thetrichordist

The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland

We at the Trichordist are expecting another push at so-called “orphan works” legislation in the U.S. Congress during the upcoming legislative session. We take a dim view of the “orphan works” theory–it seems to be yet another way of undermining copyright through a back-door safe harbor. If the last effort at “orphan works” legislation was any guide, it will another excuse for copyright infringement–if the infringer doesn’t quite qualify for a “fair use” defense, then they will say that their use of the infringed work is an “orphan” because they tried really, really hard to find the copyright owner, but couldn’t quite seem to find them. We think that “orphan works” puts the fox squarely in the henhouse, and is another clear example of the law creating another moral hazard to the detriment of artists.

We have a lot of readers in the music business, and people in the music business often think that “orphan works” don’t affect them–we have all these databases after all. That places an awful lot of trust in the infringer. Remember–Google specifically asked the Copyright Office to consider users of “millions” of orphan works and the outside counsel for Google seems to be parking the orphanworks.com domain on the EFF’s servers. Still want to be so trusting? What about Google getting 3 million DMCA notices a week for search alone suggests that artists should trust the system? Keep this thought in mind as you read the article: If orphan works represent a market failure, how can you have a market failure without a market, and how can you have a market without enforceable property rights?

We are pleased to be able to serialize an excellent article about the history of the “orphan works” movement in the U.S. written by the distinguished illustrator, Brad Holland. We encourage readers to make common cause with the illustrators and photographers who will likely be most harmed by this specious legislation backed by Google the last two times it appeared in the Congress. The article first appeared in the Journal of Biocommunication in 2010.

Part 1: Trojan Horse: Orphan Works and the War on Authors, by Brad Holland

About the Author

Brad Holland is a self taught artist and writer whose work has appeared in Time, Vanity Fair, The New Yorker, Playboy, Rolling Stone, the New York Times and many other national and international publications. His paintings have been exhibited in museums around the world, including one-man exhibitions at the Musée des Beaux-Arts, Clermont-Ferrand, France; the Museum of American Illustration, New York City and the Torino Atrium, Turin, Italy. His satire of the art business, “Express Yourself, It’s Later Than You Think,” first published in The Atlantic Monthly, has been widely republished, both in print and on the Internet. In 2005 he was elected to the Society of Illustrators Hall of Fame.

“During a career that has stretched over three decades,” wrote Steven Heller in Print Magazine, October 2002, “Brad Holland has changed the way illustration is perceived and practiced. By the late ’60s he had helped transform a profession of renderers into one of conceivers, challenging editors and art directors to let him create images that complemented rather than mimicked texts.” In 2000, the editors of the artists’ directory RSVP voted Holland “the one artist, who in our opinion, has had the single greatest impact on the illustration field during the last twenty five years.” Holland has won more awards presented by the New York Society of Illustrators than any other artist in its long history. The American illustrator Mark English has called him “the most important illustrator in America today.”

In the last decade, Holland has become an outspoken advocate for artists’ rights and is a founder of the Illustrators’ Partnership of America. In 2005, he represented artists at the Orphan Works Roundtables held by the US Copyright Office; in 2006, he testified before the Intellectual Property Subcommittees of both the US House and Senate, and in 2008 he and medical illustrator Cynthia Turner led the opposition to the Orphan Works Act of 2008. It was through their lobbying efforts that the US Small Business Administration acted to conduct its own Orphan Works Roundtable at the Salmagundi Club in New York City, August 8, 2008.

Holland is featured in the documentary, “Citizen 3.0 Copyright, Creativity and Contemporary Culture,” available at www.kinobserver.com and his article, “First Things About Secondary Rights,” published by The Columbia Journal of Law and the Arts is available at weblog.ipcentral.info/holland_ColumbiaLaw.pdf

Holland’s blog, Poor Bradford’s Almanac, can be accessed at http://www.drawger.com/holland/?article_id=9022

Introduction

In 2004, lawyers at the US Copyright Office adopted a premise of the anti-copyright lobby that the public is being harmed because some people lack sufficient access to other people’s copyrighted works. In 2006 they released the results of a year-long study, announcing that they had documented evidence of a “market failure” so serious that Congress should amend existing copyright law to spare the world the loss of valuable cultural works.

The changes they proposed would effectively redefine each and every creative work as a potential “orphan,” unless the author takes steps to register it with new commercial registries yet to be created in the private sector. This would reverse the automatic protection currently guaranteed by the 1976 Copyright Act. Yet this radical change to a law protecting private property was to be enacted not by a transparent Congressional debate over new legislation, but through the Trojan Horse of an Orphan Works Amendment that would serve to emasculate the penalties for infringement whenever an infringer believed that he or she had made a “reasonably diligent” but unsuccessful effort to find the rightsholder.

Twice (in 2006 and 2008) the bill’s sponsors have tried to ram this legislation through the US Congress. The last time they nearly succeeded by means of backroom deals. Both times the legislation was stopped by an aggressive opposition campaign led by artists and photographers. Although the legislation’s stated purpose has been to let libraries and museums digitize their archives of old work, the bill would actually permit the widespread commercial infringement of work created by contemporary artists and ordinary citizens. While supporters say the bill would help users find artists so that artists can be paid, the provisions would undermine every artist’s exclusive rights, devalue works in derivative markets, breach contracts past and present, and expose every citizen’s intellectual property to unwanted changes and uses.

When spelled out like this, it’s hard to see why anyone would want such legislation. But if we go to the heart of the matter, we’ll see why some special interest groups have invested so much time and money in the effort.

Harvesting Orphans

The Internet has made it possible for entrepreneurs to create financial empires by supplying the public with access to copyrighted material. The problem for these enterprises is how to cheaply acquire the legal right to license other people’s intellectual property. By redefining millions of copyrighted works as orphans on the premise that some might be, this legislation would allow Internet content providers to profit by harvesting the works this law would orphan, providing their online databases with marketable content they could never afford to create themselves nor license from authors.

To justify this mass transfer of intellectual property from individuals to corporations, scholars of the anti-copyright lobby have whitewashed it as a long-overdue public service. Taking a page from postmodern literary criticism, they argue that individual authorship is a “romantic myth,” suggesting that all creativity comes from the masses and that a change in the law is therefore necessary to give the masses access to their communal property. In this theory then, big Internet corporations would merely be sharing the property of ordinary citizens with other citizens for the greater good of the public.

The idea of a left-wing literary theory employed in the service of a potential corporate rights grab may strike some as incongruous. Yet the fight over this bill is merely one battle in a gathering war on authors that has united opportunists of the right and left. Surprisingly, this effort was launched by a government agency long thought by many to be author-friendly. So to understand the symbiotic relationship that has made left-wing theorists the Remoras of big business, we need to look closely at the document that’s routinely used to justify the amendment: the US Copyright Office’s 2006 Report on Orphan Works.

The Myth of the Big Chill

Public Knowledge is a Washington-based “advocacy group” with a Six Point Plan to “reform” copyright law.¹On May 29, 2008, its President and co-founder Gigi Sohn, addressed the 8th Annual Intellectual Property Symposium at the Center for Intellectual Property at the University of Maryland University College. In her speech she presented the official account of how the Orphan Works bill had risen out of the foamy sea of copyright chaos.

“At the urging of libraries, museums, academics like American University Law Professor Peter Jaszi, and advocacy groups like Public Knowledge, the Copyright Office sought public input on the orphan works problem and suggestions for how to deal with it. After receiving some 850 comments from a wide variety of stakeholders, the Copyright Office in 2006 issued a detailed report that showed that there was ample evidence that users were chilled from using works under copyright when they could not find the holder, and that as a result, millions of works were not being used. The Copyright Office proposed a framework for solving this problem that has, for the most part, become the basis of the current legislation.” (Italics added.)²

This official line has become the standard talking point supplied by the Copyright Office to Congressional lawmakers and by lawmakers to their constituents. If you’re one of the tens of thousands of copyright holders who’ve already written Congress to protest this bill, you’ve probably received a version of the talking point in your Congressman’s reply: Congress will do what’s best for all parties and rely for guidance on the detailed Orphan Works Study conducted by the Copyright Office.

But what if this “detailed study,” with its inference of millions of “chilled” copyright users, was based on no more “evidence” than 215 anecdotal letters? What if its legislative “framework” was written not after the year-long study, but before it? Here are the facts. In 2005 the Copyright Office published a Notice of Inquiry³ requesting comments from interested parties on the specific subject of orphaned work. It did not inquire about the workings of commercial markets, and there is no evidence in its subsequent report that business clients have any substantial difficulty finding the authors they wish to work with. While it may seem heretical to suggest that the Copyright Office report contains no evidence to justify its sweeping recommendations, the fact is it doesn’t. How it came to be accepted as an important study requiring the overturning of existing copyright law is quite a story.

A “Paucity of Data”

In its 2006 Report on Orphan Works, the Copyright Office reported “an overwhelming response” to its “year-long study.” The Register of Copyrights testified to Congress that it “documents the nature of the orphan works problem, as synthesized from the more than 850 written comments we received.” ⁴In a nation of more than 300 million people, 850 letters might not seem like an “overwhelming response.” Yet read the Report itself, and we learn that at least 600 of those letters had to be discounted as irrelevant. Here’s how the Copyright Office itself characterized the results:

Page 17: “The [Copyright] Office received an overwhelming response (by comparison to past studies), receiving 721 initial comments, and 146 reply comments [for a total of 867].”

Page 21: “A large portion of the comments (about 40%) did not identify a specific instance where a copyright owner could not be identified or located.

“Another portion (10%) presented enough specific information for us to conclude that the problem presented was not in fact an orphan works situation.

“Still, approximately 50% of comments did contain information that could fairly be construed as presenting an orphan works situation, and a significant number of those comments (about 45%, or about 24% of all comments) provided enough information about a specific situation for us to conclude that it presented an orphan works situation.” (Italics added.) ⁵

Twenty four percent of 867 letters equals 215. This means that even by counting “reply comments,” there were no more than 215 letters to the Orphan Works study that could even “be construed” as relevant to the subject. While the President of Public Knowledge has said these comments came from “a wide variety of stakeholders,” it appears they overlooked the stakeholders with the greatest stake of all: authors. Instead, most of the comments appear to have been generated by appeals such as this one, from the College Art Association to its members:

“As you may already know, the U.S. Copyright Office is soliciting formal comments from the public on the problem of ‘orphan’ works… If successful, this initiative could significantly help artists, scholars, and others who use copyrighted images and texts in their creations and writings… In order to make a strong case to the Copyright Office, we need anecdotes – as many as you can think of – about specific instances where scholars or artists have had difficulty using copyrighted materials because the copyright holder cannot be located.” (Emphasis added) ⁶

By telling artists, scholars, and others that they would “significantly help” creators by flooding the Copyright Office with such anecdotes, what artist, scholar, etc. would not want to help by responding? One wonders though, how accurate is the implication that a scholar’s “inability to locate a copyright holder” could lead to legal peril. In fact, it appears to be at odds with the truth. As the drafters of the 1976 US Copyright Act made clear:

“[I]t is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights.” (Emphasis added.) U.S. Code, House Historical and Revision Notes Report No. 94-1476, at 136 (1976) ⁷

We can’t know how many of the 215 “relevant” letters were generated by appeals from such groups as the College Art Association, or how many were based on misinformation regarding the latitude of “fair use” available to copyright users. Yet even if every single letter of the 215 represented a legitimate “orphan works situation,” it would hardly qualify as “ample evidence” that “millions” of potential users are being “chilled from using works under copyright.” In fact, as David Rhodes, President of New York’s School of Visual Arts has observed:

“[I]n its report the Copyright Office provides little or no evidence that there is in fact a problem. There is no systematic review of the various markets to see if they are in fact dysfunctional. All of the supposed examples of the harm caused by orphan works are clearly anecdotal and in a country of 300,000,000 fall far short of the threshold for serious consideration. The Copyright Office’s own paucity of data should lead one to conclude that ‘Orphan Works’ are not a problem at all.” ⁸

Of course, that’s not what the Copyright Office concluded.

To Be Continued….

Footnotes

Gigi B. Sohn: “The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps,” Presented to the Center for Intellectual Property 8th Annual Intellectual Property Symposium, University of Maryland University College May 29, 2008 http://www.publicknowledge.org/node/1594
ibid
United States Copyright Office, Library of Congress, Notice of Inquiry on Orphan Works, [Federal Register: January 26, 2005 (Volume 70, Number 16)] [Notices] [Page 3739-3743] http://www.copyright.gov/fedreg/2005/70fr3739.html
Register’s testimony on the “Orphan Works Problem and Proposed Legislation” before the Subcommittee on Courts, the Internet, and Intellectual Property; Committee on the Judiciary; United States House of Representatives March 13, 2008 http://www.copyright.gov/video/testimony-3-13-08.html
Report on Orphan Works, A Report of the Register of Copyrights, January 2006 United States Copyright Office http://www.copyright.gov/orphan/orphan-report.pdf (Note: download is 133 pages.)
College Art Association. This website appeal is available at: http://web.archive.org/web/20050319091445/www.collegeart.org/orphan-works/
and the emailed appeal to members can be accessed as a re-post at:
http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=H-New-Jersey&month=0503&week=a&msg=+ByJSt4DOW0FQI+t+wMbZg&user=&pw
U.S. Code, House Historical and Revision Notes Report No. 94-1476, at 136 (1976) http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000302—-000-notes.html
David Rhodes, President, School of Visual Arts, U.S. Small Business Administration Roundtable on Orphan Works Legislation, August 8, 2008

December 23, 2012December 23, 2012 by thetrichordist

Music Technology Policy

The Seattle Weekly’s Chris Kornelis has a thoughtful article today asking why artists came together to oppose the so-called Internet Radio Fairness Act but haven’t consistently been a united front against the unprecedented levels of online theft we’re all too familiar with (read “It’s Time for Artists to Fight Piracy as Vigorously as They’ve Challenged Pandora“). This is actually a very insightful point because the alliterative piracy and Pandora are more connected than one might think.

Catching Up to the Google Propaganda Machine

Kornelis mentions David Lowery’s “Letter to Emily” which was almost universally received as a balanced and courteous discussion of the underpinnings of piracy as a culture and pointed out how successfully Big Tech has attempted to commoditize music and movies in order to sell hardware and Internet access. Nowhere is this more prevalent than Google, which has built an entire litigation and lobbying…

View original post 1,177 more words

December 20, 2012 by thetrichordist

Happening now…Google is using crony capitalism to dodge another threat to its monopoly.

Music Technology Policy

According to MLex, the Federal Trade Commission is preparing to allow Google to submit a non-binding letter that will describe a few things Google is willing to do to get out of the pesky FTC investigation into its business. Bowing and scraping to Google…well, maybe not scraping…the FTC is taking an unprecedentedly lax approach that reeks of political favoritism and crony capitalism.

The letter makes no mention of the most serious complaint against Google, which alleged the company deliberately biased its search results to favor its own products….Under the normal settlement procedures, FTC staff draft a consent order with legally binding commitments by which a company must abide….[T]he public can submit comments on the settlement before it is finalized….In the absence of a consent order, companies opposed to the resolution of the Google probe likely won’t have the opportunity to provide formal public comments….Independent observers said privately that they…

View original post 48 more words

December 18, 2012 by thetrichordist

Songwriter comments on Section 115 Rulemaking

We’ve been reviewing the comments posted on the Copyright Office website regarding the accounting regulations for Section 115. We are humbled that so many of you used our post as a guideline for your own comments, and we learned a lot from all of you. Thank you. Thank you for your thoughts and thank you for helping to take ownership of our future.

We thought you might be interested in reading comments from Lisa Thomas Music Services (publisher for independent songwriter/recording artists such as Don Henley and Glenn Frey of the Eagles, Randy Newman, Janet Jackson, Walter Becker of Steely Dan, Ray D. Parker, Jr., Mary Chapin Carpenter and Bonnie Raitt, among others), songwriters Danny O’Keefe , Michelle Shocked, Don Coyer, and Bob Regan as well as David’s comment. All of these songwriter’s thoughtful comments are part of the public record now and are up on the Copyright Office site, but we’ll reproduce David’s comment here:

December 10, 2012

Tanya M. Sandros
Deputy General Counsel
U.S. Copyright Office
101 Independence Ave. S.E.
Washington, D.C. 20559-6000

Re: In the Matter of the Mechanical and Digital Phonorecord Delivery Compulsory License, Proposed Regulations for Reporting Monthly and Annual Statements of Account for the making and distribution of phonorecords, Docket No. 2012-7

Dear Ms. Sandros:

I am David Lowery and I founded the bands Cracker and Camper Van Beethovan. I am also an instructor in the Music Business Program at the University of Georgia at Athens. I am writing to you regarding the proposed regulations for statutory licenses for mechanical royalties. These views are my own and should not be attributed to anyone else.

Other comments will address each of the proposed regulations, but I wanted to give you some general thoughts based on my experiences as a songwriter and music publisher. I want to emphasize that I am all for making music licensing easier, but am concerned that the Copyright Office get a clear picture of what it’s like for songwriters, especially independent songwriters, to live with the laws you make.

1. No Audit: As a songwriter, I have no idea whether I am being paid correctly by any digital service and I am not allowed to audit them. As far as I know, no digital service complies with the rules anyway, so it almost doesn’t matter whether the Copyright Office keeps them the same or changes the rules. This is untenable. When I gave a mechanical license to my record company, I could always audit the label’s mechanical royalty accountings if I chose to do so. Let’s be clear—the new boss is way worse than the old boss. If statements from digital services could be at least as bad as record company accountings, it would be a major step forward.

Respectfully, I would suggest that the Copyright Office should be working especially hard to provide songwriters with a good analog for a royalty audit.

2. Bait and Switch: I routinely receive a “notice of intention to use” my work that is always late. This violates the basic rule of statutory licensing. The “NOI” I receive often comes with a letter asking me to log into a website to see if I am owed money by the digital service or how much I am owed. When I go to the website I am asked to “sign” a click through agreement that makes significant changes to the few statutory rights I have. This is the worst kind of trickery and is worse than the worst direct mail campaigns because I can always throw away the junk mail. This trickery involves my life’s work and I’d rather not throw it away.

I respectfully suggest that the Copyright Office should expressly prohibit anyone who uses the statutory license from further burdening songwriters by trying to trick them into a click through agreement that makes them give up the rights the songwriter is entitled to under the Copyright Act.

3. Minimum Amount for Payment: Digital services sometimes issue a check for one penny along with the bait and switch trick license—yes, $0.01. I have no idea why they send a penny check, but I assume it has something to do with proving they paid for the rights they get in their click agreement. I also understand from songwriter friends that it is pretty common to get penny checks. So if these services can send a penny check when it benefits them, then why do I have to wait to earn $50 before I get paid? And what about the bait and switch technique is supposed to give me confidence that these services will ever pay my $50 and how would I ever know what my earnings were if I can’t audit?

I would respectfully point out to the Copyright Office that these services chose to get into the music business and they have known for over a decade what their obligations are. They save a bunch of money by using the statutory license instead of direct licensing, and I do not understand why they cannot simply pay what they owe when they owe it like everyone else is supposed to do.

4. Black Box: If I am lucky enough to get a certified statement from a CPA, I have no way of knowing if the CPA ever looked at my earnings or if there are any “black box” earnings that I’m entitled to. Given that I get no certifications and no audits, there’s no telling how much money should have been paid that wasn’t.

I respectfully suggest that the Copyright Office work with CPA associations to find clear guidelines for CPAs to follow that make the services pay out 100% of the money owed to songwriters or give it to the State unclaimed property agencies like an unclaimed utility deposit.

5. Don’t Protect Scofflaws: I am not convinced that these services have gotten all these mistakes done without a plan. Some may be innocent mistakes, but some seem very calculated. Respectfully, the Copyright Office should not allow services who have never complied with the law to get protection of the laws they have evaded.

Thank you for this opportunity to hear from me and other songwriters on this important issue.

Sincerely,
David C. Lowery

December 12, 2012December 12, 2012 by thetrichordist

What Can Songwriters Do: Copyright Office Comment Period Ends Today for Mechanical Royalty Statements of Account

The Copyright Office public comment period for statements of account on mechanical royalties closes tonight, so there’s still time for songwriters to post comments about the proposed regulations.

The new regulations apply to the license that some services like Spotify rely on for on-demand streaming as well as the new categories of statutory licenses that the Copyright Royalty Judges are expected to approve any day now. It’s probably hundreds of millions of dollars–and we have no idea whether it ever gets paid or paid right.

Seem like a big number? Not really when you consider that services like Spotify launch with millions of tracks and those require millions of mechanical licenses for on demand streaming. They could go to the publishers and songwriters for a direct license, but they prefer to “carpet bomb” notices to songwriters. If you ask a big publisher they will tell you that they receive hundreds of thousands of these notices every year–and 95% of them are filed late and should be terminated.

One thing the regulations required is that online services have to send songwriters a monthly statement of account certified by an officer of the retailer company as correct. As far as we can tell, this has never happened. Why? Because a “certification” means that the officer of the company is taking responsibility for the accurateness of the statement. Personal responsibility. This is exactly the reason why the law requires the certification and exactly the reason why no one has done it as far as we can tell.

The law also requires that a CPA certify the statements on an annual basis. This has been done once that we know of.

Bear in mind–these licenses have been in place for 10 years. No certifications in 10 years. And now the retailers are asking for yet another break through the Digital Media Association (you’ll remember them from IRFA and trying to screw ASCAP songwriters).

Oh, and by the way–you are prohibited from auditing any service that uses the statutory license and the best you can rely on are these certifications and the CPA auditing the retailer’s financials.

We here at the Trichordist think that there are certain aspects of the way that big tech companies have handled the mechanical royalty process that is absolutely horrendous, particularly for indie writers, but truly for everyone.

We want to encourage you to write your own comment. It can be a letter, you don’t have to be a lawyer or hire one. If you want to read what other people are saying, you can read the first round of comments at this link: Initial Comments on Statements of Account.

When you get it written, you can file it at this link: Copyright Office Electronic Filing Page

In particulary, you might want to read comments from Bob Segar’s publisher, Gear Music or Austin attorney Chris Castle.

Here’s a few reasons why that you might consider in writing to the Copyright Office:

1. No Audit: As a songwriter, I have no idea whether I am being paid correctly by any digital service and I am not allowed to audit them. This is untenable.

2. Publishers Clearing House: I routinely receive a “notice of intention to use” my work that is always late. This violates the basic rule of statutory licensing. The “NOI” I receive comes with a letter asking me to log into a website to see if I am owed money or how much I am owed. When I go to the website I am asked to sign a click through agreement that makes significant changes to the few statutory rights I have. This is the worst kind of trickery and is worse than the worst direct mail campaigns because I can always throw away the junk mail. This trickery involves my life’s work!

3. Black Box: If I am lucky enough to get a certified statement from a CPA, I have no way of knowing if the CPA ever looked at my earnings or if there are any “black box” earnings that I’m entitled to. Given that I get no certifications and no audits, there’s no telling how much money should have been paid that wasn’t.

4. Don’t Protect Scofflaws: You cannot allow services who have never complied with the law to get protection of the laws they have evaded.

December 10, 2012December 10, 2012 by thetrichordist

Congressional Research Service Memo on Constitutionality of IRFA Section 5

Senator Ron Wyden and his staff director Jayme White were kind enough to ask the Congressional Research Service to conduct a legal analysis of the concerns regarding Section 5 of the so-called “Internet Radio Fairness Act” that we have raised on Trichordist and that David Lowery raised directly with Senator Wyden at the Future of Music Coalition Policy Summit in Washington on November 13.

You can read the entire memo here, but the part that interests us the most is this section:

David Lowery, writing for the Thetrichordist.com, has argued that “Section 5 of IRFA is perhaps the most pernicious part of the bill, for it would make it illegal for anyone to criticize digital sound recording licensees. If IRFA becomes law, artists and artist organizations will need to watch what they say in public in opposition to [certain licensees’]direct licensing efforts.” It seems that Lowery takes issue with the use of the words”any action” that would”prohibit, interfere with, or impede”negotiations.

He argues that these terms are too broad and could apply even to those who would criticize licensees for attempting to negotiate direct licenses with copyright owners. Another concern cited by Lowery in opposition toSection 5 is the ambiguity inherent in the language “any copyright owners acting jointly.”

This language does not necessarily seem to be limited to large member-based royalty collection organizations like SoundExchange. It may be broad enough to encompass, for example,the members of an individual band, who might be considered to be individual copyright owners, acting jointly. Under this broadreading of the language, an argument could be made that a band, posting its criticisms of direct licensing negotiations between a licenseeand a copyright owner, would betaking an action that would interfere with a direct licensing negotiation, therebyviolating Section 5.

Though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one. It is possible that the language may be broad enough to cover a blog post by a band expressing their opinion regarding contract negotiations between a licensee and a copyright owner. Nonetheless, it seems unlikely that, in practice, Section 5 would impinge upon First Amendment rights….

But it’s not “implausible.”

November 29, 2012November 29, 2012 by thetrichordist

Austin readers of Trichordist please save the date! David will be speaking in Austin tomorrow night, see this post for details!

Four Nights of Music Rights

Can you believe that we made it to Meeting 4!!

October 30: Music Clearances for Tech Startups and Artist Rights: Do Good Business and Protect Your Work

Guest Speaker: David Lowery, of Cracker and Camper Van Beethoven and editor of The Trichordist, on artist rights.

Band Basics Mini-Topic: Bank accounts, bookkeeping, taxes, health issues and insurance coverage. Staying Healthy: SIMS Foundation and HAAM Guest Speaker: Jennifer Stowe, Director of Services, Health Alliance for Austin Musicians

Please register at this link.

View original post

October 29, 2012 by thetrichordist

Sign the @musiciansunion (AFM) Letter: Friends don’t let friends get IRFA’d!

If you’ve been following the growing opposition to IRFA, the Internet Radio Fairness Act (aka the “Pandora Shakedown Act”), you won’t be surprised to know that Pandora has now enlisted the Über National Association of Broadcasters to help them screw musicians. (NASDAQ: P)

You’ll remember the NAB–they are the ones who led the dirty tricks campaign against the Performance Rights Act that would have really leveled the playing field by paying American musicians and singers for the same rights that every other country pays them for when records are played on the radio.

So it’s not surprising to see Pandora lining up the lobbying muscle and huge political donations of the dreaded NAB, one of the few trade associations that has a news outlet in every Congressional district.

Do we just have to take it and get bullied? Not without fighting back.

Here’s a start, a few things you can do:

First–make sure you and your band are registered to vote. Can I Vote? is a good place to start if you’re not. If you’re going to be on the road on election day, be sure you find out about early voting or getting an absentee ballot.

You can look up your representative at Tweet Congress and tweet them to vote against IRFA.

You can follow us on Twitter and search for #opposeirfa, then you can decide if you want to retweet our tweets or RTs to Members of Congress, especially members of the House and Senate Judiciary Committees, or

You can use the letter to Congress interface that the American Federation of Musicians has put together for you. The link will lead you to an interface to enter your zip code to find out who your representatives are, then it pulls up an editable suggested form letter. You can either use that letter or write your own using the web page.

And remember–friends don’t let friends get IRFA’d!

October 1, 2012October 2, 2012 by thetrichordist

Safe Harbor Not Loophole: Five Things We Could Do Right Now to Make the DMCA Notice and Takedown Work Better

By Chris Castle

There has been considerable discussion about how the DMCA notice and takedown procedures are “broken.” We don’t think that this is quite true—the procedures are manipulated, misunderstood and abused on a grand scale. That doesn’t mean that the notice and takedown procedure is “broken” any more than the laws against burglary, theft and tax evasion are “broken.” No statute can control unethical behavior by those who use the law as a flimsy excuse to get away with bad behavior.

Many Internet companies have interpreted the DMCA to permit bad behavior until the victim of the bad behavior notified the bad actor that they were behaving badly—each time they behaved badly. This “catch me if you can” interpretation of the DMCA was not at all what the Congress had in mind. We would go further and suggest that not only was it not what the Congress had in mind, it also wasn’t what the participants in the discussions and negotiations and drafting of the statute had in mind, either.

A review of the history suggests that the true purpose of the DMCA notice and takedown procedure was to provide a little latitude to reasonable actors acting reasonably. There is nothing—nothing—in the legislative history that suggested that key legislative leaders were ever thinking that any one company would receive a million notices in a year, much less a million notices in a week, week after week after week. (Google recently announced that it receives a million notices a week for search alone.) [Editor note: Since we first published this post in 2012, Google now receives more like FIVE MILLION NOTICES A WEEK!]

What is in the history is that the purpose of the DMCA was to provide a relatively low cost alternative to litigation for both creators and Internet companies when creators spot an unauthorized use of their work which should be a rare occurrence—and we think should be accorded a little latitude if reasonable people are acting reasonably. That’s what a safe harbor is for—and the DMCA was intended to create a safe harbor, not a loophole.

There is also a threshold qualification to getting the safe harbor in the first place: The site operators shouldn’t actually know or have reason to know that there is infringement occurring on their premises. If they find that some users are repeat infringers, the site needs to take them off. Sounds fair, right?

Actual knowledge is the kind of thing that was documented in the Viacom v. YouTube and Isohunt discovery. Having reason to know is called “red flag” knowledge, that you have so many indications that infringement is going on that it’s like someone is waiving a red flag in your face that anyone could see. Like if you got a million notices a week that infringing was going on.

Another problem is that we have heard that some companies take the position that in countries where there is no safe harbor, they “deem” US law to apply. Aside from the obvious cultural arrogance, if you ask the local courts and lawmakers, we seriously doubt they would be so accepting of US law, so let’s not deem that US law applies. Also known as “pretending” that US law applies.

With this in mind, here are five things that could be done today to preserve the good in the DMCA without having to open up the legislation in a negotiation between artists and Big Tech—a process we think would lead to an extraordinarily mismatched negotiation given the tens—soon to be hundreds–of millions that Big Tech is spending on lobbying in the US alone. These would apply as appropriate to any of the various companies that take advantage of the DMCA safe harbors.

1. Stop Playing Games with Red Flag Knowledge: If you receive a million DMCA notices a week, you look pretty stupid if you deny you have actual knowledge, and you seem incapable of sequential thought if you deny you have red flag knowledge that infringing is occurring. A more plausible explanation of this extraordinary burden that such a system places on the economy is that the system is defective, like an exploding gas tank.

Just like a car with an exploding gas tank, the car may do a lot of good and may be useful to consumers. But not with that gas tank. That gas tank has to go. And one reason it has to go is that the car with the exploding gas tank creates an unacceptable level of risk and harm to innocent people who randomly come in its path.

What search companies should do when they consistently receive thousands of notices for a particular site is block that site from search results, not just push them down in search results and continue referring customers to them. The burden would then shift to that blocked site to prove that all those millions of DMCA notices were wrong—even though Google has acknowledged that 97% are accurate.

The reality is that these sites will slither off into the Internet to find something else to do.

2. Block the File, not the Link to the File: The point of the DMCA was to stop the infringement, that is, block the infringing material, not to stop one link to the infringement. It has been interpreted by many, if not all, offending sites or search engines to require a link by link notice, or to require that artists litigate each link to a final nonappealable judgment before the link can be disabled, much less the file can be deleted.

This is a ridiculous interpretation of the law and is solely designed to allow the site to profit from infringement for as long as possible in the hopes that the less-well heeled will simply give up.

Google is particularly well-suited to discover blocked files due to its ContentID system on YouTube. [Editor Note: In the years since this post was originally published, it has come to light that Google crawls the hash for most if not all infringing files. By blocking the hash, a single notice could take down a multiple number of infringing files. Between the fingerprint or the hash, Google could easily block infringing copies whether the copies appear on YouTube or in the wild on the Internet.] This is not a burdensome task.

3. Don’t Treat Sites that Haven’t Registered a DMCA Agent as Though They are Entitled to the Safe Harbor: You don’t get DMCA protection if you haven’t registered a DMCA agent with the Copyright Office. This costs about $150. Other countries have similar laws. Don’t act as if a site that hasn’t even registered an agent (as a threshold step to claiming the safe harbor) is the same as one that has. If search engines and ISPs act as if sites like Hotfile are entitled to the safe harbor without going through the required steps, this only protects the bad guys and trivializes the proper safe harbor protection for legitimate actors (like those same search engines and ISPs).

4. Don’t Support Automatic Reposting: Don’t support automatic reposting of links you disabled under a DMCA notice. This turns the entire process on its head because as soon as an artist goes through the expense of taking down an infringing link, the web site allows the link to be reposted automatically and then requires the artist to send the notice all over again. This is not only outside the intent of the law, it is sadistic. Another reason why major offenders need to be blocked from search results by search engines that want to be in the business mainstream.

5. Issue Google-Style Public Transparency Reports: Google’s “transparency report” is commendable and provides useful information as far as it goes. Note that the millions of notices Google reports it has received are just from the “premium” web tools it provides to heavy users. Imagine what the numbers would look like if it included notices that were sent manually and included all Google properties.

If each major search engine prepared these public transparency reports, it would be possible to prepare a list of websites that were major offenders based on the number of accurate DMCA notices received. That way, the Department of Justice could have better information on which to determine where to allocate its prosecutorial resources.

Since Google is so interested in letting the world know about the DMCA notices it receives by releasing them through Chilling Effects, surely Google will not object to organizing this part of the world’s information as well.

September 10, 2012March 24, 2016 by thetrichordist

Music Technology Policy

The Canadian bit torrent site and Geist darling Isohunt was found in 2010 to be a copyright infringer in no uncertain terms (probably because they are clearly a massive and intentional infringer). According to the Financial Post:

…Canada’s most notorious file sharing Website is facing increasing legal pressure from legal authorities in the United States.
On Thursday, U.S. District Court Judge Stephen Wilson in Los Angeles issued a permanent enjoinment against Gary Fung, the Richmond, B.C. owner of Isohunt, one of the largest BitTorrent search engines on the Internet.
The ruling comes as a result of a lawsuit launched against the Canadian Website several years ago by the Motion Picture Association of America, the group which represents the biggest movie studios in Hollywood.
According to yesterday’s judgment, Judge Wilson decided to permanently enjoin Isohunt and the 27-year-old Mr. Fung from continuing to engage in copyright infringement because the MPAA “have…

View original post 389 more words

August 7, 2012 by thetrichordist