No More Poormouthing: Daniel Ek’s $310,000,000 Edifice Complex is Real, and Spotify’s PR Effluvia is Overflowing — Artist Rights Watch

By Chris Castle

As we reported February 9, Spotify is using hundreds of millions of its supernormal stock market riches to acquire naming rights to the Barcelona soccer team. The latest manifestation of Daniel Ek’s monopolist edifice complex was confirmed by Music Business World Wide and Variety among others, as well as Spotify itself. Barcelona’s iconic Camp Nou stadium (largest football stadium in Europe) will now be known as Spotify Camp Nou.

I assume that when Netflix finds out about this, there will be an epilogue to their Edward Bernays-style epic corporate biopic that will ignore the Rogan catastrophe but will include the Barcelona deal with a tight shot on the Spotify Camp Nou and probably a t-shirt vendor.

Let us take one clear message from this navel-gazing naming-rights deal to assuage Daniel Ek’s psyche after a losing bid to acquire the Arsenal football club and join the International League of Oligarchs. That message is that we don’t ever want to hear again about how Spotify “can’t make a profit” or “pays out too much money for music.” Daniel Ek–who controls the company through his super voting stock–has been running that diversion play for way too long and it’s just as much BS spewing from his mouth as it is any of the Silicon Valley oligarchs who whinge about how poor they are when they appear in court. 

Let us also agree that anyone who takes a royalty deal from any DSP that does not include an allocation for stock valuation is quite simply a rube who must be laughed at and mocked in the Spotify board room. This stock value allocation doesn’t require a grant of shares, but can include a dollar contribution that tracks share value and should be paid directly to both featured artists, session musicians and vocalists through their collective rights organizations on a nonrecoupment basis.

But don’t let me describe the bullshit, read it yourself directly from Spotify’s “Chief Freemium Business Officer” whatever the hell that means:

Statement of Alex Norström, Chief Freemium Business Officer, Spotify

“We could not be more thrilled to be partnering with FC Barcelona to bring the worlds of Music and Football together. From July, our collaboration will offer a global stage to Artists, Players and Fans at the newly-branded Spotify Camp Nou. We have always used our marketing investment to amplify Artists and this partnership will take this approach to a new scale. We’re excited to create new opportunities to connect with FC Barcelona’s worldwide fanbase.

Spotify’s mission is to unlock the potential of human creativity, supporting artists to make a living off their art and connecting with fans. We believe this partnership creates many opportunities to deliver on this mission in unique, imaginative, and impactful ways.”

Yes, that’s right. Daniel Ek’s edifice complex is all about unlocking the potential of human creativity because it’s all for the artists, don’t you know.

These people continue to embarrass themselves with their insufferable 1999er BS without realizing that any artist whose name shows up on a single Barcelona jersey will extract a considerable additional payment that the artist will keep and the labels won’t save Spotify on that one. Even if they do, there are only certain artists who don’t mind their names appearing on Barcelona jerseys–for a price. The overwhelming majority will not only not want it but are insulted that the “Chief Freemium Business Officer” is so ignorant of their name and likeness rights that he would even remotely float the idea that Spotify had the right to do anything like that level of grift.

If Mr. Freemium is really serious about “supporting artists to make a living off their art”, forego the edifice stroke and just pay that money directly to featured artists, session folk, and songwriters that have made him rich. Until then, he should just say you’re damn right we used the stockholders money to soothe Daniel Ek’s wounded ego because he desperately wants to be accepted by the Party of Davos and the League of Extraordinary Dweebs. Because we’ve already established what kind of people they are, it’s just a question of negotiating the price.

But let’s face it–what the monopolist really wants is a branded Monopoly game.

Songwriter Needs Help: GoFundMe Fundraiser for Hugh Prestwood and Judy Ahrens–ArtistRightsWatch

By Chris Castle

[This post first appeared on ArtistRightsWatch.]

If you ever thought we were too aggressive in our campaign to end the 15 year freeze on statutory royalties for physical, consider the situation of songwriter Hugh Prestwood and his wife, photojournalist Judy Ahrens. Songwriters and photographers are two occupations that are devastated by the digital blight that has visited apocalyptic devastation on creators.

As Hugh says in their GoFundMe page, his songwriting income was destroyed by the massive change in the economics of songwriting that split apart the album format with no commensurate increase in songwriter royalties. Songs became a major driver of wealth for hardware manufacturers and Internet providers (remember dancing cows chanting rip, mix, burn?) in the 2000s, and streaming drives wealth for catalogs and platforms. The doubling effect of Moore’s Law imposes a halving effect on creator royalties. Hugh and Judy are living proof of what happens to an aging population of creators who could not have possibly planned around the digital blight–other than learning to code, I guess.

Of course we want to encourage readers to contribute what you can to Hugh and Judy’s GoFundMe, but we also want to make a larger point. 

The Copyright Royalty Judges need to understand that there are real consequences to real people when they freeze mechanical royalties. While the Judges are not responsible for all the harms that accrue to songwriters in the rigged statutory licensing and royalty scheme, they do play a part and they can make a difference. Songwriters may not expect the Judges to fix their problems, but they do expect them not to make it worse. Freezing rates for 15 years makes it worse.

The Judges should also understand that they have an opportunity to do something to add fairness back into the system that the Judges effectively control. Creators like Hugh and Judy will never appear in their courtroom alongside the well-heeled lobbyists and lawyers who make millions off of the rate proceedings and the black box in what has become a laughingstock. 

Congress, too, needs to listen up. It is well past time for a songwriter advocate to be a permanent part of the Copyright Royalty Board proceedings for mechanical royalty rate settings. A songwriter advocate would speak for people like Hugh and Judy. As Linda said of Willie Lohman in Death of a Salesman, “Attention must be paid.” I’m not asking that songwriters should be able to overrule the lobbyists, although that’s not a bad idea.

But at least hear them out before they’re all gone.

@ashleyjanamusic’s Video Tells You All You Need to Know About Spotify’s Attitude Toward Artists

By Chris Castle

[This post first appeared on Artist Rights Watch]

Mansplaining, anyone? If you remember Spotify’s 2014 messaging debacle with Taylor Swift, we always suspected that the Spotify culture actually believed that artists should be grateful for whatever table scraps that Spotify’s ad-supported big pool model threw out to artists. They were only begrudgingly interested in converting free users to paid subscribers, which still pays artists nothing due to the big pool’s hyper-efficient market share revenue distribution model. 

And then there was another one of Spotify’s artist and label relations debacles with Epidemic Sound–Spotify’s answer to George Orwell’s “versificator” in the Music Department that produced “countless similar songs published for the benefit of the proles by a sub-section of the Music Department.”

The common threads of most of Spotify’s crazy wrong turns–and they are legion–is what they indicate: An incredible heartless arrogance and an utter failure to understand the business they are in. A business that ultimately turns on the artists and the songwriters. As long as there is an Apple Music and the other music streaming platforms, artists can simply walk across the street–which is why Taylor Swift could make Daniel Ek grovel like a little…well, let’s just leave it at grovel.

But–this long history of treating artists and especially songwriters poorly is what makes it so important to preserve Apple Music as a healthy competitor to Spotify and the only thing that stops Spotify from becoming a monopolist. A fact that seems entirely lost on their boy Rep. David Cicilline’s anti-Apple bill that “seems aimed directly at Apple and has Spotify’s litigation against Apple written all over it.” (Mr. Cicilline runs virtually unopposed in his Rhode Island elections, which if you know anything about Rhode Island politics is just the way the “Crimetown” machine likes it.)

Why are ostensibly smart people given to such arrogance? Mostly because they are rich and believe their own hype. But never has that reality been on such public display in all its putridness than in a truly unbelievable exchange at the Sync Summit in 2019 in New York between home town independent artist Ashley Jana and former Spotify engineer Jim Anderson who was being interviewed by Mark Freiser who runs that conference (and who doesn’t exactly come off like a prize puppy either). 

Ashley recorded the entire exchange in (what else) a YouTube video and Digital Music News reported on it recently. Here’s part of the exchange between Ashley and Mr. Anderson after Ashley had the temerity to bring up…money!

Jana: We’re not making any money off of the streams. And I know that you know this, and I’m not trying to put you on the spot. I’m just saying, one cent is really not even that much money if you add 2 million times .01, it’s still not that much. And if you would just consider —

Anderson: Oh, I’m going to go down this road, you know that.

Interviewer (Mark Frieser): This is really not a road we’ve talked about before, but I’m gonna let him do this —

Jana: Thank you again.

Anderson: Do you want me to go down this road? I’m gonna go down this road.

Frieser: Well, if you need to.

Anderson: Wait, do I go down the entitlement road now, or do I wait a minute?

Frieser: Well, you know what, I think you should do what you need to do.

Anderson: Should we do it now?

Frieser: Yeah, whatever you feel you need to do.

Anderson: So maybe I should go down the entitlement road now?  Or should I wait a few minutes?

Frieser: Do you want to wait a few minutes? Maybe take another question or two?

Anderson: [to the audience] Do you guys want to talk about entitlement now? Or do we talk about —

[Crowd voices interest in hearing the answer from Anderson]

Jana: I don’t think it’s entitlement to ask for normal rates, like before.

Anderson: Normal rates?

Jana: No, the idea is to make it a win-win situation for all parties.

Anderson: Okay, okay. So we should talk about entitlement. I mean, I have an issue with Taylor Swift’s comments. I have this issue with it, and we’ll call it entitlement. I mean, I consider myself an artist because I’m an inventor, okay? Now, I freely give away my patents for nothing. I never collect royalties on anything.

I think Taylor Swift doesn’t need .00001 more a stream. The problem is this: Spotify was created to solve a problem. The problem was this: piracy and music distribution. The problem was to get artists’ music out there. The problem was not to pay people money.

You really should listen to the entire video to really comprehend the arrogance dripping off of Mr. Anderson’s condescension.

@theBlakeMorgan Joins the List Opposing Frozen Mechanicals at the Copyright Royalty Board #irespectmusic

Blake Morgan songwriter, publisher, producer and label owner, two-time U.S. Supreme Court amicus, founder of the #irespectmusic campaign and relentless artist rights advocate joins the list opposing frozen mechanicals on vinyl and physical. “This is about so many things, but we simply must fight to keep digging out from a 68 year injustice. Big thanks to the inspirational Abby North for standing up for fairness and transparency!”

BlakeIRespectMusic

Against Frozen MechanicalsSupporting Frozen Mechanicals
Songwriters Guild of AmericaNational Music Publishers Association
Society of Composers and LyricistsNashville Songwriters Association International
Alliance for Women Film Composers 
Songwriters Association of Canada 
Screen Composers Guild of Canada 
Music Creators North America 
Music Answers 
Alliance of Latin American Composers & Authors 
Asia-Pacific Music Creators Alliance 
European Composers and Songwriters Alliance 
Pan African Composers and Songwriters Alliance 
North Music Group 
Blake Morgan 

Guest Post by @musictechsolve: SoundCloud Throws Down With Fan Powered Royalties and User-Centric

by Chris Castle from the MusicTechSolutions Blog

SoundCloud is the first music service to adopt a version of the ethical pool principles in a user-centric royalty model and I have to applaud the effort. It’s a really good first step.  “Fan Powered” royalties tries to connect the dots between what fans actually listen to and what fans actually pay for.

SC Fan Powered

Remember, the point of the ethical pool was to do something right now to remedy the hyper efficient marketshare distributions of the “big pool” or “market-centric” royalty allocation model that is pretty much the rule with digital music services (and to one degree or another with streaming mechanicals, too, although that’s a topic for another day). I acknowledged the transaction cost involved of truly changing the model which would require renegotiating all the big pool catalog licenses. The workaround in ethical pool is to allow those who want out to opt in to a user-centric model that would be separate from the big pool. This is a way to avoid the significant transaction costs of trying to change a system that is working well for some but not all artists on the service.

SoundCloud appears to have done something very similar. This accomplishes another goal of ethical pool which is to not upset the big pool model entirely as it is working for a lot of people and there’s a benefit to the entire industry that flows from that success. By adopting this middle-ground user centric model, SoundCloud is actually able to promote its user centric method as a competitive advantage to attract independent artists to sign up with the service. 

When you consider that the real choice of independent artists is to stream or not to stream because the revenues are microscopic but the cannibalization is gigantic, it is competition that is going to get the market forces aligned to produce real organic change. If services understand that offering at least some version of user centric is actually a competitive advantage, we may find that there’s greater uptake than anyone imagined.

It must also be said that fans will feel a lot better about SoundCloud’s model than the market-centric approach. It comes as abrupt news to fans that their royalty is being paid for music they don’t listen to–it’s only a matter of time until someone brings a false advertising claim against the services for failing to educate consumers about that one. And this is really the underlying issue with whatever flavor of user-centric you like: It’s better for the fans. As the erudite Martin Goldschmidt said in MusicAlly:

The bottom line, for me, is that user-centric is obviously a big win for the consumer. Long term, this will be a big win for artists, labels, distributors and DSPs. And we will all make more money.

Or as one fan said to me, I’m tired of my money funding crap. This is an isolated anecdote, but imagine what will happen if a million fans (or even 1,000) had this same reaction. All while the services are literally printing money.

As you can see from this comparison of Spotify share price to the FAANG stocks (Facebook, Amazon, Apple, Netflix and Google), Spotify has far, far outpaced the FAANG stocks in its relative growth rate. You can also see that the COVID pandemic that has decimated the artist community has been rocket fuel for Spotify’s riches and has made Daniel Ek a multi-multi billionaire all why paying out fractions of a penny to artists.

Spot 3-3-21

You can find the SoundCloud user centric royalty terms here. And bear in mind–we’re all better off if artists don’t feel they have to opt out of the entire streaming business in order to make a living. 

Bob Goodlatte: Supreme Court Could Take Intellectual Property Protections Back 50 Years in Google v. Oracle

[Really important opinion post by former House Judiciary Chairman Bob Goodlatte on Google’s attack on copyright in the vitally important Oracle case before the U.S. Supreme Court on Oct 7. Nice to see the Chairman back in the fight!]

Once or twice a generation, the Supreme Court agrees to hear a case so monumental, so groundbreaking in its potential to change the law, that it shapes Americans’ rights for years to come. These occasions are nothing short of paradigm-shifting, and the upcoming Supreme Court case Google v. Oracle is one of them.

On October 7, the Justices will hear oral arguments in this case, which many lawyers have referred to as the copyright case of the century. It will mark the first time the High Court rules on the copyrightability of software since Congress passed the Copyright Act of 1976—the law that governs the country’s entire copyright system. As such, it will set a crucial precedent for the future of copyright law and the United States’ economy in the digital age by either protecting IP from systematic domestic and foreign copying or offering these cases legal protection.

Google v. Oracle was initially filed nearly a decade ago after Google inquired about licensing portions of Oracle’s popular computer platform, Java, but elected to copy it instead. It then used the replicated code to build software for its mobile operating system, Android.

Read the post on Newsweek.

Guest Post: Copyright Office Regulates the MLC: Selected Public Comments on MLC Transparency: MediaNet

By Chris Castle

The wisest among us learn to use their portents well
There’s no need to hurry, it’s all downhill to hell.

From “Don’t Stand Still“, written by Original Snake Boy, performed by Guy Forsyth

The Copyright Office has solicited comments on the transparency of The MLC and received quite a few well-thought out comments (if I say so myself).  MediaNet

has raised some very interesting questions about the NMPA’s relationship with HFA and The MLC that many have questioned both in prior comments and in the many lawsuits against HFA clients like Spotify for its various licensing failures.  (Note that I don’t really fault HFA all that much because I think it really boils down to choices made by Spotify, another Internet company that is in a rush to enrich themselves at the expense  of songwriters and artists.  If you can fault HFA for one clear choice in that cluster, it’s that they didn’t resign from the job both during and after their ownership by NMPA and SESAC.  Maybe they got stock, too.)

MediaNet raises this interesting point:

In passing the MMA, Congress recognized that the party who controls the database may enjoy an economic advantage over others.9 Although not applicable to the MLC-HFA contract, The Federal Acquisition Regulation System, codified at 48 C.F.R. § 1.000 et seq., provides guidance regarding the principle cited by Congress under the MMA. For example, under FAR 9.505 a contracting officer cannot award a federal contract to a contractor where an organizational conflict of interest (or “OCI”) cannot be avoided or mitigated.

But here’s the clincher:

Applying the principles from the FAR, the arrangement between MLC and HFA raises a number of questions regarding the potential for unfair economic advantage to HFA as a consequence of its control over the operation and administration of the MLC database, including the following:

· Who owns the database, MLC or HFA? [The answer is neither]

· If HFA is terminated by MLC, does HFA own or have a claim to any proprietary or intellectual property rights in the database?

· Will HFA have access to “Confidential” or “Highly Confidential Information” (e.g., contract terms, payments and financial information) of music publishers or other similarly situated organizations such as PROs and administration service providers?

· Will HFA have access to the reporting of usage and required payments of the administrative assessment by significant nonblanket licensees (“SNBLs”) in the notices of nonblanket activity (“NNBAs”) required under the MMA?

· Sources suggest HFA may offer [an “ethical wall”] between its work on the MLC database and other work for third parties not using the blanket digital license, and an audit right to ensure HFA complies with this separation. Can HFA effectively separate such third party work from the database it administers for the MLC?

What are the remedies for non-compliance with such measures?

MediaNet respectfully requests that the Copyright Office, as part of its regulatory and oversight authority to ensure transparency, require that the agreements between MLC and all of its vendors be made publicly available, and with respect to the MLC agreement with HFA, if the information requested above is not disclosed in such agreement, require MLC and HFA to submit answers to the forgoing questions.

It should be obvious to everyone that there is an inherent conflict of interest between NMPA and HFA.  Insufficient care was taken at the Copyright Office and at The MLC to create systems to reduce the fact of this conflict negatively affecting the operations of The MLC which presents an opportunity to leave the bad days behind.  But that didn’t happen and here we are again.

But let’s not forget that The MLC is essentially a quasi-governmental organization and must comply with the Copyright Office’s oversight role despite the intimidation tactics.  And the Copyright Office is already looking a bit ragged around the edges from even the little connection to corrosion they’ve had to date.

For example, the Copyright Office announced that “the Butler Report” was commissioned by the Copyright Office to poll ex-US CMOs about their black box practices, knowledge which likely was common to everyone on The MLC’s board.  I must have missed where this work product was put out for bid, which leads me to think it was a single source consulting contract which is what they use to pave the road to hell when good intentions have supply chain disruptions.  Nothing against Susan Butler who is very competent and engaging, but I can think of several academics who would be better suited and would have been peer reviewed.  We can disagree about that, but why not have them submit proposals?  And also deliver all the work product that the taxpayer financed?

MediaNet raises many more excellent points about the inherent conflicts in the NMPA-The MLC-The HFA relationship and The Copyright Office’s designation process that are well worth reading.  You can find the full comment here.

And keep this in mind:

MLC executive Richard Thompson said at the Copyright Office panel on unclaimed royalties last December,[1] “[A] lot of the time since July has been spent working very closely with the staff at HFA and ConsenSys, really starting to nail down how all of this is going to work at the, you know, lowest operational level, all of the things that we need to work out.”  (Referencing the July 8, 2019 designation of The MLC as the MLC.)  Of course, The MLC didn’t announce the selection of HFA and ConsenSys until November 26, 2019. [2]

If The MLC was already working with HFA in July as Mr. Thompson says, why did they give the world the impression that they had not picked a vendor until November?

 

 

 

[1] Transcript, United States Copyright Office Unclaimed Royalties Study Kickoff Symposium (Dec. 6, 2019) at 28 ln 15.  (my emphasis)

[2] Tatania Cirisano, Mechanical Licensing Collective Selects Leadership, Partners for Copyright Database, Billboard (November 26, 2019).

 

Pledge Music Fiasco is Weirder Than You Think PT II: Who is behind Panama company Dolan Services Inc?

It’s been awfully quiet over at Pledge Music.  After declaring in May they were going into administration (UK equivalent of bankruptcy) I can find no reporting that indicates Pledge has even started the process.

Here is the current website notice. Completely lacking in specifics. Nothing about administration. Maybe this is normal. Maybe it’s not. I will say that publicly available documents indicate the financial history of Pledge Music is extraordinarily complex.  And if I were an administrator or creditor I would have a lot of questions. This could be the reason for the delay.

My colleague here at the Trichordist, David Lowery published this extensive overview of the Pledge Music fiasco two months ago. In the article he goes beyond the SEC charges against one of Pledge Music’s current owners and looks into the strange structure of the company; the multiple sub companies; the related entities; the offshore “panama papers” shell companies; and an SPIV (special purpose investment vehicle).  Quite a complex structure for a company of its size.

Go read the piece: The Pledge Music Fiasco is Weirder Than You Think.

I’ve been looking at another loose end with Pledge Music.  Who was the original investor that funded the company?  Here is an excerpt of an April 2015 interview that Benji Roger (Co-founder of Pledge Music) did with Andrew Warner of Mixergy.

Andrew: Where did you find the angel investors who funded this and allowed you to actually bring it to fruition.

Benji: It was somebody I knew. I basically pitched them the idea and I said, “Who should I send this to?” I sent out, I think, five business plans originally and I said, “Who would you send this to? Who do you think this is a good idea for?” One guy wrote back and he was like, “I love this. This reminds me of how Obama was elected.”

Andrew: Who was the guy?

Benji: He was just a friend. He’s a private guy. He doesn’t want to–

Andrew: He doesn’t want–can you tell us what he does for a living that he can suddenly do this? Is he a musician? Is he an entrepreneur?

Benji: No. He’s in a totally other space. He’s in a totally other space. He’s a very private lad. I don’t want to–

Andrew: But you can’t even say what his background is?

Benji: No. He went to business school.

Andrew: That’s it?

Benji: That’s what I will say.

Andrew: Is it his dad’s money? His parents money?

Benji: No. It’s his.

Interesting.  Go to the UK website where UK companies file required corporate documents. Look up Pledge Music LTD. By process of elimination (all the other original investors are listed by real name) it seems the silent investor is represented by an anonymous Panamanian company called Dolan Services Inc. This is from the 2010 Shareholder list.

Here is one installment of the money coming into the company. This document was filed March 25th 2009.  

Notice the share amount matches Dolan Services Inc.  So it’s reasonable to conclude this is the “silent” investor, and clearly the source of the startup capital for Pledge Music. So who is Dolan Services? An archive of the Panamanian Corporate registry seems to provide an answer. Notice the company was formed approximately 3 months before Pledge Music declared the investment and shortly after Pledge incorporated. And this seems to be the company’s only investment.

So It’s these folks right?

 

Probably wrong.  These corporate officers are listed on hundreds if not thousands of Panamanian companies.  This is a classic shell company registration operation. Just drill down on one of the officers.

He is listed on all of theses companies as an officer. This is only a partial list. Hundreds of companies.

I’m using this archive of the Panamanian companies because I can’t seem to find Dolan Services in the Panamanian registry any longer.  It’s possible that I’m not searching properly as I do not speak Spanish. Strange. (Any help here is appreciated).

Dolan Services Inc. continues to be listed as the largest Shareholder in Pledge Music until late 2015.  Then the filings at the UK Company House become a mess.  At one point UK officials target Pledge Music with a form of “delisting.” Probably for not filing proper paperwork. But as far as I can tell Dolan Services seems to disappear from the Pledge Music financial documents after 2016. I could be wrong. Like I said the filings are a mess.

I don’t know what any of this means.  And I’m not implying anything, other than the fact Pledge Music was originally funded by an anonymous Panama registered company that seems to have disappeared.

PLEASE CORRECT ME IF I AM WRONG. Leave comment if you have more information.

 

 

Guest Post: The TAZ, Pirate Utopias and YouTube’s Obsession with Safe Harbors

Guest post by Chris Castle

“[A]s you begin to act in harmony with nature the Law garottes & strangles you – so don’t play the blessed liberal middleclass martyr – accept the fact that you’re a criminal & be prepared to act like one.”

Hakim Bey from “T.A.Z.: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism”

YouTube’s CEO Susan Wojcicki is frantically wheeling around Europe this week in a despairing effort to establish a US-style safe harbor in Europe and undermine Article 13, the Copyright Directive for a Digital Single Market.

Let’s understand that the very concept of a safe harbor for YouTube has its roots deep in the pirate utopias of Internet culture–a fact that may get overlooked if you aren’t a student of the Silicon Valley groundwater.

The Value Gap really owes its origins to the anarchist Peter Lamborn Wilson who wrote the seminal text on pirate utopias under the nom de plume“Hakim Bey” entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism” (1991) or, as it is known perhaps affectionately in hacker circles, simply “TAZ.”  I for one am not quite sure what makes “poetic terrorism” different from unpoetic terrorism, utopian terrorism, anarchic terrorism, or just plain old terrorism, but it may explain why YouTube just can’t bring itself to block terrorist videos before they find an audience.

But the TAZ helps illuminate my own more truncated term for the Value Gap–the alibi. An alibi for a pirate utopia where the pirates run cults called Google and enrich themselves from the prizes they go a-raiding.

In the early days of online piracy there was a fascination with locating servers in some legal meta-dimension that would be outside of the reach of any law enforcement agency. Sealand, for example, captured the imagination of many proto-pirates, but Sealand is a little to clever to put themselves in a position requiring evacuation by the Royal Navy before the shelling begins.  So Sealand was ruled out.

Instead, Google–largely through YouTube–created its own pirate utopia through manipulation of the DMCA safe harbor, one of the worst bills ever passed by the U.S. Congress–and that’s saying something.  Google busily set about establishing legal precedents that would shore up the moat around their precious TAZ.  None of Google’s attacks on government should be surprising–anarchy is in their DNA.  As former Obama White House aide and Internet savant Susan Crawford tells us:

I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it.  We could avoid it.  These people were irrelevant.

And “these people” were stupid enough to give a safe harbor to protect the TAZ.  Because here’s the truth–the safe harbor that has made Google one of the richest companies in the world while they hoover up the world’s culture actually is the quintessential temporary autonomous zone.  It only exists in a changeable statute and the judicial interpretations of that statute, whether the DMCA or the Copyright Directive.  And like HAL in 2001: A Space Odyssey, they’re not going to allow that disconnection without a fight.

But YouTube’s CEO Susan Wojcicki will not be singing “A Bicycle Built for Two” as she flails about in the disconnect of YouTube.  Her basic argument is that “imposing copyright liability is destructive of value” for “open platforms” like YouTube.  “Open platforms” bear a striking resemblance to the TAZ, yes?  Ms. Wojcicki , of course, purveys a counterintuitive fantasy because unauthorized uses for which copyright liability accrues is what destroys the value of the infringed work.  What Ms. Wojcicki is harping about is how copyright infringement destroys value for YouTubeand its multinational corporate parent, Google.  This is what happens when stock options invade a pirate utopia.

Not only has she got it wrong, but what she is actually whingeing about is the threat posed to her YouTube pirate utopia by the Copyright Directive and the united creative community.  And as HAL might say, the YouTube mission is too important for me to allow you artists to jeopardize it.

 

The Values Gap: CD Baby Shows that the Safe Harbor is a Privilege to be Respected and Not an Alibi to be Cheapened

by Chris Castle, from Artist Rights Watch

It’s hard to believe that after a good ten years of being called out, YouTube still–still–cannot manage to stop neo-Nazi and white supremacist material from getting posted on its network.  We’ve been calling out YouTube on MusicTechPolicy and the Trichordist for these inexcusable failures again and again and again.  And yet they keep recycling the safe harbor as an alibi–and they’re doing it again in Europe on Article 13.

I can understand that YouTube doesn’t want to “censor” users and there may be close cases from time to time.  For example, I could understand why YouTube CEO Susan Wojcicki might not want to take down videos from Seeking Arrangement that encourages young women into a “sugar daddy” relationship to pay for college and health care.

Sure, one of her Google colleagues was murdered by a woman he met through Seeking Arrangement.  Maybe Seeking Arrangement is a close case, particularly for a company that opposed the Stop Enabling Sex Traffickers Act.

But you know what’s not a close case? It’s right there in the title of the song–“Who Likes a N—“.  You would think that one would get picked up in a simple text filter of debased language.  But it wasn’t ten years ago and it still isn’t.  Not a close case.

UPDATE:  Author’s note–this YouTube video has been taken down and the account deleted–AFTER this post.

And then there’s “Stand Up and Be Counted” by the White Riders.  It’s not that hard to figure out by listening to any of the many versions of this song that it’s a recruiting song for the Klu Klux Klan.  And it’s not that YouTube doesn’t know it–this version of the hate song has clearly been filtered by YouTube–oh, sorry.  Not by YouTube, but by the “YouTube community.”  But why is it that a KKK recruiting song doesn’t violate YouTube’s terms of service if it doesn’t shock Susan Wojcicki’s conscience?

White Riders

David Lowery called out YouTube and CD Baby for allowing hate rock to be distributed on their platforms.  Within hours, CD Baby pulled the account.  But not YouTube.

Let’s understand a couple things.  First, this is not hard.  The Anti Defamation League and the Southern Poverty Law Center have actual lists of these bands.  Both MusicTechPolicy and The Trichordist have been hammering this issue for years.  Simple word searches could accomplish a large percentage of the task–the N word, KKK recruiting and images of Adolph Hitler are not close cases.

And let’s understand something else.  When users post movies, television shows and recorded music on YouTube, all of those materials have gone through some kind of legal review for standards and practices.  That doesn’t mean there’s no fair use or that there are no parodies.  It does mean that a human has thought about it because free expression is a judgement call.

Free expression is deserving of human examination.  You cannot create a machine that will do this for you.  You cannot rely on crowd sourcing to stop all uses of these vile terms and images–because in every crowd there’s someone who thinks it’s all just fine.  That’s why they’re called mobs.

YouTube, Facebook and all the Article 13 opponents actually are using a complete spectrum of review.  The problem is that they are cost shifting the human review onto artists and to a lesser extent their users for two reasons.  First and foremost is that they hope not to be caught.  That’s what the safe harbor is really all about.  The value gap is just a part of it–the other part is the values gap.  How do these people sleep at night?

But I firmly believe that the real reason that they shift the human cost onto those who can least afford it is because they’re too cheap to pay for it themselves.  They are willing to take the chance because getting caught so far has been a cost of doing business.

The real cost of their business is the corrosive effect that they have on our discourse, our families and our children.  There has to be a way to make YouTube responsible for their choices–and CD Baby showed this week that it’s not only possible but necessary.

If YouTube and their paid cronies want to try to convince legislators that they deserve special protection, they need to live up to the standard that CD Baby set this week  And they need to do that before they get any further special treatment.

As we’ve said for years, the safe harbor is a privilege not an alibi.