Does Science Fiction Writer and EFF “Special Advisor” Cory Doctorow Profit from Corporate Music Piracy?

 

 

Cyber Fiction: Cory Doctorow and the rest of EFF are genuinely fighting for the rights of individuals, not to protect the profits of their corporate Silicon Valley benefactors.  Photo Author and Attribution  Ed Schipul under Creative Commons Share Alike 2.0 License.  

Cory Doctorow the Canadian science fiction writer, Boing Boing editor, and creepy grown up Disneyland enthusiast, is also a special advisor to the Google funded Electronic Frontier Foundation (the world’s first “progressive” anti-civil rights organization).   One of our colleagues recently noticed this product for sale in the Boing Boing store.  For $9.99 Boing Boing sells software it claims can rip ANY YouTube video presumably even illegally uploaded songs and movies from YouTube.  Yeah sure, we know there are plenty of sketchy websites that allow you to do similar things (and also infect your computer with malware).  But generally these sleazy websites don’t add insult to injury by charging a fee and NOT sharing it with the creators of the work.  Since Boing Boing sells this software in its store it is fair to assume that Boing Boing and hence Doctorow eventually get a cut.  Creators of the music or videos being downloaded?  Nada.

There is also the question of whether the software being sold by Boing Boing simply “records” the YouTube streams (an important legal distinction).   Over the last couple of years we have tested many of the so called “YouTube to MP3 converters “and they appear to simply  host the mp3s/mp4s  themselves, making these services indistinguishable from full blown illegal cyberlocker sites like Hotfile or Megaupload  The conversion from YouTube is completely fake, simply a ruse to hide the fact it’s really a cyberlocker.  The YouTube URL is only used to identify the track and seems intended to act as a MacGuffin for journalists. Reports show the Boing Boing software seems to make the conversion fairly quickly. This is pure speculation but I would wager at least even odds that this software sold by Boing Boing hosts or caches the most popular content on a “friendly” or commercially related server.   But why speculate.  I know we have enough tech savvy  readers out there to test this software.   Is a $100 bounty enough?

It’s bad enough that Google/Youtube (the 2nd wealthiest corporation on the planet” has built a music streaming service on illegally uploaded music. But now we have a Google lapdog seemingly profiting from this decidedly non-progressive activity. You’d think it would bother someone like Doctorow who left the UK simply because a Tory was elected.  But then again aren’t all progressives completely full of shit these days? The old cliche was conservatives shilling for big banks and tobacco companies, now it is the modern progressive shilling for technology companies. Anyway what’s the difference?  It’s the same old crony capitalist pay to play racket, they should all be taken down.

The fact that Doctorow continually dresses up his activities as progressive, vaguely revolutionary or for the benefit of “the public” only makes him more contemptible.

Here’s the software that Boing Boing is gleefully pitching

Screen Shot 2017-01-02 at 7.40.30 PM.png

Here is how it’s described on the Boing Boing website:

“YouTube is a massive video and music library, but its only significant flaw is that you need internet access to use it. Well, not anymore. With Softorino YouTube Converter, you can download and import YouTube videos directly into your iTunes, Mac or iPhone. No Wi-Fi? No problem. It’s as easy as copy and download, and all your favorite content will be readily available on your computer or mobile device in no time.

Import files to iTunes as MP3, MP4, or M4A w/o losing quality
Get automatic clipboard monitoring so you don’t have to paste a link–just copy it
Download from Facebook, Vimeo, Instagram, YouTube & more
Skip the ads when you watch offline
Transfer videos & music to your iPhone, iPad or iPod Touch w/ ease
Watch or listen in high quality 4k, 1080p HD video & 192kb/s music”

 

 

GhostShip: Mourn the Dead: Fight Like Hell For The Living- Guest Post by Marc Ribot

Marc Ribot is an American Musician a member of NYC artists rights group MusiciansACTION http://musiciansaction.org/.   Photo by Webb Traverse at English Wikipedia (Transferred from en.wikipedia to Commons.) [Public domain], via Wikimedia Commons

 

The initial horror evoked by Oakland’s GhostShip fire is now turning into self questioning and anger at those who placed the victims in harms way.

Yes, there will be individuals —landlords, inspectors, event organizers —held to account.

But the political context of this tragedy is that artists — not only musicians, but graphic artists, photographers and other content creators–have been placed in a condition of risk and precarity by Silicon Valley’s trashing of the copyright laws— a mass expropriation of value which turned what was once an important source of income into an expense for working artists.

Yes, marginal, new, and unsuccessful artists have long been precarious. But Silicon Valley’s implementation of a business model earning itself hundreds of billions via the ad based exploitation of copyright infringing work has marginalized an increasingly large number of working “content creators”, driving many into substandard housing, work spaces, and multiple jobs; and out of health insurance, safe housing, and sleep.

The geographically marginal location of the GhostShip lofts— in Oakland’s industrial zone, far from the nightlife centers of SF, is not only a metaphor, but a sign and

symptom of a wider and deeper phenomenon: the economic marginalization of working artists.

The GhostShip’s Oakland location — right across the Bay from the SV corporations which drove them into fatal precarity — is also more than metaphor. These artists were driven out of less precarious situations by rent increases. San Franscisco real estate has gone through the ceiling as a direct result of the huge wealth of Silicon Valley corporate execs, investors, financiers, and employees.

Rage at this Silicon Valley driven gentrification has been local news for almost a decade. Conflict between local residents and SV employees broke into violence over Google’s usage of public bus stops for their private busses. Leftists may not consider the local residents’ choice of an epithet (“dot.communist”) the ideal metaphor for evil, but it was meant to express the contempt Bay Area residents felt for the tech industry yuppies who drove them out of their homes and work places.

Working artists were by no means the only San Franciscans displaced. But added to the injury of artist displacement was the insulting knowledge that the money enabling their displacers had been generated by their own labor, expropriated via ad based profits on infringing files of their own work, files often posted and used without their consent or remuneration.

Silicon Valley propaganda outlets like the Google funded “Electronic Frontier Foundation” have long taken the position that the 60% collapse of the record industry caused by infringement was only hurting rich major record company exec’s, that somehow you could suck 7 billion a year out of an industry without hurting the working artists — and engineers, and indie label staff, and photographers/graphic artists/designers etc — who worked with them and lived off the sales of their music.

So now the precarity caused by these policies has hurt real people. And the only thing unusual about those hurt or killed in the GhostShip fire was that, unlike the hundreds of thousands of individual, isolated disasters caused by structural precarity, this hurt made national headlines.

Our personal disasters —the broken relationships of those working two jobs, or forced onto the road because that’s all that’s left, the deferment or avoidance of family due to poverty….the dislocations, evictions, foreclosures — will never be on CNN or Fox News. But we all know people, or are people, who have suffered them.

“Precarity” describes the social dimension of supposedly “natural” disasters: the increased risk of death, injury, and misery for those pushed to the social edge. The cause of death may be attributed to natural phenomena: fire, flood, earthquake. But the degree of risk is created

socially: politically, legally, economically. San Fransisco’s “Loma Prieta” earthquake of 1989 registered 6.9 on the richter scale and resulted in 63 deaths. The 2010 Haitian earthquake was a similar magnitude (7.0), but resulted in over 160,000 deaths. The earthquake didn’t kill: substandard housing did. It’s poverty, not nature, that places people in substandard housing. And it’s the lack of political rights and power that condemn populations to poverty.

The precarity pushing ‘content creators” to the social edge is entirely political, caused not by digital technology itself, but by:

1. the special privilege “Safe Harbor” clauses of the Digital Millennium Copyright Act of 1997-98, which prevent artists from seeking damages from online corporations, even those, like YouTube, whose business model is based on the mass infringement of artists rights.

2. The 2ndary boycott provision of the Taft Hartley law which limits the target of “collective economic (ie: union) action” to the immediate direct employer (meaning that almost all corporate profiteering from ‘content’ is off limits to labor action by almost all producers of content).

Many people know that Taylor Swift withdrew her material from Spotify to protest its low rates of pay. Fewer

know that if Ms. Swift had asked other artists to join her, or the public to boycott, she could have been sued for everything she ever made or ever will make. And if a union had made that call on her behalf, they could have seen all their assets, including pension funds, seized, and their officers arrested and placed under gag order.

3. Reagan era court decisions limiting the scope of anti-trust law, even when corporations are clearly using their “monopsony” power to crush producers.

Rip, Mix, Burn

The february 2003 edition of Wired Magazine celebrated the death of the recording industry with a cover (referring to Charles C Mann’s accompanying “The Year The Music Dies” article) consisting of a famous graphic image of the Hindenburg disaster, in which hundreds of passengers were burnt to death in the ill-fated zepellin’s launching.*

This graphic image was accompanied by the text “Rip, Mix, Burn”, a slogan borrowed from an Apple campaign to both advertise their product as a tool for copyright infringement and rationalize the harm done to artists by presenting a for profit corporate campaign as anti-corporate direct action. Apple profited greatly from sales to consumers using their product precisely as suggested.

Wired’s advertisers are often tech corporations reaping similar profits.

The clear implication of Wired’s gleeful use of the Hindenberg disaster photo… is now obscene.

We now know that “the music” didn’t die in 2003. Musicians still make music (using similar technological tools to those in use since the 90’s). People still listen to the music musicians make. Their listening is still mediated by corporations, and still produces (now more than ever) profits for those corporations. Only now those profits aren’t shared by the people who produce them. This isn’t ‘creative destruction’, or ‘technological unemployment’: its exploitation pure and simple.

Thanks to the Safe Harbor clause of the Digital Millennium Copyright Act, and the 2ndary boycott provision of the Taft Hartley Law, content creators have been prevented from fighting this exploitation individually and collectively.

Denied legal means of fighting back, politically swamped by the massive lobbying power and social media manipulation of Silicon Valley corporations, artists have been pushed into economic precarity and risk.

As is so often the case with the violation of rights, violence against the body is the inevitable consequence.

M. Ribot

The author is a member of NYC artists rights group MusiciansACTION http://musiciansaction.org/.

As We Predicted: Outlaw Librarian of Congress Violates Obama Administration Rules On Online Polls for Policymaking

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Email from Library of Congress announcing online Survey Monkey Poll (Research.net is owned by Survey Monkey).   I was also able to submit a comment by “tunneling” to a machine with a non-US IP address. The comment above is a parody comment not my actual comment.   

December 16 the mother of all  “take out the trash Fridays”

Congress in recess?  Check.

Beginning of christmas holidays?  Check.

Therefore, Librarian of Congress releases policy-violating online poll to help select the new Register of Copyrights.

Why do these people make it so easy for us?  We timed our Trichordist stories for this week guessing the librarian would release the poll today.  Sometimes it sucks to be right.  But we were right.

So why did Librarian of Congress Dr Hayden (and  former Soros/Open Society Foundation board member) release the poll today when no one in DC is paying attention?

Violates Obama administration rules, guidance and federal law?

Cass Sunstein, then the Administrator of the Obama Office of Management and Budget, issued a memo in 2010 to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies.  He says this:

“[b]ecause, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning”

While the memo was widely seen as a “go ahead” to use social media for some purposes, the memo sternly reminds all agency heads that existing law is still in effect (footnote 2):

“2 Nothing in this Memorandum should be read to alter agency obligations under existing law, including the Administrative Procedure Act, the Privacy Act, and the Federal Records Act. Agencies should continue to comply with all applicable OMB memoranda when using web-based technologies, including but not limited to M-05-04, “Policies for Federal Agency Public Websites,” Information Quality Act; OMB Circular A-130 – Management of Federal Information Resources; Clinger-Cohen Act of 1996; and the E-Government Act of 2002. OMB also advises agencies to consider resource limitations, per 5 C.F.R. 1320.9(h), in the use of social media and web-based interactive technologies. In these and other areas, agencies shall comply with all applicable laws, regulations, and policies that pertain to privacy.
3 44 U.S.C. § 3502(3)(A).
4 See 44 U.S.C. § 3501.
5 5 C.F.R. 1320.3(h).”

Frankly this is all over my head, but I’m pretty sure if someone like Cass Sunstein says this is probably bad policy, I bet it’s actually illegal.

Recent history of hacked online polling and policy making.

In 2009 a Canadian Government consultation on copyright was hijacked.  Chris Castle detailed the entire fiasco in these two blogs.

100,000 Voters Who Don’t Exist

Canadians Slimed as Copyright Consultation Concludes

Even one of the shadowy organizations trying to hijack -er I mean influence- the consultation appeared to screw it all up, as the reliably pro-technology/pro-google Geist (Canada’s Lessig) was outraged that not all robotically filed comments were filed:

http://www.cbc.ca/news/technology/ottawa-denies-altering-copyright-submissions-1.860196

Earlier this year the US Copyright office public comment on the DMCA Safe Harbor was hacked by Fight For The Future (AKA Center for Rights in Action)  a group then run by Google operative Marvin Ammori and “progressive” NY Gubernatorial candidate Zephyr Teachout.   Fight For the Future posted EXACTLY 86,000 identical comments that were supposed to have come from real individuals.  They did this via a robot web form on their own website that then posted the comments to the Regulations.gov website.   Exactly 86,000. Does that seem curious to anyone? Not 86,017,  not 85,997 but exactly 86,000.  They even bragged to pro-piracy blog Torrent Freak that they had taken down a US government website.  How is that not an illegal DoS attack?  Naturally no one in the Obama administration bothered to look into what appeared to be a cyber attack by a 501 (C) 4 tax exempt non-profit on a government website.  See their tax form center-for-rights-in-action-990-fy14.    I’m busy maybe someone can ask the IRS about this?    Or AG State of Massachusetts about tax exempt status of organizations that commit possible cyber crimes?

If the past actions by technology astroturf organizations are any guide, we can expect this web form to be spammed and hijacked in a similar way.

See more of our coverage of Fight For The Future here:

https://thetrichordist.com/2016/04/19/exactly-86000-identical-comments-the-illegal-comment-bombing-of-dmca-notice-takedown-review-by-google-proxy-fight-for-the-future/

https://thetrichordist.com/2016/04/03/hacking-democracy-googleyoutube-proxy-group-fight-for-the-future-crashes-us-copyright-office-website-during-crucial-comment-period/

https://thetrichordist.com/2016/05/02/astroturf-fight-for-the-future-received-almost-100k-from-company-based-in-mini-industrial-park/

(this one above really begs the question as to whether this organization deserves tax exempt status).

https://thetrichordist.com/2016/05/12/uncivil-rights-astroturf-organization-protesting-copyright-hearings-organized-mass-copyright-infringement-campaign-against-mlk-estate/

 

Also there is some nice additional coverage from Music Tech Policy over here

The Voting Dead: White House memo questions if anonymous comments can be used in making policy?

 

Trichordist Poll Results: New Register of Copyrights Should be Winged, Have Tooth Whistle, Launch Deep Sea Submersibles

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Trichordist readers dutifully demonstrated what happens when you ask the internet to help LOC  chose a new Register of Copyrights. 

A couple of days ago we reported that Dr Hayden the new Librarian of Congress is evidently planning on using an online Survey Monkey poll to determine the “attributes” of the new Register of Copyrights.  We need a new Register of Copyrights because Dr Hayden in an apparent act of retaliatory constructive termination “reassigned” the last register to duties that included the Library gift shop, no joke.   We pointed out how this went terribly wrong when the UK asked the internet to name their new royal research vessel.   The internet named the new ship “RRS Boaty McBoatface.”

We conducted a similar poll and as predicted ended up with similar results.  According to Trichordist readers the three top attributes of a new Register of Copyrights?

  1. Winged. Scales or Feathers. Doesn’t have to be capable of sustained flight but should be able to flap themselves off the ground for a few seconds at a time.
  2. Has a crane capable of launching deep sea submersibles.
  3. Has a faint tooth whistle when speaking.  

But in all seriousness, we believe that selecting a new Register of Copyrights in this manner is not only reckless but likely be prone to fraud and abuse. Further it may very well go against US government rules on online polling and public comments.   Congress should look into this matter.

 

 

 

Librarian of Congress Names Boaty McBoatface New Register of Copyrights

screen-shot-2016-12-13-at-3-41-33-pm

 

Well not really.   But it might as well be Boaty McBoatface.  Word on the street is the Librarian of Congress intends to use an online Survey Monkey poll to select the “attributes” of a new Register of Copyright.  Perhaps one of the attributes of the new Register of Copyright should be he/she is  named “Boaty McBoatface?”    If you don’t know the Boaty McBoatface reference you have to read this article about the UK’s ill-fated attempt to allow the internet to name a new royal research ship.  (Spoiler alert! The internet named it Boaty McBoatface!)

Using an online poll to select the “attributes” of the Register of Copyright is not just a bad idea, at the very least it likely violates US rules on federal agencies soliciting of public comments.

How does the librarian ensure that the poll won’t be robotically “comment bombed” by Fight For The Future  (FFTF) an astroturf group run by Google operative Marvin Ammori?   Cause that’s exactly what FFTF did when the Copyright Office used a web form to solicit comments on DMCA “takedown” reform earlier this year.  EXACTLy 86,000 identical comments were filed by Fight for the Future.  Read  here and here:

thetrichordist.com/…/exactly-86000-identical-comments-the-illegal-comment-bombing-of-dmca-notice-takedown-review-by-google-proxy-fight-for-the-future

thetrichordist.com/…/hacking-democracy-googleyoutube-proxy-group-fight-for-the-future-crashes-us-copyright-office-website-during-crucial-comment-period

How will the Librarian of Congress prevent multiple submissions even without the use of robots?

How will the Librarian of Congress verify that those making submissions are US citizens?

How do you keep it from getting hijacked by people with a sense of humor?

To illustrate this point here is our poll:

 

 

 

 

NY Times Op-Ed Blasts Political Favoritism in Antitrust Enforcement at Expense of Creators

In today’s NY Times,  Jon Taplin of USC notes the continuing lopsided antitrust enforcement by Obama administration (and previous Bush administration).   Traditional media companies (and also songwriters)  are held to much higher standards while politically connected Silicon Valley monopolies like Google and Facebook get a free pass.   This drives down revenues to creators while pumping billions of dollars into the pockets of the billionaires in Silicon Valley.   Facebook doesn’t even have  public performance licenses for music and is operating completely illegally in this regard. Meanwhile traditional media companies do have licenses.  It doesn’t get any more anti-competitive than that.  Does the DOJ antitrust division give a shit?  No.  This is blatant crony capitalism.  It is a form of economic warfare on creative workers and the middle class. If you scratch just below the surface you often find “revolving door” Silicon Valley lawyers leading the charge at DOJ.

“Google and Facebook can achieve huge net profit margins because they dominate the content made available on the web while making very little of it themselves. Instead, they both have built their advertising businesses as “free riders” on content made by others, some of it from Time Warner. The rise of these digital giants is directly connected to the fall of the creative industries of our country…

Every pirated music video or song posted on YouTube or Facebook robs the creators of income, and YouTube in particular is dominated by unlicensed content…

In the past decade, an enormous reallocation of revenue of perhaps $50 billion a year has taken place, with economic value moving from creators of content to owners of monopoly platforms.”

 

Dr. Hayden’s Library of Congress is Already Helping Big Tech Rip-off Creators Part 1: The Mass NOI Scam

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Why is the Librarian of Congress letting the “mass NOI” scam continue? Is it because she has deep connections to at least one of the companies that financially benefits from the scam?

The apparent constructive termination of Maria Pallante the Register of Copyrights by the brand new Librarian of Congress has gathered a fair amount of coverage.   Including a Wall Street Journal Op Ed that notes that it has the appearance of being orchestrated by Google.  But this may just be the tip of the iceberg.    We believe there are at least two major scandals brewing that could make the retaliatory constructive termination investigation look like a walk in the park.   And of course both of these scandals seem to involve the new librarian giving Silicon Valley interests a free ride at the expense of creators.  I’m gonna break this into two parts.   Today we will look at the first of the two.

Librarian allows mass NOI filings that let Amazon and Google avoid paying mechanical royalties to songwriters

This is a pretty complex issue, and if it weren’t for Chris Castle at Music Tech Solutions, it may have taken publishers and songwriters years (if ever) to discover that Amazon and Google were “black boxing” songwriting royalties.  Here’s how it works:

If a digital service like YouTube or Amazon wants to stream music they must serve an NOI or “Notice of Intent” indicating they are going to use the music.  This is so the service can prove it knows who they are supposed to pay, and it alerts the songwriter that a service is using their music so they will know to expect royalties. It is the law!  However if a service like YouTube can legitimately not locate a publisher and/or  songwriter they can pay a small fee and file an NOI notice with the Copyright Office.   This was never supposed to be the main way for streaming services to license  songs.  It was supposed to be a last resort.   Services were expected to use best efforts, show good faith and file these notices only when they really couldn’t find the publisher.

However recently Google and Amazon have been electronically filing gigabytes of these “writer unknown/not found” notices with the Copyright Office.  A cursory inspection reveals that many of these notices are well known songs by well known writers.   And it is highly likely that Google and Amazon were already paying these writers.   As an example  Google has filed a a notice for Surfer Girl, one of the most well known songs by Brian Wilson and The Beach Boys.

screen-shot-2016-09-24-at-1-29-35-am

Seriously?  Google Play surely has been paying songwriter royalties to Wilson’s publisher!  They shouldn’t be using this process to obtain a license. Why would they do this?

The first reason is it is a sleazy way of reducing expenses for Google and Amazon by essentially (illegally?) offloading the burden of accounting and tracking usage onto songwriters.   This is one of the richest companies on earth. They really need the money?  No.

The second reason is far more sinister.  Much the way Pandora and Sirius  tried to exploit a technical loophole in federal copyright law that allowed them to claim they didn’t have to pay royalties on pre-1972 recordings,  Google and Amazon may not be paying royalties on the songs for which they’ve issued these NOIs.  Here is what Chris Castle says about the NOI filings:

“I have been reliably informed that Google, Amazon and Music Reports among others are filing “millions” of “address unknown” NOIs with the Copyright Office based on a database that these companies are purchasing for tens of thousands of dollars from the Library of Congress (remember that the Copyright Office is under the jurisdiction of the Library of Congress). And by the way–once they file this NOI, they don’t pay royalties until the copyright owner can be identified in the records of the Copyright Office. Regardless of how easily the copyright owner could be found in other readily accessible databases.”

You get that?   Even if the writers can be identified in the BMI or ASCAP database, if for whatever reason the copyright office databases doesn’t show registration for the works,  Google and Amazon can stop paying.    Even if they already know the owner of the song!   What kind of people do this kind of shit?  While they may have some technical cover it’s just a jerk move.   To quote the Dude in  The Big Lebowski:

“You’re not wrong Walter, you’re just an asshole

So where does the Librarian of Congress fit in to all of this?

Well, frankly I missed this at first.   The Copyright office is housed within the Library of Congress, but it is NOT the Copyright Office that makes available the database that allows this ripoff, it’s actually the Library of Congress.   As Castle explains:

“If you have a recording you want to use, you need to clear the song. You take that song title from the recording and look it up in the Library of Congress data dump. If it’s not there, you file the “address unknown” NOI. Wash, rinse, repeat 1,000,000 times or more. See how that works?

As if by magic, you don’t have to pay mechanical royalties until the songwriter figures out what you have done by checking the NOI submissions page at the Copyright Office (assuming anyone knows it’s there or knows their song might be listed) and then…does what?”

Why is the Librarian of Congress letting this scam continue?   Is it because she has deep connections to at least one of the companies that financially benefits from the scam?

For full explanation read the 3 part  Music Tech Solutions blog on this topic.

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 1)

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 2)

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 3)

Academic Copyleftists Unintentionally Bolster Constructive Termination Charge in Firing of Register of Copyrights

<publicity images of Bridy and Butler”hot linked” from UVA and Stanford servers were deleted after Bridy and Butler expressed displeasure with the article and use of images. >

In defending the questionable dismissal of Maria Pallante as Register of Copyrights are copyleft academics Brandon Butler and Annemarie Bridy actually bolstering the case for action against Dr Hayden the Librarian of Congress for retaliatory constructive termination?

If you weren’t aware the newly appointed Librarian of Congress “reassigned” Maria Pallante the Register of Copyrights to a ambiguous new position that included “point of sales” at the Library gift shop.   This was a major screw up by the new Librarian Dr. Hayden. You see, if instead of firing someone for cause, you instead assign them to a new position well beneath their status, secretly hoping they will quit, this is generally termed “constructive termination.”  Constructive termination is a kind of wrongful termination and it is conceivable that the LOC could be investigated or hit with some sort of lawsuit.

Read more on the dismissal and Google angle here:

“Maria Pallante served for more than five years as the U.S. register of copyrights, a division of the Library of Congress. Two weeks ago Ms. Pallante was reshuffled to an advisory post for “digital strategy” she never sought, a job that included expanding the library gift shop. Three days later she resigned in a letter to the Librarian of Congress, Carla Hayden, who had been sworn in mere weeks earlier. What happened?”

@wsj: A Copyright Coup in Washington: The new Librarian of Congress ousts a federal copyright defender [Congress should investigate]

++++++++++++++++++++++++++++++++++++

Recently we noticed a couple of remarkably similar pieces defending the actions of Dr. Hayden.

One is from law professor Annemarie Bridy who is a fellow at the Google-funded Stanford Center for the Internet and Society.   Here she makes an “uniformed guess” as to why Hayden may have justly terminated Pallante.

“The new librarian of Congress, Carla Hayden, made a rational executive decision to protect the structural integrity of her organization in the face of a fairly brazen internal challenge…When she arrived on the job, she was confronted with the uncomfortable fact that the director of a major unit within her organization — the Copyright Office — was in the process of actively trying to withdraw that unit from the organization, of which it has been a part since 1897. During her tenure, Pallante made no secret of her displeasure at having the Copyright Office operate under the umbrella of the Library of Congress.”

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/31/murder-or-not-at-the-library-of-congress/

There are two major problems with Bridy’s statement.   First, if Hayden had cause to terminate Pallante why did she resort to reassigning her to a demeaning position?   Isn’t Bridy  actually bolstering the argument that this was constructive termination?  Second,  Bridy correctly notes that Pallante’s insubordination (proposal to move the Copyright Office out of Library of Congress) occurred under the previous Librarian of Congress, not under Hayden.  However Bridy conveniently ignores the fact that the proposal to move the Copyright Office out of the Library of Congress was floated with the blessing of the previous Librarian of Congress.   So Pallante wasn’t behaving in an insubordinate manner by doing this was she?   Her actions only became problematic ex post facto, that is when Dr Hayden arrived.   Bridy seems to imply that Hayden came into the library predisposed to firing Pallante who had done nothing wrong.  The problematic attitude and actions seems to rest with the Librarian of Congress not with Pallante.   Again this bolsters the case for constructive termination.

Then there is this guy:  Brandon Butler the Library of the University of Virginia First Director of Information Policy (hmm wonder who ponied up money for the creation of a new position?).  Butler was formerly at the Google-funded American Research Libraries.  Not necessarily all a bad bunch but definitely part of the “do gooder” copyleft that doesn’t seem to realize they are further enriching the $400 billion Google at the expense of creators by further expanding fair use. More troubling is Butler’s close association with Jonathan Band a lobbyist and a named member of the Oracle v. Google  Shill list. 

Some of Band’s humility seems to have worn off on young Brandon:

“We Jeffersonians know better. Copyright is not a natural right, entitled to protection at the expense of the public good.”

That’s right, this DC  elite now  a carpet bagging  UVA “Jeffersonian” has apparently been appointed to decide what is in the public interest and we lowly creators can just settle for table scraps.

And <sigh> once again: Jefferson has nothing to do with the copyright clause. James Madison and Charles Pinckney were the authors of the copyright clause.  Further the “committee on detail” were given a choice and selected Madison’s more “natural right” phrasing and not his more “government grant economic license” phrasing.  It’s not a perfect argument, but certainly one is on more stable ground when arguing for a “natural rights” interpretation of constitutional copyright than otherwise.  Mr Butler and his fellow Jeffersonians in fact do not “know better” and it’s a shame that an at best moderately successful indie rocker is the only one pointing this out to the UVA  Library Director of Information Policy.

Forget “fake news”  this is fake history with a corporate friendly agenda from a high ranking employee at one of our most revered public institutions. Who’s doing the hiring over there?

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Jefferson:  “Dude, I didn’t have shit to do with the copyright clause.  I was partying in France. Well, mostly France,  one time me and a bunch of other Cavaliers went up to The Bulldog in Amsterdam! I got so fucked up I barely remember anything. I may have like invented the Dutch beer bike! I was that wasted!”  

But I digress.  Let’s look at what our Google chum and  “Jeffersonian” young overlord has to say about the retaliatory constructive termination of Pallante:

“I don’t have access to any insider info, but I don’t think I need it: former Register Maria Pallante didn’t think she should be working for the Library. The Librarian apparently agreed. The end.”

http://thetaper.library.virginia.edu/2016/11/14/working-the-ref-on-copyright-office-reform.html

This is a remarkable simplification that leaves out (once again) the  fact that Pallante proposed moving the Copyright Office with the blessings of the former librarian.  But let’s take this statement at face value. Butler suggests that the Librarian knew that by reassigning Pallante from Copyright Office to working directly for the Librarian overseeing “point of sales” (and a questionably legal “orphan works” project) Pallante would resign.  In other words assigning Pallante directly to the library produced the intended resignation. That is the very definition of retaliatory constructive termination.  You sure you want to defend the Librarian in this manner?

For this reason The Judiciary Committee should investigate the reassignment.   And If I were Pallante I’d sue the librarian. But that’s just me.

(If you want to encourage the House Judiciary Subcommittee on Intellectual Property to look into this “retaliatory constructive termination”  matter that would be helpful.  I suggest a polite and respectful note to your favorite representative on the committee. Remember many of these representatives are quite sympathetic to authors. Contact here .   Also support their proposal to have congress not Librarian appoint the next Register).

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But before we wrap this up let’s just look at one more thing that our elite “Jeffersonian” seems to be directing at me. It reads as a threat:

“The Librarian of Congress is a tough lady; as her city erupted after the death of Freddie Gray, Hayden supported her staff’s impulse to open the doors of the Enoch Pratt Free Library to create a safe space for folks to gather, talk, and heal. She doesn’t seem like someone you can bully, and suggesting she’s a puppet for Google or George Soros or whomever is maybe not the way to her heart.She has an opportunity to choose a Register that serves all of us, and I hope she will. “

As far as I know, I’m the only one who has pointed out her connections to George Soros.  Her connections to Google are well known and well reported.   So I’m gonna assume this is directed at me.   So basically what Butler is saying is: If I don’t keep my mouth shut they are gonna appoint a register that will go against the rights of authors. So I’d like to address Butler directly.

Bring it on dude.

First, if an individual blogger calling a powerful public servant to account for actions that appear to benefit crony capitalists is a form of “bullying” then we should just wrap up this entire experiment in democracy and freedom of speech and go back to our caves.

Second, the tone is clearly authoritarian.  Last I checked the Librarian of Congress works for the people.  Now maybe you “Jeffersonians” haven’t noticed but the populace has taken a very Jacksonian turn. On both the left and the right.   They are in no mood to be governed by elites who hand down edicts that benefit a tax avoiding, privacy violating, government corrupting multibillion dollar corporation like Google. There are millions of songwriters and authors who feel quite Jacksonian at the moment. Maybe we should just get rid of the Library of Congress?  It seems like an anachronism in this day and age. Don’t we already have the internet?   Put those old maps in one of the Smithsonian buildings.

Third, the Librarian has already pissed off members of the Judiciary committee with her handling of  Pallante.  The  Librarian by law answers to congress.   So nothing would help the cause of authors more than the LOC appointing a copyleft register of copyrights.  Can you imagine how quickly we’d be able to get her in front of a committee or two?   Think those pesky FOIA laws are bad?  Wait until the US Congress starts subpoenaing the Librarian.  I’d suggest they start by looking for communications between Public Knowledge, DPLA, ARL, and members of Stanford’s Center for the Internet and Society.   All funded by Google. Even the UVA library may be implicated as there are connections galore between yourself  and Google. And you appear to be using UVA resources to advocate.  Hope your bosses are happy with you a year from now.

Fourth as we’ve noted elsewhere we believe that he Librarian is already in deep shit by allowing “mass NOI” filings for compulsory mechanical licenses. Too complicated to explain here but it looks wrong and possibly criminal.     Songwriters have awoken and are already suing the DOJ on constitutional and administrative grounds.  BMI’s first challenge to the Google inspired DOJ 100% licensing rule was successful.  Songwriters are pissed and there are millions of us. I can almost guarantee you that the mass NOI filings will meet a similar response.

So I’d  be careful about threatening a songwriter.  Songwriters can easily paralyze the LOC with just the the “mass NOI” issue. What if we went farther and  started a campaign asking authors, songwriters, film makers and fine artists to stop donating works to the LOC?   You know we creators give the LOC  those works right?  The LOC doesn’t have to pay for them.  We can certainly change that.

House Judiciary Committee Proposes Copyright Office Reform That Makes Register of Copyrights Independent of Library of Congress

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Faux revolutionaries like Harold “Che Guevara” Feld of the Google Funded  astroturf group Public Knowledge, appear to have overplayed their hands and given creators an independent Copyright Office. 

The House Judiciary Committee is for all practical purposes making the Copyright Office independent of the Library of Congress. We know the devil is in the details.  However this looks like  a victory for creators.   For this will make it that much harder for Google, Silicon Valley and the copyleft “useful idiots” at Ivy League institutions to install an anti-creator copyleft puppet as a Register of Copyrights.  We certainly won’t see a repeat of the retaliatory constructive termination of the Register of Copyrights by a bush league Librarian of Congress.   This is a complete repudiation of the Google/Soros backed Librarian of Congress.

We really should all thank Dr Hayden,  Google and their funded/directed astroturf groups like Public Knowledge,  DPLA, Stanford CIS and EFF for overplaying their hands.   In the end they have given the fired Register everything she wanted.

Read the proposal below.

copyright-reform

 

Good News: Sirius XM Settles Pre-1972 With Turtles! Bad News: Settlement Slashes Sound Recording Royalty 50%

Listen to Music Tech Policy podcast with Chris Castle and Henry Gradstein 

This is a complicated one.  And I honestly don’t know how I feel about this.  I’m glad to see the Turtles win this case. Glad to see that Sirius is willing to pay on these pre-1972 recording,  not just for past plays but also going forward.  This was a tough fight for the the Turtles and lead attorney Henry Gradstein.   It’s rare to find artists and attorneys willing to take on a 3-5 year lawsuit like this without the backing of a major law firm.    All should be commended for their persistence.

However,  I also find what appears to be some bad news here.  About 2/3 the way through the podcast Henry Gradstein states:

“Everyone is gonna do very well with this settlement, just do the math”

Well I did the math and this is not necessarily true. I mean it is true in the sense that something for pre-1972 recordings  is better than nothing.  But what the proposed settlement does is apply a pro rata royalty rate of 5.5% of revenue to pre 1972 masters.   This  is kind of screwed up because the compulsory rate set by the Copyright Royalty Board (CRB) for post 1972 masters is 11%.  Maybe I’m misunderstanding something but it looks like now we have  two different royalty rates for pre and post 1972 recordings with the pre-1972 artists getting a raw deal.  Further what happens when Sirius turns this in as “evidence” at the next CRB rate court hearing for satellite rates?  The CRB could slash EVERYONE’s rate, including post 1972 recording.

This is not far fetched.  We watched Pandora use this exact same tactic on the low wattage  bunch over at MERLIN.  Essentially MERLIN cut a deal with Pandora for lower royalty rates for their independent labels in exchange for more airplay.   Then Pandora took this deal to the CRB and used that as a marker and set all rights holders  rates lower.  If you do the math on the Merlin deal it will cost ALL rights holders nearly $1 billion over 5 years. Read here:

https://thetrichordist.com/2014/10/28/charles-caldas-of-merlin-independent-labels-minus-15-million-dollar-man/

https://thetrichordist.com/2016/03/16/billboard-finally-agrees-the-pandora-merlin-deal-will-cost-rights-holders-a-billion-dollars-in-soundexchange-royalties/

This is where i’m deeply conflicted.   If you are the Turtles and Gradstein you are truly in a David and Goliath fight.  A company like Sirius could simply delay, delay and delay until your law firm runs out of money.   Gradstein may have spent millions of dollars at this point.  The legal fees and research that goes into gathering evidence for a case like this is shocking.  I myself spent three years doing research for  a class action against a music service.   Legal fees were the tip of the iceberg.  Hypothetically if one suspected a streaming service of illegally (peer to peer) copying, streaming and displaying your work without authorization one might have to hire forensic computer experts to “packet log” and otherwise document unauthorized copying, performance and display of 100s of tracks in dozens of US states and foreign territories.  This is not cheap!

So if you consider the fact that Gradstein was looking at the possibility of never recouping the money he spent on this lawsuit you can see why he might accept a less than perfect deal for the pre-1972 recordings.   Yet the fact remains, we are left with the troubling situation that post 1972 masters are worth 11% of gross revenue,  but pre 1972 masters are worth 5.5%.   This will not stand, Sirius would be stupid to not to use this to argue for a royalty rate reduction for all master recordings at current CRB hearings.  Further they have the fiduciary responsibility to their share holders.

I have a bad feeling about this.