MUSICCOVIDRELIEF.COM EXPLAINS CARE ACT AND OTHER PANDEMIC RESOURCES FOR THE MUSIC BUSINESS

A host of organizations have come together to create MusicCovidRelief.com, a website that explains the ins and outs of the CARE Act, the pandemic relief bill.

Spend some time on the site and learn about the many cash resources made available by the historic legislation.  The good news is that self employed and small business can take advantage of funds, but move quickly because the funds are available on a first-come first-served basis.

Big thanks to RIAA for putting this together so quickly.  Visit  MusicCovidRelief.com to know what’s on offer.  You may also find the return of the Carte Musique to be of interest as in this post from Chris that is getting uptake in some policy circles it limits the purchasing power to tracks bought from a local retailer.  Again–Carte Musique cannot be used at Amazon but can be used to buy directly from a participating store.  The Carte could be cosponsored by big brands even for tours with tour branding.

#DoStuffAtHome To the Rescue!

You probably know DoStuff as Do512 or DoLA or another of their many handles as the premier local events website.  Now that artists are starting to hit the virtual venue space as a real thing, DoStuff has responded with DoStuffAtHome.com which is a directory of the many virtual shows around the country.

A good example is DJ Mel’s Living Room Dance Party which features a DJ set by Austin’s own DJ Mel which he hosted on his Facebook page and draws over 6,000 people for a fabulous community dance party on Saturday night.  And he raised money for good causes with a $10,000 boost from Tito’s Vodka.  Shout out to Tito’s!

Check it out, list your event, keep the faith.  This will be our finest hour.

Press Release: @SoundExchange, entertainment community ask Congress for financial relief during coronavirus pandemic

PRESS RELEASE

Today, SoundExchange joined organizations from across the entertainment community to ask Congress to address the unique nature of our community’s work when it develops an aid package in response to the coronavirus pandemic. Payroll tax holidays, paid leave, and other types of assistance have been raised for consideration by our nation’s leaders, but they may never reach the many workers in the music industry who don’t have a single, long-term employer.

You can find the full text of the letter below or download a pdf here.

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

As united representatives of the large and diverse American entertainment community, we offer our sincere gratitude for your immense efforts to address the COVID-19 pandemic and to provide much needed aid.

We understand the sacrifices our country is making and appreciate our shared responsibility. We will make the necessary adjustments to our lives but, unfortunately, there is no option for many in the entertainment community to work from home. Our home is on the road, on the studio lot or in the theater, in venues across the country that must close during the pandemic, in front of live audiences or with cast members who cannot gather. For now, those performances – and our jobs – have vanished, along with the costly and personally devastating investments we can never recover. Without help, we know that many in our community will find themselves homeless, hungry, and unable to tend to their medical needs.

The economic pain cuts even deeper, touching not only performers and musicians, but also managers, producers, promoters, stagehands, drivers, and countless others who are feeling the immediate repercussions of this new reality. This unprecedented economic loss caused by canceled performances and production shutdowns is being played out in bars, nightclubs, theaters, stadiums, concert halls, studios, and festivals in every state, sidelining thousands of workers.

The entertainment community will do what it can to support its members, but this moment calls for the unmatched capabilities of Congress. As you navigate the difficult path to providing necessary aid to distinct sectors of our economy, we ask that you specifically address the unique nature of our work. Payroll tax holidays, paid leave, and other typical assistance may never reach many in the entertainment community; in fact, direct financial aid remains one hopeful – and perhaps best – solution to replacing lost income and offering some semblance of economic sustainability. 

We propose a similar benefit to the Emergency Paid Leave in Division C of HR 6201, along with emergency unemployment insurance access, available to those who cannot work due to a canceled performance or a production shut down. This fund and expanded unemployment insurance access and benefits would ensure that hundreds of thousands of families across the country can continue to pay rent, put food on the table, and care for their children during this public health emergency. In addition, we encourage you to be as inclusive as possible when crafting emergency paid leave, tax credits, and other programs – the unique nature of our industry means rules that require beneficiaries to have had a single, long-term employer will simply leave our entire workforce behind.

We all look forward to the end of this crisis. Certainly, entertainment will help us get through it. But we must take care of the many people in the American entertainment community who will help us heal, rebuild, and bring us back together, in public and in spirit.

Thank you very much.

Sincerely,

Actors’ Equity

Alliance for Recorded Music (ARM)

American Association of Independent Music (A2IM)

American Federation of Musicians (AFM)

Americana Music Association

Artist Rights Alliance (ARA)

The Azoff Company

The Broadway League

California IATSE Council

Christian Music Trade Association (CMTA)

Country Music Association (CMA)

Gospel Music Association (GMA)

CreativeFuture

Department for Professional Employees, AFL-CIO (DPE)

Digital Media Association (DiMA)

Directors Guild of America (DGA)

Entertainment Union Coalition

Full Stop Management

Global Music Rights (GMR)

Independent Music Professionals United (IMPU)

International Alliance of Theatrical Stage Employees (IATSE)

International Bluegrass Music Association (IBMA)

Live Nation

Music Artists Coalition (MAC)

Music Business Association (MusicBiz)

Music Managers Forum – US

Nashville Songwriters Association International (NSAI)

National Music Publishers’ Association (NMPA)

Paradigm Talent Agency

Recording Academy

Recording Industry Association of America (RIAA)

Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA)

SESAC

Songwriters of North America (SONA)

SoundExchange

Southern Gospel Music Guild

United Talent Agency (UTA)

William Morris Endeavor (WME)

Writers’ Guild of America, East

Google’s Charm Offensive Comes to Senate IP Subcommittee

Guest post by Chris Castle

[This is a version of a letter I sent to the Senate Subcommittee on Intellectual Property on March 10 to call attention to various discrepancies in the proposed witness list, especially the undisclosed presence of the Pirate Party at a hearing at the world’s greatest deliberative body.  And typically, Julia Reda never disclosed her affiliation in her witness bio or in her written testimony.  Why so secretive?  You can watch the video of the hearing here.  Apparently the rules of the subcommittee prevented Senators from questioning the witnesses, which allowed Google’s amen chorus to simply spew propaganda into the hearing record.]

I want to thank the Subcommittee on Intellectual Property for holding the referenced hearing.  Digital piracy is of ongoing concern to all contributors to the creative community be they photographers, film makers, authors, songwriters, musicians or featured artists.  This is particularly true after catastrophes like the cancellation of SXSW in the Live Music Capitol of the World.  Creators very often feel overwhelmed by the forces that use the Internet and the U.S. banking system to unlawfully extract value from their copyrights.  Digital piracy seems to benefit everyone in the piracy supply chain except the creators of the works driving these racketeering operations.

Unfortunately, the hearing witness list seems to indicate an overwhelming influence of Google and Google proxies as well as a representative of the Pirate Party.  However gloomy this turn of events may first appear for creators, it presents an opportunity for the Subcommittee to question the witnesses about the influence of Big Tech on efforts to reign in pirate operations, particularly off shore pirate operations.  I raise a few points of reference that I hope may prove useful to the Subcommittee and respectfully ask that you request that this letter be made a part of the Subcommittee’s record for the hearing.

Off Shore Pirates Profit by Interfering in US Markets

Unlike the historical pirates who were declared hostis humani generis under admiralty law, or the modern pirates who hijack cargo ships such as the Maersk Alabama and are stopped by Operation Allied Protector, digital pirates defy the nation state relatively openly and brazenly.   Digital pirates leverage anonymity, geography and extradition treaties to wrap themselves in the laws they cherry pick and use as loophole-driven alibis.  They also engage in lawfare and have organized political movements from Kim Dotcom’s Internet Party to the Pirate Party.  Pirates also embrace a host of academics and corporate legal departments that push their views.  For example, Stanford hosted a July 2007 Pirate Party cash-preferred political fundraiser for anonymous donors that also had stops at the Googleplex[1] and the O’Reilly conference.  The examples go on and on.

Despite the penetration of streaming services, music piracy is still a major problem for creators.  According to the IFPI, “forty percent of Internet users access unlicensed music content.”[2]  The Subcommittee’s focus on the issue is of great public policy importance.

There is a long history of pirate websites locating themselves outside of the United States but marketing themselves to U.S. users in a deceptive manner that makes it difficult for consumers, including both consumers and brands, to distinguish an illegitimate site from a legitimate one.  As the UK’s Serious Organized Crime Agency warned advertisers, “By incorporating advertising from recognized brands the website administrator attempt[s] to make the site appear legitimate.”[3]

This practice is most pronounced with sites that profit from U.S. content by selling advertising or subscriptions to enrich themselves from trafficking in pirated works.[4]  There is a continuing controversy regarding the source of the advertising[5]published on these illegal sites coming from Google entities through various intermediaries and resellers[6] as well as the use of the banking system to fund the pirates.[7]

The leading torrent site to this day is The Pirate Bay which has a recent Alexa rank of the 169th most visited site on the Internet.[8]  Founded in Sweden 17 years ago[9] contemporaneously with the Pirate Party, The Pirate Bay personifies the off-shoring of piracy and has been consistently mimicked by hundreds of other pirate sites such as YTS.It, 1337x, RARBG, NYAA.si, Torrentz2, EZTV.io, LimeTorrents, FitGirl Repacks and Tamil Rockers.  Pirate streaming sites follow the same offshoring practice and are an even bigger source of piracy than torrents.

These pirate sites invariably purport to wrap themselves in the DMCA safe harbors but locate themselves in havens outside of the U.S. that are well outside the reach and resources of creators forced to play the Superbowl of international whack-a-mole.  These pirate sites have no intention of subjecting themselves to the jurisdiction of U.S. courts but want the benefits of U.S. law, all the while marketing themselves in the U.S. in direct competition with the creators, including creators, whose works they steal.[10]

The digital pirates’ fascination with creating these offshore “pirate utopias” (or “Temporary Autonomous Zones” or “TAZ”) dates back to the 1991 hacker’s handbook by the anarchist Peter Lamborn Wilson entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism.”[11]  Julian Assange promoted the idea of a TAZ-type “offshore publications center” for Wikileaks in the 2009 document “Here be Dragons: Going from Defense to Attack.”[12]   Assange proposed Iceland as an offshore center and pirate utopia that would allow Wikileaks to operate freely.  Birgitta Jónsdóttir, a founder of the Iceland Pirate Party,[13] was one of the sponsors of the “Icelandic Modern Media Initiative”[14] that would have essentially codified Assange’s goals and is gradually coming to fruition at the Icelandic Parliament.  Again, the idea was to establish an off-shore haven for activity that would otherwise be illegal—a geographical safe harbor or TAZ well beyond the legislative safe harbors that largely accomplish the same purpose inside major economies like the United States in the name of protecting “intermediary liability” for the largest corporations in commercial history.

Pirates embrace the nation they spurned once they get caught.  Companies like Megaupload[15] located themselves in Hong Kong but put up a smokescreen of complying with the DMCA notice and takedown procedures while marketing themselves in America.  They often use the U.S. banking system to receive illicit payments from users or advertising revenue from companies like Google and Adbrite.[16]  Even in the handful of cases where copyright owners are able—at great expense beyond the means of most creators–to get these massive infringers in front of a U.S. judge such as with the Panamanian company Hotfile,[17] the defendant tries to wrap themselves in the protection of the DMCA safe harbor.

The Justice Department’s well-known experience with trying to extradite the Megaupload conspirators since 2012 is a prime example of the lengths to which these brazen racketeering organizations will go to avoid U.S. justice while simultaneously claiming the protection of U.S. law.  If the Megaupload conspirators ever do find themselves before Judge O’Grady, they will no doubt seek the protections of the DMCA because they argue Megaupload is “just like Google.”  In fact, Google submitted an amicus brief in the Hotfile case arguing that massive infringers should be protected by the DMCA—which makes Google’s shadowy presence at the Subcommittee even more telling.

Drafters of the DMCA would probably never have thought of themselves as creating a pirate utopia, but the safe harbor concept is near and dear to the Pirate Party, its backers and supporters.  Statutory safe harbors—or protection from “intermediary liability” as Google might call it–are more than a little reminiscent of the TAZ.  It is thus striking that the Subcommittee is to hear from Julia Reda, the long-time representative of the Pirate Party in the European Parliament, as well as so many other beneficiaries of Google’s support.

Julie I am the pirate

Pirate Party Witness Will Offer Big Tech’s Anti-Copyright Propaganda

I find it hard to understand why the Subcommittee has invited a leader of the European Pirate Party to testify at a hearing devoted to learning from efforts to reign in digital piracy in other countries.  I also find it rather odd that Ms. Julia Reda failed to disclose her German Pirate Party association in her public witness biography or her witness statement when last accessed today, which is ambiguous at best and misleading at worst. And typical of the duplicity we have come to expect from her.

Ms. Reda was the sole representative of the Pirate Party in the European Parliament for many years.[18]  Her Pirate Party affiliation is directly relevant to her testimony.  The Pirate Party, as the name implies, is closely tied to promoting piracy using the tiresome shibboleth of “sharing culture” in the words of Ms. Reda, or conversely the equally empty vessels of making copyright “progressive” and “fit for the future,” or simply the vague “access to knowledge” meme favored in Open Society Institute circles.[19]

Or just make international copyright even weaker—to the great detriment of the property rights of creators already under attack from multiple sources. [20]

It also must be said that Big Tech has tried for years to get creators to believe that digital piracy actually helps artists and songwriters because it drives fans to shows and movie theaters.  Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties.  However implausible that assertion is, if there’s no touring or touring is severely cut back due to public health concerns, then both piracy and the income transfer to pirates becomes even more important to all creators.

Julia Child Lobbying

The Pirate Party has had a close connection to the notorious criminal infringer The Pirate Bay.  In fact, the Pirate Bay’s co-founder Peter Sunde ran for the EU Commission Presidency on the Pirate Party slate at the time of his arrest, conviction and imprisonment in Sweden for massive copyright infringement.[21]  The Pirate Party reportedly offered to host the Pirate Bay on the servers of the Swedish Parliament.[22]

According to Wired Magazine,[23] the Pirate Bay inspired the creation of the Pirate Party in 2006—regardless of whichever came first, the two are synonymous today.  The connection between piracy and the Pirate Party is abiding and sustained over a generation.  Indeed the German Pirate Party’s youth operation—“Junge Piraten”—is devoted to the ongoing generational transfer of its goals.[24]  Anyone who observed the Pirate Party’s tactics in the recent European Copyright Directive debate at the European Parliament should have no doubt that Ms. Reda is a dedicated opponent of copyright and an equally dedicated supporter of piracy masquerading as “sharing culture” or “progressivism.”

helga google interfere

Plus, it must be said that Ms. Reda’s efforts to stop the Copyright Directive were as close to Google’s own lobbying effort as one is to two.  This includes such extreme tactics as spamming MEPs, lobbying the children of elected officials through Twitter to try to persuade their parents to oppose the Copyright Directive (sometimes referred to as #Article13) and promoting the #saveyourinternet spamming and Twitter bot campaign along with Google and particularly YouTube.[25]  Google was caught spamming Members of the European Parliament on the Copyright Directive by the Times of London in an independent investigation.  According to The Times, “Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals[,] intended to amplify the extent of public support for policies that benefit Silicon Valley[.]”.[26]  This may sound reminiscent of what the U.S. Congress was subjected to during SOPA.

Given Google’s éminence grise at the hearing, it is no surprise that of all the elected representatives who the Subcommittee could have invited, it is Ms. Reda who finds her way into the U.S. Senate.  Reda-watchers assume she will be dining out on the platform afforded her in the Senate for years to come.  Hopefully, Ms. Reda does not intend to export her European Parliament lobbying tactics against Senators in the United States.

Google Dominates the Subcommittee Witnesses

It is also striking that Google is so well-represented among the witnesses at the Subcommittee’s hearing—yet its name is never mentioned.  Texans are asked to pay no attention to who is behind the curtain.  A little bit of research reveals the connections.

Professor Smith’s own Carnegie Mellon biography[27] lists four separate research grants from Google.  The Carnegie Mellon Privacy and Security Lab received a $1,050,000 cy pres award[28] in the controversial Google Referrer class action as well as a $350,000 cy pres award in the Google Buzz settlement.

Google is a leading member of the Computer and Communications Industry Association[29] which is a frequent critic of artist rights advocates and a reliable amicus brief for Google’s extreme business practices alongside NGOs like the Electronic Frontier Foundation, R Street and Engine Advocacy.

Daphne Keller is a former Google senior lawyer responsible for Google’s crown jewel of search and now works as “Director of Intermediary Liability” at the Stanford Center for the Internet and Society PACS.[30]  The Center was itself was launched with at $2 million gift from Google.[31]

As Ms. Keller well knows, Google’s own Transparency Report[32] shows the company has received over 4 billion DMCA takedown notices for infringing material in Google search alone. This is what is meant by “intermediary liability” (or more appropriately, no liability for self-defined “intermediaries”).  Is there another company in commercial history that when told it has infringed 4 billion times views the same ongoing infringement technique as a feature not a bug?  Does anyone believe that Google’s search algorithm is not behaving foreseeably exactly as designed due to lack of resources, complexity of scale or any other reason?  Or is Google instead distorting every possible safe harbor loophole and copyright exception to maximize its profits by maximizing the value gap?  Google would no doubt argue that the reason they receive so many takedown notices is because of the scale of Google’s monopoly operation–which is like the arsonist arguing that they should be excused from punishment because they light a lot of fires.  Perhaps fighting digital piracy begins at home.

Both Professor Samuelson’s Berkeley Center for Law and Technology and the Samuelson Law, Technology and Public Policy Clinic received $500,000 and $200,000 respectively from Google as part of the controversial Google cy pres awards recently called into question at the U.S. Supreme Court in the Frank v. Goes case.[33]  Of course, Google is a major benefactor of the Berkeley law school.  Professor Samuelson is a prime mover[34] in the American Law Institute’s controversial end run around the Congress with its nascent “Restatement of Copyright” as the Subcommittee well knows.[35]

Cy Pres

Recent Google and Facebook Cy Pres Awards

And if Ms. Reda’s past devotion to piracy were not evidence enough, she is now associated with the Berkman Center, which itself has received sustained corporate funding from Google including $500,000 and $750,000 in two separate cy pres awards from Google in controversial class action settlements.

As the sole connection to a foreign government whose practices are evidently intended to inform the Subcommittee, Ms. Reda seems an odd choice, certainly when there is no countervailing representative of which there were many (such as MEPs Helga Truepel or Axel Voss or Commander Karen Baxter of the City of London Police).

I hope that some of this information may prove useful to you in questioning the witnesses on behalf of creators and in achieving the goals of the hearing.

 

[1] Rick Falkvinge, Google TechTalks available at https://www.youtube.com/watch?v=08gfh_6sbQI
[2] Tackling Music Piracy available at https://ifpi.org/music-piracy.php
[3] Criminal Finance from Third Party Advertising on the Internet, [UK] Serious Organized Crime Agency Alert A2A725N (Nov. 2012).
[4] U.S. Remains the Top Traffic Source for Pirate Sites, Torrentfreak (Mar. 1, 2020) available at https://torrentfreak.com/the-u-s-remains-top-traffic-source-for-pirate-sites-200229/
[5] Note that Google’s Chrome browser promotes a browser extension that blocks ads and banners on thepiratebay.org https://chrome.google.com/webstore/detail/remove-ads-from-pirate-ba/imkpamgpfalmdaikobnkefcmmkpgljjd
[6] Starting in 2019, the City of London Police Intellectual Property Crime Unit coordinates with the Trustworthy Accountability Group in “Project Brand Integrity” that alerts advertisers when their ads are published on pirate sites by ad network sellers and resellers.  TAG and Creative Future has operated a similar program in the U.S. since 2016.  Press Release: Trustworthy Accountability Group Launches New Anti-Piracy Initiative to Protect European Brands, City of London Police (Feb. 12, 2019) available at http://news.cityoflondon.police.uk/r/1194/trustworthy_accountability_group_launches_new_ant
[7] European Union Intellectual Property Office, Money Laundering and Copyright Policy (Sept. 4, 2019) available at https://euipo.europa.eu/knowledge/enrol/index.php?id=3550 (“[A] significant stream of new case law in Europe developed in Europe, dealing with interesting elements of the online infringing models as well as with the relationship between online piracy and other associated crimes, as money laundering.”).
[8] Top 10 Most Popular Torrent Sites of 2020, Torrentfreak, available at https://torrentfreak.com/top-10-most-popular-torrent-sites-of-2020-200105/
[9] The Pirate Bay, Wikipedia, available at https://en.wikipedia.org/wiki/The_Pirate_Bay
[10] Joint Supplemental Comments Of The American Association Of Independent Music And Future Of Music Coalition In Response To Request For Empirical Research, Copyright Office, In the Matter of Section 512 Study, Docket 2015-7 (2015)(Study shows that over 70% of respondents fail to enforce their rights due to lack of resources).
[11] The Temporary Autonomous Zone, Wikipedia available at https://en.wikipedia.org/wiki/Temporary_Autonomous_Zone
[12] Wikileaks Release 1.0, YouTube available at https://www.youtube.com/watch?v=VWNfIvG4z-g&feature=emb_logo
[13] Birgitta Jónsdóttir, Wikipedia available at https://en.wikipedia.org/wiki/Birgitta_Jónsdóttir
[14] Icelandic Modern Media Initiative, Wikipedia available at https://en.wikipedia.org/wiki/Icelandic_Modern_Media_Initiative
[15] Jonathan Bailey, Megaupload’s DMCA Shell Games, Plagiarism Today (January 23, 2012) available at https://www.plagiarismtoday.com/2012/01/23/megauploads-dmca-shell-games/
[16] Indictment and Summary of Evidence, United States v. Kim Dotcom and Megaupload Limited et al, at 34 (Crim. Case No. 1:12CR3, E.D. Va. 2012).
[17] Hotfile, Wikipedia available at https://en.wikipedia.org/wiki/Hotfile
[18] Ms. Reda promotes herself as “My name is Julia, I’m the Pirate in the European Parliament” and does to this day on her website juliareda.eu
[19] Pirate Party founder and Bitcoin promoter Dick Greger Augustsson also known under the alias Rick Falkvinge says “The events unfolding now will not just crumble today’s power structures, but put them in the kitchen blender and set it to ‘Disintegrate,’ happily leaning against the kitchen counter with one hand on the blender lid while leisurely whistling folk songs.”  Access to Knowledge in the Age of Intellectual Property(Information Program of the Open Society Institute, available at http://www.soros.org/initiatives/information/focus/access/articles_publications/publications/age-of-intellectual-property-20101110/age-of-intellectual-property-20101110.pdf); see also “Bitcoin will Hit $5 million—Rick Falkvinge” available at https://www.youtube.com/watch?v=vdPWnYnpEOw and “Right on the Money: Bitcoin hits $3,000  or 1000x my entry point six years ago” Falkvinge on Liberty (June 11, 2017) available at https://falkvinge.net/2017/06/11/right-money-bitcoin-hits-3000-1000x-entry-point-six-years-ago/
[20] A recent large study of 1,564 independent musicians based in Austin sponsored by the City of Austin documented that 44% of respondents stated digital music sales “Contributes None” to their income.  Titan Music Group LLC, The Austin Music Census 27 (Fig. 5) (June 1, 2015) available at https://www.austintexas.gov/sites/default/files/files/Austin_Music_Census_Interactive_PDF_53115.pdf.
[21] Julia Reda, Solidarity with Peter Sunde, Julia Reda Blog (May 2014) available at https://juliareda.eu/2014/05/solidarity-with-peter-sunde/
[22] Duncan Geere, Pirate Party to Run Pirate Bay from Swedish Parliament, Wired (July 5, 2010) available at https://web.archive.org/web/20100708152621/https://www.wired.co.uk/news/archive/2010-07/5/pirate-bay-swedish-parliament
[23] Special Report: The Pirate Kings of Sweden, Wired (Aug. 17, 2006) available at https://www.wired.com/2006/08/a-nation-divided-over-piracy/?tw=wn_index_13
[24] Young Pirates (Germany) Wikipedia https://en.wikipedia.org/wiki/Young_Pirates_(Germany)
[25] Le Tatou, Ce Qu’on Ne Vous Dit Pas Sur l’Article 13  (What No One Tells You About Article 13) YouTube (Dec. 12, 2018) available at https://www.youtube.com/watch?v=fAdhXb1NR_o
[26] Matthew Moore, Google Funds Website the Spams for its Causes, The Times of London (August 6, 2018).
[27] Available at https://mds.heinz.cmu.edu/bio-vita/
[28] See, e.g., Roger Parloff, Google and Facebook’s New Tactic in the Tech Wars, Fortune (July 30, 2012) available athttps://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/ (“If the Electronic Frontier Foundation, the nation’s preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million [cy pres] gift from Google — about 17% of its total revenue — some eyebrows might have been raised.”).
[29] Google Trade Associations and Membership Organizations available at https://services.google.com/fh/files/misc/trade_association_and_third_party_groups.pdf
[30] Available at https://pacscenter.stanford.edu/person/daphne-keller/
[31] Available at available at https://news.stanford.edu/news/2006/december6/google-120606.html
[32] Google Transparency Report available at https://transparencyreport.google.com/copyright/overview
[33] The Google Street View class action settlement is also being opposed by nine state attorneys general as well as a class objector.  Objection of David Lowery, In Re Google LLC Street View Electronic Communications Litigation (Civ. Case No. 3:10-md-02184 N.D. Calif. S.F. Div. Jan. 20, 2020).
[34] Letter from Pamela Samuelson to Director of American Law Institute (Sept. 12, 2013) available at https://musictechpolicy.files.wordpress.com/2018/02/letter-re-ali-council-010918.pdf
[35] Letter from Chairman Thom Tillis, Sen. Ben Cline, Reps. Deutch, Roby and Rouda to Director  of American Law Institute (Dec. 13, 2019) available at https://musictechpolicy.files.wordpress.com/2019/12/tillis-et-al-letter-to-ali-re-restatement-of-copyrights.pdf

@SoundExchange and @TXMusicOffice Host SoundExchange Session in Houston — Artist Rights Watch

[Editor Charlie sez: Great to see Texas Music Office and SoundExchange partnering to give Texas artists and producers a chance to sit down directly with SX to get their questions answered on digital royalties and payments.  And it’s not even SXSW!  More of this please!]

via @SoundExchange and @TXMusicOffice Host SoundExchange Session in Houston — Artist Rights Watch–News for the Artist Rights Advocacy Community

TikTok Celebrates Black History Month by Not Paying Black Writers

Adweek reports that TikTok is celebrating Black History Month.

TikTok is marking Black History Month with special edition stickers and by showcasing videos from some of the inspiring African-American creators on its platform.

Creators can add stickers with positive affirmations to their videos, such as Black History Month, Expression Without Limits and Make Black History.

We find this to be a disgusting bit of bullshit virtue signaling. Why? With the possibly a couple rare exceptions*, TikTok is not paying writers performance or mechanical royalties despite the fact they clearly publicly perform, make available and distribute copies of songs to their billion or so users. Sure they are not only stiffing persons of color, they are stiffing white writers as well, but given the fact that Black writers and performers are generally overrepresented in the music business, one could argue this is a kind of algorithmic racism that on average and over the long term takes money from POC and gives it to the executives at TikTok.

 

TikTok General Counsel Erich Andersen

Executives like Global General Counsel Erich Anderson (formerly of Microsoft) and…

Former Warner Music Group Executive Ole Oberman.

Former Warner Music Group Executive Ole Oberman. And…

Former Rights & Repertoire chief at GEMA and ICE attorney Dr. Joern Radloff. And…

 

Tracy Gardner former SVP Global Business Development at Warner Music Group.

Finally, does anyone notice a pattern here?  Key executives responsible for negotiating on behalf of songwriters and artists, suddenly switch sides and TikTok gets a free pass to infringe?

This will get ugly.

*Sources at one major label report that TikTok has licenses for a “very small number of recordings” with the rest of their catalog unlicensed. Sources at a large publisher report no licenses with TikTok at all.

@dmccabe: IBM, Marriott and Mickey Mouse Take On Tech’s Favorite Law — Artist Rights Watch

[Editor Charlie sez:  This is kind of like reverse MIC Coalition.  Time for the Internet Association’s CEO Michael Beckerman (call sign “Big Foot”) to scramble.  Remember him?  Wasn’t he an extra in Zoolander?]

An unusual constellation of powerful companies and industries are fighting to weaken Big Tech by limiting the reach of one of its most sacred laws. The law, known as Section 230, makes it nearly impossible to sue platforms like Facebook or Google for the words, images and videos posted by their users.

Read the post on the NY Times

via @dmccabe: IBM, Marriott and Mickey Mouse Take On Tech’s Favorite Law — Artist Rights Watch–News for the Artist Rights Advocacy Community

@TatianaCirisano: @SoundExchange Asks @USTradeRep to Help Artists Get Paid Abroad — Artist Rights Watch

[I]n a new filing with the [US Trade Representative] for its annual “Special 301” review of intellectual property rights protection, SoundExchange says that six countries deny full national treatment to American producers and performers, because “those countries are not paying them for the same uses that these countries are paying their own national producers and performers” — specifically, for traditional broadcasts, public performances and some digital uses.

The countries are the U.K, France, Australia, Japan, the Netherlands and Canada.

Read the post on Billboard

 

via @TatianaCirisano: @SoundExchange Asks @USTradeRep to Help Artists Get Paid Abroad — Artist Rights Watch–News for the Artist Rights Advocacy Community

@musictechpolicy: Letter to Congress on the Intersection of the Copyright Directive, USMCA and Brexit

[This is a letter first posted to our sister site Artist Rights Watch that Chris Castle sent to Congress in December on the crossover between Brexit (which goes into effect today), the European Copyright Directive and the US Mexico Canada Agreements.  Google is using the USMCA to grift the DMCA (and Section 230) safe harbor into US trade policy.]

Readers might be interested in this letter I sent to Congress last month regarding the European Copyright Directive/Brexit/USMCA intersection.  This is real now, Brexit is happening tomorrow and the UK Government announced it will not be transposing the European Copyright Directive.  The UK government will no doubt be seeking–quickly–a bilateral trade agreement with the US.  Having just concluded and signed into law the United States-Mexico-Canada trade agreement (USMCA), the Trump Administration may be tempted to use certain aspects of the USMCA as the basis for a UK bilateral agreement.

While creators were able to hold the line on some important copyright issues, Google was able to get the USMCA to incorporate DMCA loopholes that are a big problem and go in the opposite direction of the progress on safe harbor loopholes gained in the European Copyright Directive.  Google has built up a massive lobbying effort in the UK and you can expect it to kick into high gear on this issue.  Google will try to gain in the UK what they lost in the European Parliament, and then bootstrap any gains into opposition against other EU countries adopting the Copyright Directive.

You may wish to draw on these points to send a letter of your own.

Limiting Safe Harbors in Trade Agreements

Many welcome the passing of the renegotiated North American Free Trade Agreement, known as the United States-Mexico-Canada Agreement (USMCA).  However, creators in will be concerned about perpetuating in other trade agreements the harms in the USMCA’s Article 20.89 (Legal Remedies and Safe Harbors).

These concerns arise because the Article incorporates the highly controversial “DMCA safe harbor ” (17 USC Sec. 512 et seq).  The Article perpetuates the DMCA’s highly controversial and debilitating “whack a mole” regime that creators have suffered for decades.  Our fellow citizens simply cannot tolerate such grotesque unfairness becoming standard practice for trade agreements by the United States.

I encourage you to call on your colleagues to include in the legislative history of the USMCA language that would recognize the harms to artists and all creators of  Article 20.89, disclaim the use of the Article as a model for future trade agreements and require the US Trade Representative to consult with the relevant committees of Congress before negotiating future agreements that address safe harbors.  This is particularly urgent given the Copyright Office’s current review of the DMCA and legislative events in Europe moving in the opposite direction of the Article.

Piracy and the near-piracy by companies like Google and its YouTube subsidiary is most pronounced in the blatant encroachment on creator rights by the DMCA’s “whack a mole” extortion model of both online pirates and those who support them in the piracy supply chain–hosting services, search engines and advertising sellers and resellers.   This illicit enterprise is clearly not in the public interest.

Internet piracy does not distinguish among “hit” records or genres, geographic areas, or creative categories.  It needs to be repeated that the follow-on effects are massive for all of those in the creator’s supply chain as well as the creative economy.  Two generations of clients ask us of the DMCA loophole, “How can this be legal?”

The Article effectively codifies the notification-counter-notification call and response of the so-called “DMCA safe harbor.”  The infringer sending a counter-notification after receiving a takedown notice likely knows that there is no downside for challenging an independent artist if that artist cannot afford a federal lawsuit to enforce a reply to a counter-notification (17 USC Sec. 512(g)(2)(C)) much less international copyright enforcement.

For independent artists, international copyright enforcement essentially does not exist.  Consequently, counter-notifications are frequently supported by the flimsiest of theories, often laughably misreading the safe harbor laws based on “Internet myths”.

Artists, however, are not in on the joke because the punchline is that the theft continues absent the court order that is financially beyond reach.  Profits from the piracy supply chain continue unabated and the law—including the Article–is mocked once again.

This tragic call-and-response is particularly mismatched when challenging the Internet companies that are the biggest publicly-traded multinationals in commercial history.  Challenging the safe harbor requires all creators to constantly police these platforms and sue to enforce their rights.   That’s just not realistic.  By adopting the DMCA in the Article, the safe harbor becomes a brutal fortification.  Process becomes punishment for creators.

As you may be aware, the European Parliament recently adopted the new European Copyright Directive that sharply cut back on safe harbors like the DMCA that allow profit from piracy.   The message from our trading partners is clear—no more whack-a-mole.  It would send entirely the wrong signal for the United States to try to force what is essentially an economic sanction on our trading partners through the back door of a trade agreement with loopholes like Article 20.89

Dual Class Stock

I also call your attention to the dual class voting stock mechanism popularized in Silicon Valley by Google that gives Google’s founders 10 to 1 voting power over holders of the company’s publicly traded shares.  This dual class system has been criticized by many, included SEC Commissioner Robert J. Jackson, Jr. out of concern that it effectively establishes “corporate royalty.”  Commissioner Jackson’s concerns are prominently confirmed in the recent departure from Google’s management of Larry Page and Sergei Bryn who still control Google due to their 10:1 voting stock.

If the USMCA can require our trading partners to pay certain minimum wages, it seems that trade agreements could also address this fundamental unfairness that has most recently led to the economic debacle at WeWork.

Thank you for the opportunity to comment on USMCA.