CISAC and BIEM Suggestions to US Copyright Office on MLC Oversight Regulations

We often overlook the international dimension to the Mechanical Licensing Collective created by Congress in the Music Modernization Act.  We’re not the only ones.

One of the most insightful comments in the Copyright Office’s public request for suggestions for regulations to govern the MLC came from CISAC and BIEM.

CISAC stands for Confédération Internationale des Sociétés d’Auteurs et Compositeurs.  Founded in 1928, CISAC has been working on the data exchanges and standard identifiers for songs and other non-recorded works since 1994.  CISAC created the much discussed abd widely adopted International Standard Work Code (“ISWC”) for songs.

BIEM stands for Bureau International des Sociétés Gérant les Droits d’Enregistrement et de Reproduction Mécanique.  Founded in 1929, BIEM represents mechanical collecting societies in some 58 countries.

You may not recognize those acronyms, so here is how the two organizations describe themselves in their comment:

The International Confederation of Societies of Authors and Composers (CISAC), and the International Organisation representing Mechanical Rights Societies (BIEM) are international organisations representing Collective Management Organisations (“CMOs”) worldwide1. CISAC and BIEM members are entrusted with the management of creators’ rights and, as such, have a direct interest in the regulations governing the new blanket licensing system for digital uses as well as the activities of the Mechanical Licensing Collective (MLC).

Another way to say it is that the MLC was to a large extent modeled on these mechanical rights societies with some important differences, starting with governance.  The president of CISAC is Jean-Michel Jarre, the composer.  That’s right, a composer is the president.  Just sayin’.  You may remember Jean-Michel from the #irespectmusic campaign when he was all-in early:

jean michael jarre IRM 1

Photo by Helienne Lindvall

Here’s an excerpt from the CISAC/BIEM filing that we though was important, but you should take a few minutes and read the entire thing.  It’s not very long and it includes vitally important concepts that were never mentioned in Title I of the Music Modernization Act.  The comment is spelled out very politely from people who actually know what they’re doing.  Let’s just say that independent songwriters are not the only ones who may end up in the dreaded black box.

Remember that MLC is accountable (no pun intended) for identifying and paying potentially on all songs ever written or that may ever be written that are exploited in the US under the new blanket compulsory license in Title I of MMA.  This doesn’t mean that all songs will be exploited all the time, but it does mean that MLC has chosen to be responsible for identifying every song and paying royalties to every songwriter as and when exploited–so to speak.  All with the authorization of the U.S. Congress.  Starting next January.

Good times.

Comments on Section B: Data Collection and Delivery Efforts

The correct identification of copyright owners shall be a key objective of the MLC. Regulations shall ensure the appropriate onward distribution of royalties to copyright owners, whether national or foreign, and therefore that non-US [Collective Management Organizations (“CMOs”)] are entitled to make registrations and thus, claim royalties with the MLC.

 Support the Non-Discriminatory Treatment of Foreign Rightholders

In compliance with article 5.1 of the Berne Convention guaranteeing non-discriminatory treatment between national and non-national creators, the Office should promulgate regulations that ensure rightholders of “US works”
and “non-US works” enjoy the same rights and are equally treated when their works are exploited in the US territory.

 Provide adequate means for CMOs to submit rightsholder information
Outside the US and in particular in Europe, it is common practice for creators to entrust the administration of both performing and mechanical rights to CMOs. As the history of mechanical rights collective management in Europe shows, CMOs are indispensable in the process of establishing the correct ownership of musical works (and shares of such works) on behalf of individual right holders. Oftentimes non-US CMOs are also responsible for the registration of works information licensed in the U.S. that are only sub-published, or not published at all, in the U.S. In this regard, it is essential that non-US CMOs are also entitled to make registrations and, thus, claim royalties with the MLC. Importantly, non-US CMOs (in particular BIEM Members) are normally able to contribute data in relation to work identification and to the registration of work information in the MLC’s Database with a high degree of reliability; in many cases their contributions would be necessary to supplement data submitted by DMPs.

Therefore, the role of non-US CMOs in the identification of works should be expressly foreseen by the regulations. Likewise, the role of CMOs should also be expressly foreseen by the Regulations with regards tothe proper use and implementation of data standards such as ISWC that will ultimately support the proper identification of rightsholders.

David Lowery’s Suggestions to the Copyright Office for Regulation of the Mechanical Licensing Collective Part 1

The US Copyright Office solicited comments from the public about the operations of the Mechanical Licensing Collective.  The first round of those comments (called “initial comments”) were due in November and the second round of those comments (which are called “reply comments” because they essentially comment on the initial comments) were due December 20.

All the comments focus on some central themes that seem to be on everyone’s mind which can be boiled down to oversight, oversight and more oversight.  While the DLC controls the MLC’s purse strings, the MLC has been given largely uncontrolled power over songwriters that needs to be checked by the government on behalf of the governed.

David Lowery did not file initial comments but as he notes, developments made him feel compelled to speak up in the reply comments.  We’re going to post his reply comments in four parts, and then we’ll post other commenters who we think made really good points (like CISAC and BIEM among others).  (If you want to skip ahead and read the entire comment, you can download it here.)

Comments of David C. Lowery, Notice of Inquiry for Blanket License Implementation Regulations Issued by the United States Copyright Office Concerning the Orrin G. Hatch-Bob Goodlatte Music Modernization Act of 2018

I respectfully submit these comments in response to the Copyright Office’s September 24, 2019 Notification of Inquiry and request for comments to assist the Office in drafting regulations relating to the implementation of certain parts of Title I of the Music Modernization Act.

Most relevantly for these purposes, I am an American songwriter, music publisher and member of the bands Cracker and Camper van Beethoven. I teach music business courses at the Terry College of Business at the University of Georgia and am co-author with Steven Winogradsky of the latest edition of the book “Music Publishing: The Complete Guide.” I also founded and am the principal writer of the blog The Trichordist (www.thetrichordist.com). I have testified before the House Judiciary Committee and am active in public policy discussions of the copyright law. I was briefly a member of the Mechanical Licensing Collective’s statutory unmatched funds committee, but resigned.

It was not my intention to respond to the Copyright Office request for comments on these regulations. However, several recent events changed my mind: The MLC’s selection of the Harry Fox Agency (formerly owned by NMPA) as its principal vendor; the selection of ConsenSys apparently as the cryptocurrency vendor of MLC; and the adoption by the Copyright Royalty Judges of the voluntary settlement of the initial administrative assessment after allowing the Songwriters Guild of America to be hounded out of the proceeding by the MLC while ignoring the many helpful points and suggestions made by SGA while it was in the proceeding including in its withdrawal papers.

These events range from the bizarre to the suspicious but lead me to the same conclusion—this process needs a whole lot of sunlight.

I found this language in MLC’s comments particularly troubling:

[G]iven that the MLC’s policies and procedures are still being developed with the [License Availability Date] still over one year away, the MLC believes that regulations concerning the Office’s oversight role may be premature at this time. The MLC believes that the promulgation of regulations concerning the Office’s role in overseeing and regulating the MLC’s operations and policies would be more fruitful once the MLC has fully developed its policies and procedures and is able to provide them to the Office for review.

That is exactly backwards. While the MLC may think oversight is not a fit until they decide how they wish to govern themselves with the power of the compulsory license and the biggest corporations in history behind them, the Copyright Office shouldn’t delay establishing the rules of the road.

The MLC is rapidly becoming a self-licking ice cream cone wrapped in cronyism inside a cryptocurrency. The Copyright Office is in a position to turn this erosion of MLC’s statutory mission back to the light and away from “new boss-ism” as in “meet the new boss, worse than the old boss.”

It seems impossible to ignore the fact that the MLC quango has announced their selection of vendors in a news dump over the Thanksgiving holiday. Having selected the Harry Fox Agency and a cryptocurrency outfit as best of breed vendors, I would expect both the substance and the process of this selection to be fair game for a comment about the MLC, its operations and, of course, its management.

I am reminded of James Madison’s warning in Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Notices of Blanket and Nonblanket Activity

The Office’s request for comments on notices must be seen in light of the subsequent selection of HFA by the MLC. The implications from the MLC being permitted to select their cronies at HFA as a vendor comes up in many places in the Office’s request for comments. In terms of notices, I assume that HFA will be permitted to continue with its business practice of representing both copyright owners and digital music services, most specifically Spotify. In other words, HFA will be on both sides of the same transaction, a clear moral hazard and conflict of interest. Further if HFA is going to continue to collect money from services and pay songwriters, what is the point of inserting a $60 million-dollar layer of MLC bureaucracy in the middle of this transaction? In economic terms this appears to be pure “deadweight loss.”

The MMA clearly envisioned that the establishment of a single MLC would create market efficiency in music licensing. The selection of HFA as a vendor makes a mockery of the MMA by making the market less efficient, and essentially turns the MLC into a parasitic middleman. This is an “own goal.”

At the outset, I must respectfully say that I have first-hand experience with the HFA work product in two different class actions against HFA tech clients. In addition to my two class actions, there have been seven significant lawsuits that I am aware of brought against Spotify, an HFA client. All these lawsuits have similar facts—they were brought by (1) independent publishers that (2) opted out of the “settlement” between Spotify and the National Music Publishers Association and (3) whose claims were summarily ignored until they sued.

In my case, after I sued Spotify I received non-compliant NOIs from HFA (as Spotify’s agent) relating to songs at issue in the case that were backdated approximately five years. These notices were sent from an address that HFA would not have until several years after the back date and that were signed by an officer of Spotify who had left his job over a year before the mailing date. I don’t know what kind of game they were playing—perhaps trying to trick me or my business manager into cashing a paltry check they would argue indicated my acceptance of their license. It didn’t work, and the rest is history.

I have nothing personal against HFA and I actually placed part of my catalog with HFA for administration to see how they would do. At this writing, the jury is out.

I can also not ignore the fact that the entire MLC selection process appears from the outside to be a giant Kabuki dance to cover up business as usual with the reunion of the NMPA with the HFA unit they just sold off. I think it’s fair to say that I’m not alone in raising these questions, which relate directly to the Copyright Office’s questions and the initial round of comments from several commenters.

Public Test of Operability

The following responds to the Office’s questions about usage and reporting requirements.

The MLC announced with no oversight or explanation that is has selected HFA as one of its principal vendors. Because the MLC dragged their heels on disclosing who their vendors would be, the Copyright Office was forced to designate the MLC before the MLC announced its vendors. The Office was therefore largely buying a pig in a poke—as were all songwriters in the history of music. The Office (and the Congress) unintentionally empowered the MLC to essentially do whatever it wanted to fulfill its statutory mandate. The MLC chose HFA in what may be the least suspenseful announcement of the decade.

Respectfully, I think that when the Copyright Office reflects on that decision in a few years, it will be shown to have been a mistake or I will be shown to have been a goat. If HFA works out, I will be happy to be a goat. But if it doesn’t, the bill for both these decisions will come due—and the services won’t be paying that one. Self-published songwriters will be paying with missing or miscalculated royalties.

There have been many notable lawsuits brought against services since I filed my class action in 2015. Some say that these cases drove the services to accept the Title I blanket license due to the retroactive safe harbor. All of these cases have two things in common: They were brought by independent songwriters or publishers and HFA was the backend matching and royalty accounting service in every case. So I would say it differently. What drove the services to take the safe harbor deal (which was great for them) was not the songwriters, it was HFA’s repeated inability to get the job done.

Not only was HFA not punished for its failures, it has been rewarded. This is curious. And the MLC is now supposed to accomplish in 12 months or less that which the industry has been unable to accomplish in decades. Using HFA. Which makes it all very mysterious to people like me.

One way to solve that mystery would be for the MLC to disclose the actual selection criteria and internal recommendations to support the supposed “unanimous” selection of HFA. Was this the work of a dedicated group of likeminded people or was it based on objective criteria? If, for example, MLC were to have given HFA and MRI a problem to solve, I would like to know exactly what that problem is so that I could assign the solution of the problem set as an academic project. I would be happy to publish the results, as could any other academic wishing to conduct such peer review.

Unfortunately, I seriously doubt that MLC has any intention of being that transparent unless they are required to do so by regulations. Which leads one to ask, why so secretive?

To be continued in Part 2

 

@SGAWrites Suggestions to @CopyrightOffice on MLC Operations Part 2

The US Copyright Office solicited comments from the public about the operations of the Mechanical Licensing Collective.  Those first round of those comments (called “initial comments”) were due in November and the second round of those comments (which are called “reply comments” because they essentially comment on the initial comments) were due December 20.

The Songwriters Guild of America filed initial comments and also filed reply comments.  We’re going to post SGA’s reply comments in three parts and then we’ll post other commenters who we think made really good points (like CISAC and BIEM among others).  This is Part 2 and you can read Part 1 here.  Note that SGA’s comment includes a post by Chris Castle, but we are going to link to that post rather than reproduce it as you may have already read it.

All the comments focus on some central themes that seem to be on everyone’s mind which can be boiled down to oversight, oversight and more oversight.  While the DLC controls the MLC’s purse strings, the MLC has been given largely uncontrolled power over songwriters that needs to be checked by the government on behalf of the governed.  SGA’s comment can be boiled down to its motto:  Protect Songwriters.

Reply Comments of the Songwriters Guild of America, Inc.
Re: Notice of Inquiry Issued by the United States Copyright Office Concerning the Orrin
G. Hatch-Bob Goodlatte Music Modernization Act of 2018 Titled “Blanket License
Implementation Regulations”

B. Copyright Office Review and Oversight of Controversial Activities By the MLC As
Denoted By David Lowery and Others

It is well beyond the scope of these comments to delve into the details and individual
administrative issues with which the MLC must deal, such as formulating contractual
arrangements with outside vendors in order to effectively accomplish its statutory duties.

Nevertheless, as noted above, according to independent press reports recently published by sources including former MLC Committee Member David Lowery (“MLC Selects As Digital Services Provider the Company That Sent Fraudulent License Notices to Songwriters”), certain activities of the MLC have aroused legitimate concerns in the independent music creator community that conflicts of interest are already influencing MLC decision-making (see article citations below). As SGA has urged in prior submissions, the USCO and the Librarian of Congress have been empowered under the MMA to monitor, oversee and review MLC activities, and should utilize such authority at the very least to question on an ongoing basis whether the MLC is being managed by its board members in ways consistent with such members’ fiduciary and other duties and responsibilities.

In that regard, SGA believes it is imperative to include for the record citations to three such recent publications concerning MLC activities, in order to call specific attention to the need for robust USCO oversight of issues that rise to the level of potential conflicts of interest such as self-dealing. It is, of course, up to the USCO and the Librarian of Congress to determine the criteria for its active intervention in such potentially problematic MLC matters, consistent with the statutory authority assigned to them under the law. Again, however, SGA urges that strict scrutiny of such issues, once brought to their attention by interested and informed members of the press and public, should at the very least be carefully reviewed and if necessary, investigated and acted upon. Moreover, as some commentators have suggested, the mandating of adoption by the MLC of conflict of interest policies in coordination with the USCO and the Librarian of Congress would likewise be a wise and welcome development.

The three recent, independent articles electronically appended to these Reply Comments for the review and records of the USCO and the Librarian of Congress are as follows (see Attachments C-E):

https://thetrichordist.com/2019/11/27/mlc-selects-as-digital-services-provider-thecompany-that-sent-fraudulent-license-notices-to-songwriters/

https://www.digitalmusicnews.com/2019/11/27/hfa-mechanical-licensing-collectivecontract/

https://www.hypebot.com/hypebot/2019/12/copyright-office-should-establishconflict-
of-interest-policy-for-the-mma-musical-works-database-op-ed.html

C. Failure to Disclose Amounts of Unmatched Royalties Being Held By Digital Distributors

On December 6, 2019, the USCO held a full day MMA symposium in Washington, DC billed as the “Unclaimed Royalties Study Kickoff.” The event was attended by several dozen copyright experts and other interested parties, some of whom represented the MLC and the DLC, and many of whom participated on one or more of several organized discussion panels. At the end of the event, a representative of SGA took the opportunity to note from the podium that in the approximately seven hours of discussion, not one panelist or participant had raised a single question concerning the aggregate size of the unmatched royalty pool being held by the major digital distributors of music (the very subject of the event). The answer to that question, SGA noted, is certainly a key factor in determining the best practices for scoping the size of the problem, and for identifying and distributing such monies to their proper owners. Or it is concerning why this question was not proactively addressed during any of the day’s panels, otherwise asked, SGA asserted, let alone not answered.

SGA has time and again over the past several years posed this same question to representatives of both digital distributors and music publishers (including in private discussions that took place at the Kickoff event), and even to the USCO. Not once has the question of aggregate unmatched amounts been answered, generally because the information appears to be either willfully undetermined or is purposely being withheld by the digital distributors. Estimates have ranged from several hundred million dollars (based upon extrapolations derived from the past experiences of organizations such as SoundExchange) to a high of $1.6 billion discussed at an Austin, Texas SXSW panel in 2017 that featured representatives of NMPA and a legal representative of one of its affiliated creator groups, who appeared to quote that number.

As the MLC and DLC are well aware, the MMA requires demonstrative actions by each that will “ensure that the policies and practices of the collective are transparent and accountable.” See, Section 102(d)(3)(D)(ix)(I)(aa). SGA suggests that consistent with this requirement, the time has come to at last address the issue of how much money in unmatched royalties is being held by the digital distributors, so that the scope of this daunting problem is publicly disclosed and can be fully and effectively addressed. The community of songwriters and composers has the right to know this information, and a USCO regulation requiring its public disclosure by a date certain in the very near future is clearly warranted. SGA respectfully requests that the USCO issue such a regulation as soon as possible concerning this most basic issue of transparency and accountability as required under the MMA, regarding disclosure of unmatched withholdings both now and in the future.

D. Budgetary Earmarks in Support of Bona Fide Efforts to Identify Unmatched Royalties by the MLC

In its Initial Comments, SGA described in some detail its experience as a participant before the United States Copyright Royalty Judges of the Library of Congress’ Copyright Royalty Board (“CRB”) regarding the Determination and Allocation of Initial Administrative Assessment to Fund Mechanical Licensing Collective, CRB Docket No. 19-CRB-0009–AA. Following both SGA’s withdrawal as a participant in those proceedings, and its subsequent submission of its Initial Comments to the USCO, on December 12, 2019 the CRB issued an order (“Order”) approving the settlement negotiated between the MLC and the DLC concerning the issue of Administrative Assessments.

In that Order, the CRB judges interestingly took note of their receipt and rejection of several comments concerning the proceedings submitted by non-parties:

The Judges have been advised by their staff that some members of the public sent emails to the Copyright Royalty Board seeking to comment on the proposed settlement agreement. Neither the Copyright Act, nor the regulations adopted thereunder, provide for submission or consideration of comments on a proposed settlement by nonparticipants in an administrative assessment proceeding. Consequently, as a matter of law, the Judges could not, and did not, consider these ex parte communications in deciding whether to approve the proposed settlement. Additionally, the Judges’ non-consideration of these exparte communications does not: (i) imply any opinion by the Judges as to the substantive merits of any statements contained in such communications; or (ii) reflect any inability of the Judges to question, sua sponte, whether good cause exists to adopt a settlement and to then utilize all express or reasonably implied statutory authority granted to them to make a determination as to the existence, vel non, of good cause.

The above CRB statement omits, quite unfortunately, the fact that while still a participant in the proceeding, SGA (despite its withdrawal) did indeed file a motion with the CRB that included specific comments applicable to any proposed settlement negotiated between the MLC and the DLC. The September 12, 2019, SGA filing included the following clear statement by SGA on behalf of US and global independent music creators, concerning their desire to ensure justice in the eventual distribution of currently unmatched royalties:

[E]ven as it seeks to withdraw its Petition to Participate in this Proceeding, SGA respectfully implores the Judges…to make the proper funding for MLC activities specifically designed to identify the proper owners of unmatched musical compositions [and royalties] wherever they may reside in the world… one of the highest priorities of these Proceedings…. It further, respectfully requests that the Judges undertake whenever appropriate, to emphasize their intention and expectation that certain resources have been specifically provided for and must therefore be devoted to use in identifying the proper owners of such unmatched compositions and royalties by the MLC…. The clear articulation of such judicial intent, if the Judges deem it appropriate, will be enormously helpful in ensuring transparency, fairness and hopefully success in the carrying out by the MLC of its duties, a result that will be appreciated by every music creator not only in the United States, but throughout the world.” Motion to Withdraw Petition to Participate filed by SGA with CRB, September 12, 2019, Docket No. 19-CRB-0009–AA.

The decision by the CRB judges to put aside SGA’s requests, presumably on the grounds that SGA’s withdrawal (the reasons for which are explained in SGA’s Initial Comments) negated the ability of the CRB to consider such comments, is disappointing at best. SGA, however, is appreciative for being enabled to make the same requests of the USCO, for the same reasons articulated in its motion to the CRB and in its Initial Comments. As SGA stated:

[I]n a situation in which those who control the MLC will likely benefit from not identifying the proper owners of unmatched works (by reason of the fact that potentially hundreds of millions of dollars in royalties pertaining to ‘permanently’ unmatched works will eventually be distributed on a market share basis), every effort must be made to ensure that the search process for those rightful owners be a bona fide and sufficiently financed global effort. (emphasis added)…. Moreover, despite contrary assertions by the MLC, SGA remains unconvinced that the presence on the MLC board of a small minority of music creators (no matter how diligent and well-meaning they may be) will be able to prevent the major music publishing corporations from attempting to successfully exert undue influence. SGA is highly concerned that such multi-national conglomerates may already be seeking to diminish the MLC’s ability to secure proper financing specifically earmarked for designing and carrying out a global program to identify the proper owners of the musical compositions connected to the huge, above-referenced cache of unmatched royalties. SGA similarly doubts that the independent music publishers on the MLC board, many of whom are contractually and/or commercially tied to the major music publishers, will be sufficiently motivated to join with those few MLC songwriter board members to ensure that the rights and interests of such yet-to-be identified music creators and small publishers are properly respected.

In consideration of the foregoing, SGA once again respectfully requests that the USCO and the Librarian of Congress promulgate regulations that make clear to the MLC the expectation that a certain, adequate percentage of the MLC’s Administrative Assessment shall be devoted to undertaking a bona fide and reasonably exhaustive, global search for the rightful owners of currently unmatched royalties, as explicitly intended by Congress under the MMA.

To be continued in Part 3.

@SGAWrites Suggestions to @CopyrightOffice on MLC Operations Part 1

The US Copyright Office solicited comments from the public about the operations of the Mechanical Licensing Collective.  Those first round of those comments (called “initial comments”) were due in November and the second round of those comments (which are called “reply comments” because they essentially comment on the initial comments) were due December 20.

The Songwriters Guild of America filed initial comments and also filed reply comments.  We’re going to post SGA’s reply comments in three parts and then we’ll post other commenters who we think made really good points (like CISAC and BIEM among others).  Note that SGA’s comment includes a post by Chris Castle, but we are going to link to that post rather than reproduce it as you may have already read it.

All the comments focus on some central themes that seem to be on everyone’s mind which can be boiled down to oversight, oversight and more oversight.  While the DLC controls the MLC’s purse strings, the MLC has been given largely uncontrolled power over songwriters that needs to be checked by the government on behalf of the governed.  SGA’s comment can be boiled down to its motto:  Protect Songwriters.

Reply Comments of the Songwriters Guild of America, Inc.
Re: Notice of Inquiry Issued by the United States Copyright Office Concerning the Orrin
G. Hatch-Bob Goodlatte Music Modernization Act of 2018 Titled “Blanket License
Implementation Regulations”

I. Introduction and Statement of Interest

These Reply Comments are respectfully submitted by the Songwriters Guild of America, Inc. (“SGA”), the longest established and largest music creator advocacy and copyright
administrative organization in the United States run solely by and for songwriters, composers, and their heirs. Its positions are reasoned and formulated solely in the interests of music creators, without financial influence or other undue interference from parties whose interests vary from or are in conflict with those of songwriters, composers, and other authors of creative works.

Established in 1931, SGA has for 88 years successfully operated with a two-word
mission statement: “Protect Songwriters,” and continues to do so throughout the United States and the world.

SGA’s organizational membership stands at approximately 4500 members, and through its affiliations with both Music Creators North America, Inc. (MCNA) (of which it is a founding member) and the International Council of Music Creators (CIAM) (of which MCNA is a key Continental Alliance Member), SGA is part of a global coalition of music creators and heirs numbering in the millions. Of particular relevance to these comments, SGA is also a founding member of the international organization Fair Trade Music, which is the leading US and international advocacy group for the principles of transparency, equitable treatment, and financial sustainability for all songwriters and composers.

These Reply Comments are meant to supplement the initial comments (“Initial Comments”) filed by SGA in its submission dated November 8, 2019 (see Attachment A), the full content of which is hereby repeated and reconfirmed.

The two most important points stressed by SGA in those Initial Comments were as follows:

1. The obvious and overwhelming necessity for inclusion of music creator information in
the Mechanical Licensing Collective’s (“MLC”) musical works database; and,

2. The equally imperative necessity for robust US Copyright Office oversight of the MLC’s
carrying out of its statutory duties, commitments and activities, especially regarding the
identification of unmatched works and royalties.

It was originally anticipated that SGA’s Reply Comments would focus chiefly on the recommendations submitted by other individuals and organizations as part of the initial round of inquiry. Intervening events concerning the activities of the Mechanical Licensing Collective (MLC) since SGA’s initial submission, however, have caused SGA to recalibrate its focus. Due to the importance of conveying to the US Copyright Office (“USCO”) and the Librarian of Congress some of the very concerning information that has come to light over the past several weeks, SGA believes its Reply Comments must now of necessity deal principally and forthrightly with those issues rather than with the critiquing of submissions filed by its colleagues.

II. Additional, Recent Developments Illustrating the Necessity for Close Scrutiny and Oversight of the MLC by the USCO and the Library of Congress

A. The Resignation of Recording Artist/Songwriter/Music Creator Activist David Lowery from the MLC, and the Process of Replacing Music Creator Members on the MLC Board and Committees Prior to its designation by the USCO and the Librarian of Congress as the organization that would serve as the MLC, the entity established principally by the major music publishing conglomerates and known as the NMPA/MLC conducted an extensive campaign aimed at gaining industry support for its MLC candidacy.

As part of that campaign, it and its affiliated music creator and publisher organizations frequently raised the participation of recording artist/songwriter/music creator activist David Lowery on the Unclaimed Royalties Oversight Committee (“URO Committee”) as potentially the most compelling proof of the entity’s commitment to ensuring that the voice of the independent music creator would always be heard.

Throughout his career, Mr. Lowery has been an outspoken advocate for the rights and interests of musical artists and creators. His mere presence within the NMPA/MLC’s proposed Committee structure legitimized for many the group’s candidacy among independent songwriter and composer groups. Those organizations might otherwise have objected more strenuously to an entity controlled in large part by the multi-national music publishing conglomerates being designated to serve as the MLC.

On July 5, 2019, the NMPA/MLC was indeed selected as the official MLC, and Mr. Lowery was simultaneously approved to serve on its URO Committee. Within a few short weeks after that announcement, however, Mr. Lowery resigned from the URO Committee and disassociated himself from the MLC with the statement that he “lacked the bandwidth” to carry out the watchdog role he had hoped to fill. Shortly thereafter, Mr. Lowery began to publish commentaries highly critical of certain decisions and activities being carried out by the MLC (and highly revealing of his apparent reasons for resigning), the gravity of which issues will be discussed further, below.

Mr. Lowery’s sudden and unexpected departure from the MLC and the URO Committee,
however, has raised even more immediate concerns within the independent music creator community, not only as to the reasons why he might have resigned, but also over the process by which he will be replaced. It is the position of SGA that a system which would allow the MLC board of directors (consisting of ten music publisher representatives and just four music creators) to select and/or approve replacement directors and committee members on behalf of the creative community, without meaningful input from creators or approval by the Librarian of Congress and the Register of Copyrights, is an absurdity. Such an unbalanced, unchecked process would virtually guarantee the removal of what little influence actual music creators have over future MLC activities and decision-making—a result wholly inconsistent with Congressional and Executive intent (especially as regards the crucial work of the URO Committee).

As SGA pointed out in its comments to the US Copyright Office dated April 22, 2019 concerning the original designation of the MLC (see Attachment B):
With the knowledge that ‘permanently’ unmatched royalties will eventually be
distributed on a market share basis to them, [the] largest music publishers will almost certainly do all they can to influence, hamstring and obscure the search process…. It will take highly experienced, non-conflicted and strongly independent-minded board members of the Mechanical [Licensing] Collective to resist this pressure, and to act in ways that fulfill their duties up to the mandated standards of fairness, transparency and accountability set forth in the Act.

The necessity for those characteristics in board members is amplified by the fact that the Mechanical Collective board may even override the recommendations of its own, statutorily established Unclaimed Royalties Oversight Committee if it sees fit to do so. It thus falls to the Register of Copyrights to serve as investigator, analyst and arbiter concerning this crucial, threshold issue of appropriate board and committee member selection as part of its evaluation of the competing candidates for designation as Mechanical Collective.

In honing in on its concerns regarding that specialized duty of the Register, members of Congress took the opportunity in both the Senate and House Reports to elaborate on their expectations regarding the qualifications of board and committee members proposed for service by any Mechanical Collective candidate, and the obligation of the Copyright Office under the direction of the Register to use its own, appropriate judgement in independently evaluating and verifying the credentials of those directors and committee members proposed. That Congressional posture was undoubtedly taken to ensure that all board and committee members of the Mechanical Collective possess the proper background and abilities to execute their duties to protect the rights of creators and other interested parties without conflict, pursuant to the terms of the Act.

Specifically, the applicable section of the Senate Report reads:

The Board of Directors of the new collective is required to be composed of individuals matching specific criteria. The detailed requirements concerning the overall framework of the Board of Directors of the collective and its three committees, the criteria used to select individuals to serve on them, and the advance publication of their names and affiliations all highlight the importance of selecting the appropriate individuals. Service on the Board or its committees is not a reward for past actions, but is instead a serious responsibility that must not be underestimated. With the advance notification requirement, the Register is expected to allow the public to submit comments on whether the individuals and their affiliations meet the criteria specified in the legislation; make some effort of its own as it deems appropriate to verify that the individuals and their affiliations actually meet the criteria specified in the legislation; and allow the public to submit comments on whether they support such individuals being appointed for these positions. It has been agreed to by all parties that songwriters should be responsible for identifying and choosing representatives that faithfully reflect the entire songwriting community on the Board.” (emphasis added) S. Rept. 115-339 at 4-5.

The otherwise identical section of the House Report concludes on the following note:

During the entire discussion of the legislation, it has been agreed to by all parties that songwriters should be responsible for identifying and choosing the songwriter representatives on the Board. The Committee strongly agrees with such an approach. (emphasis added) H. Rept 115-651 at 5.

Further, it seems of particular importance that the Executive Branch also regards the careful, post-designation oversight of the Mechanical Collective board and committee members by the Librarian of Congress and the Register as a crucial prerequisite to ensuring that conflicts of interest and bias among such members not poison the ability of the Collective to fulfill its statutory obligations for fairness, transparency and accountability. The Presidential Signing Statement, in fact, asserts unequivocally that ‘I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.’ (emphasis added)

Pursuant to such clear guidance from both Congress and the White House concerning the selection and replacement of music creator board and committee members, SGA urges the adoption by the USCO of regulations mandating inclusion in the MLC by-laws of a process that includes meaningful music creator participation in the selection process without music publisher interference, with further review and approval by the USCO and the Librarian of Congress of all music creator candidates for MLC board and committee service. To do otherwise would be akin to empowering the wolves to select the watchdogs that purportedly guard the sheep. And that is a result that is not only emphatically in conflict with Congressional intent, but one that is also guaranteed to produce exactly the opposite, long-term results Congress and the Executive Branchwere seeking by passage of the Music Modernization Act (“MMA”): remunerative fairness and justice for creators consistent with the principles set down in Article I, Section 8 of the US Constitution.

To be continued in Part 2.

Google Exec’s Called YouTube “A Pirate Site”. There’s Your Value Gap.

Sometimes we just have to look at a little bit of history to put things into perspective. It’s hard for us to believe that there is even a debate about The Value Gap for recorded music. Check this out as reported by AOL News in 2010.

Google had an internal meeting on competing with YouTube, and its executives were highly critical of YouTube: “A large part of their traffic is pirated content.” YouTube is a “rogue enabler of content theft.” “YouTube’s business model is completely sustained by pirated content.” “… it’s a video Grokster.” “I can’t believe you’re recommending buying YouTube . . . they’re 80% illegal pirated content.”

The whole damning article is right here, titled “Viacom vs. YouTube/Google: A Piracy Case in Their Own Words” and it’s well worth the full read.

In the end, it’s the DMCA that protected Google and it’s the DMCA that needs to be fixed. It’s that type of fix that the EU’s Article 13 sought to address. It would be nice to address those issues here, in the USA, where Google and YouTube are based.

 

The Google Funded Astroturf Group that Hacked The EU Copyright Vote (In Pictures)

 

Who Hacked the EU Copyright Directive Deliberations?

The EU parliament just went through a couple of contentious weeks in which they were overwhelmed with tweets, letters, emails and phone calls opposing Article 13 a section of the Copyright Directive that would have forced companies like Google to police their platforms better for copyright infringement. Last week we published a guest post by Volker Rieck in which he described in detail how a small group of anti-copyright ideologues apparently created a fake grassroots uprising against the EU copyright directive by essentially multiplying their numbers with bots.

Today I introduce you to the Google funded group that appears to have been behind virtually every single one of these fake grassroots political attacks. Including the #DeleteArt13 campaign.

 

Meet OpenMedia.org.   What a wholesome looking bunch of progressive-ish political activists!  They’re based in Vancouver BC.  A friendly town. A clean, modern, Pacific rim high tech banking city. Very multicultural, sort of like Seattle except without the crazy drug addicts with super-human-Chinese-research-chemical strength swinging shopping carts over their heads. No Vancouver is a nice place to raise your children and start an astroturf group that supports the regressive interests of Silicon Valley cyber-libertarians.

Yay!

OpenMedia.org counts Google as a “platinum supporter” whatever that means.  Mozilla Foundation which receives $300 million annually from Google is another “platinum supporter.” Then there is the super weird and mysterious Private Internet Access.  Ostensibly PIA (legal name London Trust Media) is a commercial VPN. But when you dig beneath the surface it’s ownership and corporate structure is to put it mildly opaque.

There are many other Google connections but one above all should be noted: board member Jacob Glick is the former head of the Public Policy and Government Relations for Google Canada. You think they still talk?

So what does OpenMedia do?  They fight aggressively against any sort of regulation that would harm Google and Silicon Valley’s bottom line. SOPA, Net Neutrality, DMCA Takedown Staydown and the EU copyright directive.

 

But doesn’t Google have like a zillion academics, think tanks and astroturf groups already doing that for them?  Yes. That is true. So what is so interesting about OpenMedia.org?  It’s how they go about supporting Google and other silicon valley companies.  They specialize in creating “grassroots” campaigns.  Only these aren’t really grassroots campaigns. They are pure astroturf.  Their campaigns make heavy use of automated tools that allow a single person to repeatedly spam targets with tweets, emails, robo-calls, robo-faxes and even automated letters!  How do they do that?

Meet New/Mode Purveyors of the Finest Democracy Hacking Tools.

 

Meet NewMode.net.  New/Mode is some kind of arms-length commercial subsidiary of OpenMedia.org. Which in turn is funded and directed at many levels by Google and Google associated groups.  Not sure how non-profits work in Canada, but the ownership structure as described on their home page seems odd.

Here’s what they do.  One-click calling.  One-click email. One-click faxing. Fairly predictable. Storm social? hmm like the sock puppet tweet storm we saw directed at the MEPs last month?   Letters to the editor? WTF? Automated letters to editors? (more on that in a minute).

Let’s look at one click calling. Pure clicktivist nonsense.  I tested this out a while back. A user can put in any postal code.  No one checks. I put in a postal code for a rural city in the northern plains of the US and I was connected to the office of someone who was not my congressman. I was scripted to behave as if I was a constituent.

Even better. If you stay on the line, the service keeps connecting you to additional “targets.”  So one person can easily call 20-40 “targets” in an hour.

Democracy Hacking Tools in Action

 

During the #DeleteArticle13 campaign I was able to dial UK MEPs using New/Modes tool. Even though I was using a US phone number! NewMode and OpenMedia didn’t seem to care. Why should they?  Any cybermob is a good mob right?

They helpfully gave me talking points. This is your democracy. This is your democracy on bots.

(Since I originally posted this piece I checked the calling feature again.  It still works. Even with US number. See screenshot above)

Microtargeting a Tweet Storm

 

New/Mode isn’t just about spam email and robo-calling.  They do so much more. Want a tweet storm?  Just like the one directed at Euro MEPs on article 13?  I wonder how all these sock puppet tweets were generated? They were coming out at about 3 to 5 a minute in the wee hours of the morning Brussels time.  A lot of sleepless constituents! Is meth still popular in EU?

Oh look! Those aren’t sleepless constituents. New/Mode provides exactly the tool you need to create your own middle of the night tweet storm. No Meth required!

And New/Mode lets you target exactly who you want to target. Just direct the information warfare firehose at a single wavering MP somewhere.  More effective.

 As we reported in an earlier blog, we observed the “grassroots” tweet storm behaved as if someone was in command and control.  The tweets focused on certain countries MEPs for long periods of this time, then suddenly shifted to a different country.   This is not organic grassroots behavior.

Google Command and Control

Tweet storm targets were the same as those MEPs highlighted on the SaveYourInternet.eu website. SaveYourInternet.eu used the New/Mode web tools for tweets, email and robo calls.

 

SaveYourInternet.eu website is operated by Google’s lobbyist in Brussels N-Square.  Get the picture? MEPs were cyber bullied by fake mobs under the command and control of a Google lobbyist.  How is this even legal?

In the US command and control has been effectively run by Marvin Ammori via Fight For The Future.  Fight for the Future employs the same New/Mode tools to mount it’s fake grassroots campaigns.  Ammori is/was outside counsel to Google, and is currently associated with at least three other Google funded institutions including the Center for Internet and Society.

I Love the Smell of Hacked Democracy in the Morning: Past Targets

The US Federal Communications Commission was targeted by New/Mode tools last year:

https://www.usatoday.com/story/tech/talkingtech/2017/11/29/net-neutrality-comments-mostly-came-bots-and-fake-email-addresses-pew-finds/904439001/

The Trans Pacific Partnership  trade agreement was derailed largely due to disinformation spread with this Open Media New Mode enabled tool.  Here is the OpenMedia.org “cloned” website that first deployed the tools:

https://stopthesecrecy.net

Original opposition was based on intellectual property provisions, but Trump (and to a lesser extent Sanders) hijacked the movement and turned it into a jobs issue.  (You see what happens Larry when you find a stranger in the Alps?)

In 2016 the US Copyright Office  “consultation” was similarly bombed with identical comments using a similar tool.

https://thetrichordist.com/2016/04/19/exactly-86000-identical-comments-the-illegal-comment-bombing-of-dmca-notice-takedown-review-by-google-proxy-fight-for-the-future/

Also 2014 a similar use of automated commenting tools targeted and crashed the FCC website. Freedom of Information requests later revealed that FCC staffers with close ties to Google helped the group that generated the bot comments post the comments anyway.  See emails here

These are all DDoS attacks that seek to overwhelm the voices of real  constituents by drowning them out with a flood of corporate sponsored spam. There is no other way to describe this other than a hack of the Democratic processes.

 

New/Mode also brags that it can create “clone” websites to make it appear as if there are a broad range of groups supporting the same action.  In screenshot above they brag about creating 60 “cloned” environmental group websites in Canada to put pressure on the Trudeau government.  While the end goal of this environmental campaign may be laudable, ends never justify means. Especially if it means you hand Canadian democracy over to astroturf groups controlled by Silicon Valley interests. Maybe Canada’s federal government in Ottawa ought to have a look at what’s going on all the way down at the other end of the country in Vancouver.  Seems sketchy to me.

And it is Fake Grassroots

 

 

As we have noted repeatedly on the Trichordist, when Google funded/directed astroturf groups that use the New/Mode tools then try to turn their cyber-brownshirts into boots on the ground very few (if any) people show up.

In 2016 Fight For The Future launched a campaign against the US Copyright Office consultations on copyright reform. Fight or the Future claimed to have crashed the Regulations.gov website with New/Mode tool. (Is this something to brag about?)  Fight for the Future claimed it was because tens of thousands of folks responded to their online campaign and overwhelmed the regulations.gov portal to comment on US Copyright Office consultations.  At the same time Fight For The Future organized a rally.  However only 4 people showed up to protest in person.  Judging by signs all four were pro-copyright. Apparently they showed up to oppose the non-existent Fight For The Future protestors.  Doesn’t make sense. A group that can get tens of thousands of folks to leave comments on wonky federal regulations  but they can’t get anyone show up for a protest?

Similarly there are only 37 individuals in the photo of the  “huge” white house rally to keep title two net neutrality at FCC.  This was also organized by Fight For The Future. So the online campaign generated millions of comments, emails and phone calls and 37 people show up to protest at the White House?   This does not pass the smell test.

Over in Europe reports indicate something similar happened.  The biggest #DeleteArt13 rally in Berlin had less than 150 participants.  Where are all the millions of folks who sent tweets, emails and phone calls to EU parliamentarians?

The simplest explanation is that most of the online protestors don’t really exist.

Fake, fake fake.  Pure fakery.

It Gets Worse: New/Mode Hacks Print Media

 

But forget the EU and Canada for now. The thing that stopped me in my tracks was this tool that allows a small team of individuals to write a “letter to the editor” to every local newspaper in the US.

 

Clearly these folks at Open Media know that they are up to no good. “Randomize subject lines and content to deliver an original authentic story to editors.”  This is pure shillery.  No I take that back. This is pure fuckery.  And they are fucking with our democracy at a very local level.  Turns out Canadians aren’t nice at all.

They even bragged about it and linked to robo letters that were published in small town newspapers.  What is wrong with these people?

Hack Me?  HACK YOU!

 

Just to demonstrate how fucked up this is,  I repurposed the Net Neutrality letter to the editor. I replaced their text with my own and sent the following letter to every small town newspaper in Oregon. It took maybe five minutes?  The joke in the letter is that Sen Ron Wyden of Oregon has proposed a bill to prevent hacking of federal elections by mandating paper ballots.  The problem is that Wyden clearly does not have a clue as to how our democracies will be hacked.  Our democracies will be hacked by hybrid information warfare techniques.  NOT ballot tampering. The creation of fake grassroot movements and disinformation is what will kill our democracy.  OpenMedia.org and New/Mode are already deploying the tools that will kill our democracy. But given the fact Wyden is sometimes referred to as “The Senator from Google” don’t expect him to do anything about it.  (Also Google and Oregon? See here)

Oh and Krist Novoselic is the former bass player of Nirvana.  And he does have political aspirations.  See his book

Can’t be any worse than Senator Ron “Hedge Fund In My Basement” Wyden.

 

 

 

 

 

Article 13: Anatomy of a Political Hack- Guest Post by Volker Rieck

Guest post by Volker Rieck.
Translated from German. Original article is here
http://webschauder.de/anatomie-eines-politik-hacks/

The anatomy of an assault on politics

The New Testament narrates numerous miracles attributed to Jesus Christ. One of them is the feeding of the multitude: Jesus is described as having multiplied a few loaves and fish so that five thousand people could eat and were satisfied.

The debate over the new EU Copyright Directive towards the end of June 2018 was characterized by a similarly remarkable form of multiplication. But what was being multiplied in this case was not bread or fish, but protest – or rather the appearance of protest.

To begin at the beginning …

In September 2016, EU Commissioner Günther Oettinger put forward proposals for a Directive on Copyright in the Digital Single Market.

Time passed, and Oettinger moved on to a new role within the Commission, but the wheels of bureaucracy continued to churn until the European Parliament’s Committee on Legal Affairs (JURI) was due to vote on the proposed directive.

In the run-up to the vote, observers may have wryly recalled the dictum of German parliamentarian Peter Struck that no bill ever exits parliament in the form it enters it. The directive’s rapporteur Axel Voss (CDU/EPP) had the pleasure of steering a process in which numerous changes and additions to the text were negotiated before it was formally adopted by the JURI Committee and Voss was finally given a mandate to proceed to negotiations with the EU member states.

Julia Reda’s simple slogans

The only member of Germany’s Pirate Party with a seat in the European Parliament, Julia Reda, opposed the proposed legislation from a very early stage. Her campaign grossly oversimplified and distorted the issues at stake. Reda’s “link tax”, coined to attack Article 11 of the directive, is marvellously short and sweet, but that anybody could believe in all seriousness that it would be possible to impose a tax on linking to texts (we know taxes are collected by the tax authorities, right?) is – albeit involuntarily – rather funny.

The battle cries of “upload filter” deployed in opposition to Article 13 of the directive were not much better. Upload filters were not and are still not mentioned in the directive, but the term is eminently suited to stoking fear. And Reda did indeed succeed in her efforts to fool some of her supporters into believing that EVERYTHING on the internet will be filtered in the future if the directive is adopted in its current form and that memes– yes, even people’s much-beloved memes – will all be banned.

Illustration: Screenshot from Zeitjung.de. “The EU wants to ban memes”

 

What nobody (again) seemed to have read and/or understood

While this was completely at variance with the actual content of the directive, that appeared to be of merely tangential interest. What the directive proposed was that platforms (and only platforms) would be strongly encouraged to enter into license agreements with rightsholders covering user uploaded content.
Responsibility for taking out licenses would rest with the platforms, and end-users would be completely in the clear. The idea was simply that platforms would have a duty to maintain transparency to ensure correct licensing and the proper distribution of payments made for licenses to rightsholders. Under the directive, operators of a platform which had not concluded a licensing agreement would have been liable for unlicensed content on their platforms. How operators chose to keep their platforms clean would have been up to them. But preventing copyright violations would have come within their remit of responsibility.

Had you stayed silent, you would have stayed philosophers (to paraphrase Boëthius loosely)

And that, in a nutshell, is the content of Article 13 of the directive. Not that it mattered a jot; many commentators seem to have persistently shunned the intellectual effort required to read a current version of the draft legislation and understand the legislator’s intentions before piling in to make their own arguments. From the internet associationsof the political parties to Sascha Lobo, who wrote not once but twice in Der Spiegelabout “censorship machines”. If only the commentators had simply read the draft text that so perturbed them! Then, perhaps, they might have noticed that the users of a platform which had not licensed content would, for the first time, have gained extensive rights including an entitlement to mediation in the event of finding themselves blocked. By that point, at the latest, it ought to have become evident that the cries of “censorship” were misplaced. Perhaps the critics were simply defeated by the challenge of procuring and understanding a current version of the text?

They want censorship machines, or do they not?

But coming back to content-sharing platforms, the real issue here, let us look at one of the most successful ones, YouTube. The directive is interested only in regulating platforms like this, not in open-source platforms or sales platforms.

For years now, YouTube has been using its Content IDsystem. This system allows rightsholders who submit content to determine what should happen when users view it. The available options span the gamut from monetization (an end user uploads a video with music, for example, and the rightsholder gets a share of any advertising revenue generated) all the way to – please be brave now, Sascha Lobo and Julia Reda – blocking the video. The primary purpose of this system is to prevent third parties from generating revenue with content they have no entitlement to exploit.

What’s more, Copyright Matchis now also ready for deployment. This new system resembles a light version of Content ID. Its primary purpose is to assist YouTubers seeking to assert their rights when duplicate videos are uploaded. The first person to upload a video is automatically notified of duplicate uploads and afforded the opportunity to determine how the platform handles these duplicates. The range of options again extends – and please be brave now, dear net activists – all the way to blocking.

Has anybody condemned these options as censorship? Seemingly not. There have been no protests in the streets against Content ID and Coypright Match, and there has been no public outcry over YouTube’s “censorship machines”. Julia Reda, Sascha Loboand LeFloid, another irate YouTuber, have (right up to the present) refrained from deleting their YouTube channels or adding black sashes of mourning to protest against these upload filters.

The protesters take to the streets

This brings us nicely to the issue of the rallies against the new directive. A demonstration was held, of course. It took place on 24 June 2018 in Berlin. Rather unfortunately for the protesters, it rained that day; otherwise they would have been able to count the usual hordes of tourists at the Brandenburg Gate among their numbers.
Under the circumstances, only those who had turned up to protest were counted, an estimated 150 people. As with an earlier demonstration focused on the ancillary copyright of press publishers, the turnout was so low that there were presumably more press photographers than activists in attendance.
Even when they are initiated by the broadest of coalitions, protests like this tend to suffer from the internet’s 1-9-90 rule: 90% of net users are entirely passive, 9% click on “like” buttons now and again, and only 1% actively upload content.

This explains why campaigns like “Right To Remix” have puttered on for years without gathering much momentum: the vast majority of people are simply not interested.

When civil rights protesters play hardball

But those intent on scuppering the directive had not yet exhausted their firepower. What came now was the hour of the bots, the automatically generated emails, the automatically placed phone calls and the miraculous multiplication of protest, or rather its simulation. In the week before the plenary vote in the EU parliament on whether the adoption of the report by the JURI Committee and the negotiation mandate given to Voss should be allowed to stand,the inboxes of EU parliamentarians were flooded with automatically generated emails. Some EU parliamentarians reported having received 60,000 emails. In total, 6 million emails appear to have been dispatched to EU parliamentarians in this fashion. Compare that number to the handful of protesters in Berlin.

Almost all the emails were identical in content, phrasing and formatting, and many even came from one and the same sender, presumably following the logic that more is better. A very large number of them were sent from the domain Opendata.eu.

This site has no content. It was registered by an English limited company which is in turn a majority holding of a US Inc. that trades in domains and provides services. No civil rights initiative appears to be involved.
Did accepting responsibility for the relentless online bombardment of parliamentarians seem too risky?

The picture was repeated on Twitter, where accounts were flooded with spam, but also threats.

What happened? Sites such as Saveyourinternet.eu made tools available that enable this kind of email carpet bombing. The supporters of this site include an array of internet lobby groups such as the Electronic Frontier Foundation (EFF).

Anyone who believes that the EFF are a grassroots civil rights movement should take a look at this report.
Is it necessary to mention at this point that a large number of the groups orchestrating protests are fundeddirectly or indirectly by groups with an obvious interest in the failure of reforms?

But Wikipedia also jumped aboard the bandwagon. The directive is entirely irrelevant for Wikipedia, which confined itself to condemning it in generic terms as an attack on the free internet Wikipedia understands itself as part of. This was, for all intents and purposes, rather like BMW owners protesting in response to a recall of specific Volkswagen models ordered by the Federal Motor Transport Authority and citing it as evidence of a general war on the motorist. It can only be assumed that the close ties binding Julia Reda’s office manager and his former employer were able to influence Wikipedia’s stance.

Even Mozilla joined the fray. Newsletter subscribers were invited to phone EU parliamentarians. The “Call now” button even appeared in four different places in a newsletter. And of course the calls were free.
The costs were small change for an organization which received over 500 million dollars in royalties for integrating search engines into its browser Firefox in the year 2016 alone.

Illustration: An extract from Mozilla’s campaign email: “everything you put on the internet will be filtered, and even blocked.”

EU parliamentarians reported that callers had followed scripts. The phone calls, just like the emails, relied on prefabricated phrases. It was just too bad that many callers could make little response to questions or counterarguments.

 

This persistent harassment via email, telephone and Twitter took its toll on EU parliamentarians. Many were absent during the vote. Perhaps they took thethreat of murderso seriously that earlier proponents of the legislation now opposed the directive, or perhaps they even believed the canned protests had been real. Whatever the circumstances, the outcome was clear: the motion to allow the trilogue negotiations to proceed received only 278 of the necessary 299 votes.

 

What do these events signify for political processes?

Individual citizens are perfectly entitled to voice their concerns, doubts and problems in dialogue with their representatives in the EU parliament. But this case makes a mockery of this right. Emails citizens had formulated themselves were bound to be lost without trace in the deluge of automatically generated texts. And that, in fact, is exactly what this orchestrated protest was designed to achieve: the drowning out of nuanced arguments by a vast wave of simulated protest.

Just like in the Bible: a miracle of multiplication. In this case, however, no miracle-working was involved; the heavy lifting was performed by technology. ByDDoS, to be precise.

Is this the future? Are those with better technology destined to win even when the better arguments are not on their side? If that comes about, minorities will find it very difficult to make themselves heard – let alone to participate in the process of political decision-making – unless they are able to afford the requisite technology. But even assuming equal access to resources, surely the weighing up of arguments should still count for more than the number of preformatted spam emails, threats or scripted phone calls that can be mustered?

Now, at the latest, the EU must analyse these events in depth and take precautions against politics being hacked in this fashion again. Governance by shitstorm cannot be in the interests of democratically elected governments, and it most certainly cannot be in the best interest of voters.

 

@RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid — Artist Rights Watch

On the surface, at least, the “Transparency in Music Licensing Ownership Act,” introduced in the House of Representatives on July 20 by Congressman Jim Sensenbrenner (R-WI), seems like a copyright bill that could help untangle the online music business….but the devil is in the details.

via @RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid — Artist Rights Watch

Silicon Valley Hypocrisy: We Support Solutions To Piracy, Except When They Are Actual Solutions to Piracy…

You can’t make this up. Law 360 is reporting that the International Trade Commission (ITC) has been denied authority over digital goods.

The Federal Circuit said Thursday that it wouldn’t reconsider its decision that the International Trade Commission lacks the authority to block the import of digital files, drawing a lengthy dissent from one of its judges.

Keep in mind, the same people now opposed to the ITC having this authority are the same who argued in favor of the the ITC doing so as an alternative to SOPA called the Open Act.

Below is an except from an excellent post on this issue By Devlin Hartline & Matthew Barblan at CPIP.

When advocating for the OPEN Act as a good alternative to SOPA and the PROTECT IP Act, the bill’s sponsors touted the ITC as being a great venue for tackling the problems of foreign rogue sites. Among the claimed virtues were its vast experience, transparency, due process protection, consistency, and independence:

For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 – which governs how the ITC investigates rightsholders’ request for relief – the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard. The ITC’s process and work is highly regarded as independent and free from political influence and the department already has a well recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.

The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports – like those that violate intellectual property rights – [sic] would ensure consistent enforcement of Intellectual Property rights and trade law.

Some of the groups now arguing that the ITC shouldn’t have jurisdiction over digital goods openly supported the OPEN Act. Back in late 2011, the EFF stated that it was “glad to learn that a bipartisan group of congressional representatives has come together to formulate a real alternative, called the OPEN Act.” The EFF liked the bill because the “ITC’s process . . . is transparent, quick, and effective” and “both parties would have the opportunity to participate and the record would be public.” It emphasized how the “process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation.”

Google likewise thought that giving the ITC jurisdiction over digital goods was a great idea. In a letter posted to its blog in early 2012, Google claimed that “there are better ways to address piracy than to ask U.S. companies to censor the Internet,” and it explicitly stated that it “supports alternative approaches like the OPEN Act.” Google also signed onto a letter promoting the virtues of the ITC: “This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established International trade remedies to bear on this problem.”

You can read the full post here (Strongly Recommended):

Digital Goods and the ITC: The Most Important Case That Nobody is Talking About


 

If Streaming Is The Solution To Piracy, Why Is Piracy Still Increasing?

Music Business Worldwide is reporting that “GLOBAL MUSIC PIRACY DOWNLOADS GREW BY ALMOST A FIFTH IN 2015″.

The amount of music downloaded on illegal piracy sites grew by 16.5% in the second half of 2015 compared to the year’s opening six months.

That’s according to leading content protection and market analytics company MUSO, which tracked web activity on 576 sites which were ‘wholly dedicated to music piracy or contained significant music content’.

Across these sites, MUSO analysed over 2 billion visitor traffic hits globally.

READ THE FULL STORY AT MUSIC BUSINESS WORLDWIDE:
http://www.musicbusinessworldwide.com/global-music-piracy-downloads-grew-by-almost-a-fifth-in-2015/