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

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

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

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

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

Limiting Safe Harbors in Trade Agreements

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

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

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

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

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

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

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

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

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

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

Dual Class Stock

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

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

Thank you for the opportunity to comment on USMCA.

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

by Chris Castle, from Artist Rights Watch

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

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

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

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

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

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

White Riders

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

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

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

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

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

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

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

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

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