Guest Post: Pandemic: @Music_Canada COVID Study Sets the Gold Standard for Reopening Data-Driven Policy

By Chris Castle

[This post originally appeared on MusicTechPolicy.]

MusicCanada commissioned an outstanding survey by Abacus Data using serious data-driven methodology to credibly measure the Canadian public’s experience with the COVID shut down of live music and expectation for reopening.  Instead of glorified “Who’s Hot”-level casual polls you see cropping up here and there, The Locked-Down Blues: Canadians, Live Music and the Pandemic sets the gold standard for the kind of data-driven serious national opinion study that policy makers can actually use to plan how to get out of this corner.

The study measures many different factors, including the more intangible questions of what trust level fans will require before they come back to live music.  Regardless of what distancing or contamination standards are imposed, none of that matters much if the fans don’t trust it enough to come out to hear live music in cities like Toronto and Austin.

For example, the study found this reaction:

DESPITE WANTING TO GO, CANADIANS, EVEN THOSE WHO LOVE LIVE MUSIC, SAY THEY WILL BE RELUCTANT TO GO BACK TO LIVE MUSIC EVENTS BEFORE A VACCINE FOR COVID IS FOUND.

Even if they are permitted to go to live music events, many Canadians, including those who love live music the most, will be reluctant to return for some time.

We asked respondents how soon they will feel comfortable enough doing several activities, once physical distancing restrictions are lifted. In almost all cases, fewer than 40% said they would feel comfortable in a few months or less. For most, the time horizon was much longer with many saying they may never feel comfortable again.

For example, 43% said it would take six months or more before they would feel comfortable going to a music festival or a concert in a large venue. Another quarter said they may never feel comfortable going to those types of events again.

I find it hard to believe that there’s going to be an appreciable geographical distinction between Canada and any other country on these issues.  But this study provides a gold standard for other studies in other countries, all of which should be done and done using a robust and defendable methodology.

So let’s be clear–this study is giving you the hard truth.  It is not some Chamber of Commerce hoorah or conclusion-driven clap trap.  It also tells us that the idea that you can just turn the lights back on and people will flock to the clubs may be looking at the wrong ball.  It has serious implications for the entire music industry across all genres.

But–it especially has serious implications for cities like Austin that get significant economic benefit from music tourism.  Given that the City of Austin commissioned the Austin Music Census in 2015, another robust data-driven study that produced  unwelcome dire conclusions,  it is astonishing that the blinking red light in the Census was completely ignored.  Not only were Austin musicians poorer than the City seemed to think they were, the entire local ecosystem was essentially dependent on live music.  For example, streaming was a negligible source of revenue for Austin musicians–think maybe someone would have wanted to look into that issue as a matter of industrial strategy?  And is there anything about the “Live Music Capitol of the World” that gives you a clue that maybe you might want to start thinking about why all the eggs were in that basket?  As Mark Twain said, if you’re going put all your eggs in one basket, watch that basket.  Or at least don’t ignore it.

Since the City did such a thorough job of ignoring the Census for so long, I wonder if they’re going to be able to figure out how to solve the current crisis.  Or if maybe somebody actually would like Austin to turn into just another college town with a Google campus, self-driving cars busily scraping rider data while stacked up on I-35 and Uber Eats Your Soul.

We can be grateful to Music Canada for commissioning this study and getting it out at the perfect time for policy makers to have some meaningful data driven reality conducted in a manner that could stand up to peer review like the Austin Music Census.  And show the world the gold standard for how to develop policies that actually solve a problem because you better know what the problem is you want to solve.

Here’s the survey:

 

 

Click to access Music-Canada-National-Survey-Interview-Schedule_Release.pdf

Is @MusicReports License Pitch for @OnePeloton the Equivalent of a Poor Person’s Class Action Settlement–Without Court Supervision?

You may have gotten a version of this letter (below) from MusicReports on behalf of their new client Peloton.  (How MRI came to be involved may have more to do with some of the unsavory aspects of the NMPA/HFA conduct alleged by Peloton than it does with the apparent fact that HFA hasn’t made arrangements to have paper NOIs and statements depending on which side of the moral hazard the issue comes up.)  As Billboard also reported:

In its April 30, 2019, counterclaim, Peloton accused the publishers of anti-competitive behavior by engaging in a “coordinated effort” to fix prices and alleged that the National Music Publishers Association had conspired to prevent it from striking deals with the individual companies. A judge though dismissed Peloton’s counterclaims in January.

Which doesn’t mean that Peloton couldn’t appeal that decision, and that also doesn’t mean that NMPA probably really didn’t want them to.  Which may explain why nobody is crowing about the money settlement.

Still, there’s a real question about how this MRI offer even came up in the first place.  Both the Peloton case and the settlement of that case involves only 14 NMPA publishers according to Billboard, but carries the usual false spin no doubt coming from NMPA:

Peloton and The National Music Publishers’ Association (NMPA), the trade association representing all American music publishers and their songwriting partners, announced today (Feb. 27) that they have reached an agreement to  “fully settled the litigation brought last year by 14 NMPA members.”

So for starters, this line is entirely false: NMPA does not represent “all American music publishers and their songwriting partners“.  No matter now much aspirational slack you’re willing to cut someone who claims to represent you when they don’t (also known as gaslighting), there’s one context where you want to be really clear about that stuff–settling lawsuits in your name.  This isn’t the first time they’ve been called on the issue–it also came up in the current appeal of the streaming mechanical rates (see George Johnson papers, “‘Copyright Owners’ [is a t]erm fashioned by NSAI and NMPA, that falsely suggests that they represent all copyright owners, rather than a significant
market share”.)  NMPA has gotten in the nasty habit of telling Congress and the Courts they represent “all American music publishers and their songwriting partners.”  So that’s bullshit for starters.  Now what’s that thing that happens when you mislead a court about standing….?  The memory will jog eventually.

But that issue is brutally relevant here because of the next question:  How did a case involving 14 individual publishers get changed into what is essentially a class action settlement without a fairness hearing or court supervision?  On whose authority?  Of course, Peloton is free to make a voluntary future-facing license offer to anyone any time, but it’s interesting timing.

We haven’t drilled down on the court filings in the case–that’s coming.  But we can only assume that MRI’s offer on behalf of Peloton is phrased the way it is because Peloton did not want NMPA or HFA to be involved in the licensing pitch or the administration of the licensing funds (you’ll see why in a minute).  We haven’t seen the actual license agreement from MRI, but based on the deal points in their pitch letter, it does not appear that (1) the license is a settlement of past claims (but check that issue closely if you decide to opt in as it may be masquerading down in the boilerplate), and (2) there is a pool of money that is to be distributed to those who opt in–and if the pool is not paid out in full, the balance of the pool will be retained by Peloton and is not going to revert to the NMPA (or its members).  In other words, it’s not an MLC-style black box.

By using this pool system, Peloton is able to cap their ultimate royalty payout for indies.  For example, if the deal you never see with the 14 NMPA publishers (or others who have a direct deal) is a pay per play structure with no cap, and MRI offers you a share of a pool, there’s no cap in the pay per click flat rate structure and there is a cap in the pool.  In fact, if you are getting a share of a pool that’s offered to tens of thousands of publishers, you may eventually start to go backwards once you hit the pool cap.  Why?  Because the more publishers that opt in, the smaller the share of the pool for any one song.  Alternatively, the more hits there are, the smaller the share of the pool for the less popular songs.  That may never happen, but it’s worth noting.  That’s why this is kind of like a poor person’s  class settlement without a fairness hearing.  (Also why we have long advocated a per-play rate with no pool.)

And of course remember that this settlement only covers songs.  Songwriter artists, ask how Peloton comes to license your sound recordings or be careful that the MRI song license isn’t masquerading as a sound recording license, too.  There’s a few possible answers to that question, but be sure to ask.

Here’s the letter, we highlighted some stuff that requires futher explanation by Peloton:

Dear Publisher,

We sincerely hope everyone is keeping safe and well in these challenging times.

We are contacting you on behalf of our client, Peloton Interactive, Inc. (“Peloton”), with a license opportunity for their streamed fitness content solution, which allows subscribers to access world class instructor-led exercise and meditation classes through Peloton hardware devices and digital platforms.

This offer is the opportunity for your catalog to be featured in a platform that is part of a growing and supportive community.  [What does “featured” mean?  Can you be non-featured?]

Founded in 2012 and headquartered in New York, Peloton is the largest interactive platform that brings the energy and benefits of studio-style workouts to the convenience and comfort of home. With hundreds of classes produced monthly across twelve fitness disciplines, and a library of thousands of on-demand classes [that include thousands of songs] taught by a roster of elite instructors, Peloton delivers real-time motivation and curated playlists from the world’s greatest artists and writers.  [This sounds like pop hits, right?]  The brand’s immersive content is accessible through the Peloton Bike, the Peloton Tread, and the Peloton App, which is available for both iOS and Android, accessible via most tablets, mobile devices and computers[How is that different than webcasting or Spotify?]

Peloton is changing the way people think about health and wellness and are motivated to work out, and music is a key component of their programming, helping the instructors deliver engaging and inspirational classes in Peloton’s home fitness ecosystem. With over 2,000,000 monthly users and a comprehensive, socially-connected experience geared towards helping members reach their personal fitness potential, each class is designed to be both efficient and irresistible.  [If music is a key component…they must be paying a lot?]

For more information, visit http://www.onepeloton.com.

The main deal points of Peloton’s license offer are as follows [what are the others?]:

Grant of Rights:  Peloton is seeking the right to create, store, transmit, and publicly perform compositions in and in connection with fitness videos on its hardware and digital platforms.  [How is this not a public facing music service?]

Royalty:  Licensor’s share of two revenue pools, one based on plays of your compositionsby users of the Peloton Bikes, Peloton Tread, and other “hardware,” and the other based on plays of your compositions by users of the Peloton App, each of which are calculated at different rates depending on currency of the territory involved (please see the license for details).  [Why do the rates depend on the currency?  How are these tracked?  Probably not very well since they got sued.]

Accounting & Payment:  60 days following the applicable calendar quarter. [60 days?  60?  Really?  And why not monthly? They left out an audit right, check the license.  We can almost guaranteed there is no audit right.]

Territory:  Worldwide [how does this work with foreign societies?]

Term:  Three years following the Effective Date with one year auto-renewals.

Takedown Rights:  As soon as possible, but in no event later than 30 days of receipt of notice or the identification of the relevant Composition; provided, that the takedown request is made on a non-discriminatory basis. [This is essentially a waiver of statutory DMCA takedown rights (if DMCA even applies to Peloton) and creates a new safe harbor for Peloton.  Bad bad bad….]

To review and consider Peloton’s license offer:

Click HERE to log into your MusicReports.com account and review the proposed license agreement. If it is acceptable to you, simply check the box to confirm you have read the agreement, then click the “I Agree” button to accept the terms. You can then download a full copy of the agreement from the “My Licenses” page in your account.

If you need help accessing your account or setting up an account for the first time, contact RoyaltyServices@MusicReports.com

If you have any questions specifically about the opt-in license offer, please send your inquiry to LicenseOffers@MusicReports.com

Best regards,
Music Reports, Inc.

What it looks like is that Peloton is making a pitch that is not approved by any court that is going out to all the publishers (and indie songwriters) that are not represented by NMPA.  Which based on the Spotify, pending and unmatched and YouTube settlements implies that there may–may–be another bucket of settlements that the NMPA did have the authority to make that were both retroactive and future licenses.  But you’ll never know that.

The fact of the Peloton offer is further confirmation of the reality that the NMPA does not “represent” (as in have the authority to speak or negotiate for)  “all” songwriters and publishers.  If they did, wouldn’t this be structured like the Spotify and pending and unmatched settlements?

The really great news is that the head of music for Peloton is going to be speaking at the AIMP webinar today and hopefully he can answer these questions.  Starting with whether Peloton infringed indie publishers copyrights.

Reality is that Peloton is trying hard to get it right, and should never have been sued in the first place, particularly when there are actual criminals like TikTok in the market that has no publishing licenses whatsoever.  There’s where your litigation budget should be getting spent, not chasing exercise bikes.

Attention BrewBros: @SenThomTillis Asks Nicely That Internet Archive Stop the “National Emergency Library” Sham — Music Technology Policy

MTP readers will no doubt have been following the absurd “National Emergency Library” scam that anti-artist activist Brewster Kahle is pushing to the great satisfaction of the BrewBros.  BrewBros based the “National Emergency Library” on a “superpower” interpretation of fair use (no, that’s really what they said) that is yet another example of a very Googlely  weaponization of fair use.

The BrewBros have caught the attention of Senator Thom Tillis, chair of the U.S. Senate Judiciary Committee Subcommittee on Intellectual Property, who sent this letter into the heart of darkness today, which should finally provoke the Google lobbyists to come out into the daylight (looking at you, Matt):

Mr. Brewster Kahle
Founder and Digital Librarian
Internet Archive
300 Funston A venue
San Francisco, CA 94118

Dear Mr. Kahle:

I write to you as Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, following the Internet Archive’s recent announcement of its National Emergency “Library” initiative amid the coronavirus pandemic. The Subcommittee has jurisdiction over our nation’s intellectual property laws, including copyright law. As you may know, in February my Subcommittee began a year-long review of the Digital Millennium Copyright Act with an eye toward reforming it for the twenty-first century.

I recognize the essential nature of books and publishing efforts during these challenging times. As schools, libraries, and bookstores have closed their physical locations across the nation, continued access to books is important to ensure that students and teachers have the materials they need for remote learning. It is also important that the general public has access to various types of books and written materials. I have been encouraged to see authors, publishers and other copyright owners ease these struggles of students, parents, educators, and the general public. Among other efforts, they are providing valuable content and online courses for free, providing flexible licenses for distance learning and enjoyment, and extending access to audiobooks and e­books. These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest.

As you can see, I deeply value access to copyrighted works, but that access must be provided within the bounds of the law-even during a national emergency. I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your “Library” is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.

As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.

Sincerely,

Thom Tillis
Chairman
Subcommittee on Intellectual Property

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.