No one has ever really delved into the curious story that Wyden’s son started a “hedge fund” in his father’s Washington DC basement. Who gave junior the startup money? He started the fund immediately after leaving a financial firm owned by one of Wyden’s most prominent donors. Hmm. That smell like pay to play to you? It’s strange enough it deserves some real scrutiny.
Congratulations to Sen Ron Wyden: 2019 Artist Enemy #3
We just learned this morning that Ron Wyden has put a hold on the CASE Act. It passed the house 410-6 but one Senator, a fairly sleazy one at that is gonna block a bill that would level playing field between silicon valley and small and independent musicians. the Senator with all those Portland ratepayer-subsidized Google server farms out in the high desert is gonna screw over all those Portland musicians again. Imagine that? Essentially making musicians subsidize Google not once but twice. Maybe that’s the way the anti-worker “Nike progressive” rolls but Oregon deserves better. Symbolic lip service to progressive causes but when it comes to the little guy? He’s firmly on the side of big business. Wyden has voted 100% with Google on internet policy. He is so pro-Silicon Valley he was the only Senator to vote against the FOSTA the anti-internet sex trafficking bill. Who the hell is doesn’t want to stop internet sex trafficking? Wyden. The guy is a bum. We are going re-run articles all this week detailing his sleazy corporate connections. Let’s start with who would make a better senator to represent Oregon.
6 Oregon Musicians That Would Make a Better Senator than Ron Wyden (And never had hedge fund in the basement).
Reprint 7 22 2018
Senator Ron Wyden doesn’t seem to understand that he represents a state with a very dynamic music scene. Over the last two decades Portland, the state’s largest city has become arguably the most dynamic music scene in the entire country. Yet Wyden has twice now thrown songwriters and performers under the bus, in order to protect a few tech billionaires from California. Yes these billionaires happen to have server farms out in eastern Oregon but these server farms at most employ a few hundred folks. Portland OR alone has thousands of professional musicians.
But it’s not just that Wyden doesn’t understand this, or has forgotten about those musicians in his state. He is actively hostile to their interests. Check it.
First in 2013 Wyden introduced the Orwellian “Internet Radio Fairness Act.” This bill would have created “fairness” for internet radio by slashing performer and songwriter pay as much as 70%. It also placed extraordinary restraints on speech of songwriters and performers, threatening prosecution for any group of songwriters or performers that discussed digital licenses and rates with their colleagues. The language of the bill was so broad and regressive it would have punished members of a single band that collectively blogged negatively about bad digital licensing deals. We are not making this up. The congressional research office eventually stepped in because the bill was so bad. Under withering criticism Wyden abandoned the bill.
But now Wyden has taken it up a notch. According to rules of the US Senate a single senator can put a hold on a bill. Despite the fact the House of Representatives passed the Music Modernization Act 415-0 Wyden intends to put a hold on a consensus bill. What an egomaniac. To put this into perspective the Dec 8th 1941 declaration of war on Japan and Germany was not unanimous. The Music Modernization Act enjoys more consensus than WWII! But Wyden intends to stand in the way.
But it’s even worse. When you drill down into Wyden objects to what is perhaps the least controversial part of the bill. The part of the bill that extends digital royalties to performers that recorded before 1972. This “pre-1972 loophole” in digital royalties is pretty much a copyright law typo. Surely the authors of the 1995 act that formalized digital public performance royalties did not intend to exclude pre-1972 performers. Indeed until 2013 most digital services paid royalties to pre-1972 performers. It wasn’t until Wyden’s first bill was shot down that Pandora, Sirius and other digital services began to aggressively exploit the loophole. Coincidence? Maybe. But I think not.
This is skullduggery of the highest order. Now consider who is one of the biggest beneficiaries of this loophole: Google/YouTube.
As previously noted Google along with all the other Silicon Valley firms have large server farms out in Eastern Oregon. And Wyden is eyeball deep in Silicon Valley politics.
As a recent commenter on this blog put it:
Ron Wyden, got his political start as a fairly conservative Democrat, which was necessary for his initial success because outside the Portland metropolitan area (and Eugene of course), the other two-thirds of Oregon’s population is very conservative.
Oregon has always had a boom or bust economy based on agriculture or dwindling natural resources, and pretty much every politician of every skunk stripe collectively bent over and grabbed ankles when the tech sector unbelted and began plowing the “Silicon Forest” with their plastic thingies and their ones and zeros. As you might expect, Google now owns Oregon. QED.
Pretty much all you need to know about Wyden is that he is on the Intelligence Committee. You don’t even approach that gig unless you have been drinking the Kool-Aid for donkey’s years. – Ron or Donna
And indeed our reader is spot on. Oregon politicians have been especially pliant when it comes to Google. The Oregonian estimates that Oregon politicians have given Google tax breaks for a single data center in The Dalles worth $100 million dollars. The data center has less than 200 employees. That works out to $500,000 a job. On top of that the data centers suck down most of the cheap hydro power that should arguably go to rate payers in Oregon. Seems pretty weird, right? Oregon enriching a bunch of California based companies for a handful of jobs? Someone somewhere must be making a lot of money on the deal.
Also consider this. Who do you think has oversight over those federal hydropower rates? The rates the operators of those data centers pay? If you guessed The Senate Committee on Energy and Natural Resources you would be correct. And who might be on that committee? Ron Wyden.
The presence of these large data centers is a net negative to the citizens of Oregon. So why does Ron Wyden feel obliged to do the bidding of Google on a music bill? Whether it’s ignorance or greed the result is the same. Ron Wyden sucks at representing citizens of Oregon. Sure he pleases many Oregon residents when he goes after the trump administration, but surely there are plenty of other progressive democratic politicians in Oregon that would do the same without icky pro-Google Silicon Valley shillery.
Then there is also the matter of the senators adult son, Andrew Wyden, and his “hedge fund” ADW Capital. The one man hedge fund was started it in the Senators Washington DC townhouse in 2011. Andrew Wyden had just graduated from college and someone gave him 3 million dollars to start a basement hedge fund. If the initial 3 million in funds came from campaign donors (specifically longtime Wyden supporter D. E. Shaw) or other investors with business before the senate you could be looking at an FBI investigation.
Even if the senator is clean, the optics are horrible. And it’s extremely poor judgement on the part of the senator. If there turns out to be anything to this story it’s entirely possible that Oregon may be looking for a new Senator before his term is up.
So it’s not a joke to start considering who might replace Wyden in the Senate. Given the growing importance of music to the Oregon economy (surely music is responsible for 100 times the number of jobs that Google data centers created) I humbly suggest Oregon voters look at some smart entrepreneurial musicians to replace Wyden. I believe there are probably a number of Oregon musicians that would do a much better job of representing Oregon in the US Senate.
I asked this question on twitter and here are some of the suggestions:
Well the entire band can’t be Senator, but I suppose Chris like most people is thinking of Carrie Brownstein for her role in Portlandia. Face and name recognition. We have to assume the campaign videos would be funny. Does she still live in Portland? Well regardless state residency didn’t stop Cheney from running for Vice President. Regardless I wouldn’t discount Drummer Janet Weiss (also of Quasi). Secret weapon. Corin Tucker also a solid choice.
Again not sure he’s in Portland proper. I believe he still lives just across the state line in Washington. I always see him in shows in Portland so he’s certainly close. Again Cheney demonstrated it’s easy enough to move. And Krist does have a keen interest in politics. In 2004 considered a run for Lt Governor of Washington. He is also the author of Of Grunge and Government: Let’s Fix This Broken Democracy.
Larry Crane, musician, engineer, producer, music entrepreneur and Tape Op magazine editor. This is my personal vote. Anyone that has had any experience in the studio knows that producing and engineering requires great diplomatic skills. Producing and engineering of a record requires forging grand compromises between many strong personalities and interest groups: labels, managers, and the performers themselves who are often internally conflicted. It’s a tough job Larry but your state needs you!
I always forget Patterson Hood lives in Portland now. Hood hails from the deep red state of Alabama. Yet he is a strong democrat. Patterson and his band Drive-by Truckers have deftly managed to embrace progressive causes (r.g. Black Lives Matter) w/o alienating the portion of their audience that identifies with conservatives. Who else to better bridge the divide between Portland’s urban population and deep red rural parts of the state. Also he is an extremely humble guy and would never even consider a senate run. All the more reason to send Mr. Hood to Washington.
We’ve been covering all week two Google-funded astroturfs, Public Knowledge and EFF, and their efforts to spam The Senate with automated tweets, emails, comments, and phone calls in hopes of blocking the CASE Act (voluntary small claims court for copyright).
As we dug into this, we started focusing on Public Knowledge and their tweetbot. While experimenting with the tweetbot, I discovered it took total control of my twitter account. Like completely. It basically makes your twitter account part of a botnet that is controlled by Public Knowledge or their agent Phone2Action. Look at the permissions it asks for:
But even stranger (or maybe not), shortly after authorizing permissions, I noticed unfamiliar devices logging into my account.
See screengrab above. I was nowhere near Scaggsville MD. I don’t know that it was Phone2Action, but I’ve never seen this sort of activity on my accounts. I’m pretty security conscious.
Particularly funny (or outrageous) since besides being copyright skeptics Public Knowledge claim to be privacy advocates. That is obviously bullshit.
Phone2Action is the maker of the above tweetbot. Phone2Action website says:
“In the United States, everyone’s voice counts. The opportunity for civil discourse is what makes our country a model for democracies everywhere. When we have problems, we don’t look the other way—we try to solve them. We built Phone2Action to empower the problem-solver and advocate that lives in everyone. Our tools amplify the voices of movements through technology in order to effect change.” (emphasis added)
Alright, that sounds neat. I mean amplify sounds like a little more than one vote per person, but otherwise it seems cool. Phone2 Action was founded by two democrats. One married to a former Obama administration official. The third founder seems to be independent but was in the US Digital Service an Obama initiative. So Phone2Action seems generally progressive outfit. And if you look at their webpage front and center they have some non-profits, corporate responsibility efforts, and commercial campaigns by vaguely virtuous companies like Patagonia and Ben and Jerry’s.
But if you dig a little deeper, into the case studies, it’s not long before you find Satan’s cobbler-er, oops I mean the Internet Association. There is also mention of a Net Neutrality campaign, although that seems to be downplayed. Probably because the net neutrality campaign devolved into the mother of all bot-fueled fake public comment disasters. 22 million comments, with reports of half of them being fake. From an NPR article:
The Pew Research Center took a close look at the comments. Associate Director Aaron Smith said several things popped out. Maybe the biggest, 94 percent of the comments “were submitted multiple times, and in some cases those comments were submitted many hundreds of thousands of times.”
The Net Neutrality fake comment scandal has even become the focus of a US Senate investigations. See here.
Is this starting sound like the massive spamming of the EU Parliament that happened with the EU Copyright Directive (N-Square, SaveYourInternet.eu, EDRi, Open Media and New/Mode)? Yes, and we will come back to that probably later this week. Something else caught my eye. This article by the Consumer Technology Association (aka CEA) Chairman Gary Shapiro.
Whoa. Shapiro is basically bragging about the CEA and Phone2Action together breaking a union work slowdown by the longshoremen. Have you ever met a longshoreman? While the CEA is your usual anti-worker corporate trade group, it seems pretty weird that Phone2Action with its progressive Obama credentials would get involved in strikebreaking.
Now check this out:
“CEA, with support from over 200,000 Innovation Movement members who help us advocate for smart tech policies and several key industry stakeholders, effectively shared the urgency of the West Coast ports crisis via social media, asking Congress and the White House to help keep our ports open for business,” CEA CEO and President, Gary Shapiro, said.
This is a picture of Gary Shapiro. You think this dude leads an auxiliary of a boring-ass trade group that has 200,000 active members? This guy is clearly not a whirling dervish of raw charisma. 200,000 members? Yeah right. And the Innovation Movement? I didn’t believe it so I looked it up. Well there once was a website for the Innovation movement.
But as far as I can tell by 2015, at the time of the longshoreman slowdown, the website hadn’t been active for two years. By 2017 the site redirected to a domain reseller. I know a thing or two about grassroots organizing, and if you have 200,000 active members helping you lobby Congress you don’t let the website domain around which you organize expire. That is seriously valuable real estate. Keep your members. Keep them engaged.
So clearly I don’t think they ever had 200,000 members. My hunch is that they had a few thousand members and then a bunch of fake email addresses and sock puppet social media accounts. I could be wrong. I’m not saying CEA or Shapiro had any idea they were fake… well maybe I am saying that, otherwise, why would he let the domain expire? Aw shit, I don’t know. Politics plus the internet is such a shitshow. Anything seems possible now. But there is no way there were 200,000 real members.
Just let me say this. I hope I’m wrong. Cause otherwise Shapiro and Phone2Action ran a spam op and tricked The President of The United States into intervening in a labor dispute. I hope I’m wrong. I don’t want to believe the worst about our democracy. Cause if I’m right we are screwed.