Guest Post: The Supreme Court Should See Through Google’s Industrial-Strength Fair Use Charade

[This post first appeared on Morning Consult. The US Supreme Court will hear oral argument in the Google v. Oracle case on October 7]

Google’s appeal to the U.S. Supreme Court of two Federal Circuit decisions in Oracle’s favor is turning into the most consequential copyright case of the court’s term — if not the decade. The appeal turns in part on whether the Supreme Court will uphold the Federal Circuit’s definition of fair use for creators and reject Google’s dubious assertion of “industrial strength” fair use.

I co-wrote an amicus brief on the fair use question on behalf of independent songwriters supporting Oracle in the appeal. Our conclusion was that the Supreme Court should affirm the Federal Circuit’s extensive analysis and hold for Oracle because Google masks its monopoly commercial interest in industrial-strength fair use that actually violates fair use principles.

The story begins 15 years ago. Google had a strategic problem. The company had focused on dominating the desktop search market. Google needed an industrial-strength booster for its business because smartphones, especially the iPhone, were relentlessly eating its corporate lunch. Google bought Android Inc. in 2005 to extend its dominance over search — some might say its monopoly — to these mobile platforms. It worked — Android’s market share has hovered around 85 percent for many years, with well over 2 billion Android devices.

But how Google acquired that industrial boost for Android is the core issue in the Oracle case. After acquiring Android, Google tried to make a license deal for Sun Microsystems’ Java operating system (later acquired by Oracle). Google didn’t like Sun’s deal. So Google simply took a verbatim chunk of the Java declaring code, and walled off Android from Java. That’s why Google got sued and that’s why the case is before the court. Google has been making excuses for that industrial-strength taking ever since.

Why would a public company engage in an overt taking of Oracle’s code? The same reason Willie Sutton robbed banks. Because that’s where the money is. There are untold riches in running the Internet of Other People’s Things.

Google chose to take rather than innovate. Google’s supporters released a study of the self-described “fair use industries” — an Orwellian oxymoron, but one that Google firmly embraces. Google’s taking is not transformative but it is industrial strength.

We have seen this movie before. It’s called the value gap. It’s called a YouTube class-action brought by an independent composer. It’s called Google Books. It’s called 4 billion takedown notices for copyright infringement. It’s called selling advertising on pirate sites like Megaupload (as alleged in the Megaupload indictment). It’s called business as usual for Google by distorting exceptions to the rights of authors for Google’s enormous commercial benefit. Google now positions itself to the Supreme Court as a champion of innovation, but creators standing with Oracle know that for Google, “innovation” has become an empty vessel that it fills with whatever shibboleth it can carelessly manipulate to excuse its latest outrage.

Let’s remember that the core public policy justification for the fair use defense is to advance the public interest. As the leading fair use commentator Judge Pierre Leval teaches, that’s why fair use analysis is devoted to determining “whether, and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright.” You can support robust fair use without supporting Google’s position.

Google would have the court believe that its fair use defense absolves it from liability for the industrial-strength taking of Oracle’s copyright — because somehow the public interest was furthered by “promoting software innovation,” often called “permissionless innovation” (a phrase straight out of Orwell’s Newspeak). Google would have the court conflate Google’s vast commercial private interest with the public objectives of copyright. Because the internet.

How the Supreme Court rules on Google’s fair use issue will have wide-ranging implications across all works of authorship if for no other reason than Google will dine out for years to come on a ruling in its favor. Photographers, authors, illustrators, documentarians — all will be on the menu.

Despite Google’s protestations that it is really just protecting innovation, what is good for Google is not synonymous with what is good for the public interest — any more than “what’s good for General Motors is good for America,” or more appropriately, “what’s good for General Bullmoose is good for the USA.”

5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating | John Degen @ Medium

Please read John Degen’s 5 Seriously Dumb Myths About Copyright the Media Should Stop Repeating at the link below.

There you have it. I hope this quick list has helped my friends and colleagues in the media who may be hurrying to file a story on World Book and Copyright Day. Here’s a final, simple, rule of thumb for writing about copyright.

If you want to understand how a working artist feels about copyright, talk to an actual working artist.

The last time I checked, ivory-tower legal-theory departments and digital-utopian advocacy groups were not the best places to look for actual working artists.

READ THE FULL POST AT MEDIUM:
https://medium.com/@jkdegen/5-seriously-dumb-myths-about-copyright-the-media-should-stop-repeating-a92e934f12a4

Grooveshark “Offline by Christmas”… | Digital Music News

Infringement should not be a business model.

On September 29th, the United States District Court in Manhattan found Grooveshark guilty of massive copyright infringement, and specifically named CEO Sam Tarantino and CTO Josh Greenberg as bad actors. Now, the curtains are starting to drop: just days after that decision was rendered, federal judge Thomas Griesa issued another decision that removed all doubt that the plaintiffs — a total of 9 recording labels — had triumphed in the case.

READ THE FULL POST AT DIGITAL MUSIC NEWS:
http://www.digitalmusicnews.com/permalink/2014/11/21/grooveshark-offline-christmas

Copyright Critics Don’t Quite Get Artists | The Illusion Of More

A must read from David Newhoff for all creators with many points, well made.

Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all of the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce. And in the absence of those rights, we could easily see a reduction not only in the number of producers, but also in the number of works produced by that elite few. In a practical example, imagine the trustafarian artist working in the most altruistic manner, producing wonderful works solely to be experienced; he doesn’t care about money, but he does have to accept that McDonald’s can use his work to sell hamburgers, which betrays everything he is expressing. It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.

READ THE WHOLE POST AT:
http://illusionofmore.com/copyright-critics-dont-get-artists/

Pirate Bay founder arrested after two years on the run | Guardian UK

One of the founders of file-sharing website Pirate Bay has been arrested in southern Sweden to serve an outstanding sentence for copyright violations after being on the run for nearly two years, Swedish police have said.

READ THE FULL STORY AT THE GUARDIAN UK:
http://www.theguardian.com/technology/2014/may/31/pirate-bay-found-arrested-after-two-years-on-the-run

New Adventures in Copyright Enforcement @SXSW #SXSW

Friday, March 14 | 2:00PM – 3:00PM
New Adventures in Copyright Enforcement
Austin Convention Center | Room 17B | 500 E Cesar Chavez St

lthough debates about how to protect copyright online might seem so 2010, they certainly haven’t abated. The current conversations aren’t as contentious as the SOPA skirmishes, but that doesn’t necessarily mean consensus. Current attempts to address piracy are taking place outside of Congress, and include efforts to establish “best practices” between stakeholders. From the recently-minted Copyright Alert System to voluntary agreements meant to curb unauthorized activity within ad networks and payment processors, new experiments in rights protection abound. What’s the thinking behind the various approaches? What does a “win” look like, and what are the parameters for oversight? How can artists get involved?

MMODERATOR
Casey Rae
Interim Exec Dir – Future of Music Coalition

Sherwin Siy
VP, Legal Affairs- Public Knowledge

Jill Lesser
Exec Dir- Center For Copyright Information

David Lowery
Musician/Internet Content Provider – Cracker

GEMA wins against YouTube In Germany on “Blocking Screens” | Media Biz

A German court found that YouTube has to stop misleading the public by blocking certain content and publicly shaming GEMA for it (the German association of composers, lyricists and music publishers.) A first step in the right direction.

Heker referred to the decision as “an important and positive signal to the music authors,” because: “It is not the GEMA, which prevents music on the internet you only want to license YouTube, like all other music portals..” Heker sweeps out: “Our concern is that the authors participate in the economic exploitation of their works and can earn their livelihood in the future.”

READ THE FULL POST MEDIA BIZ (GERMAN):
http://www.mediabiz.de/musik/news/gema-feiert-im-streit-um-sperrtafeln-erfolg-gegen-youtube/344107?Nnr=344107&NL=MWBlitz&uid=8514

IN ENGLISH VIA GOOGLE TRANSLATE:
http://bit.ly/1gzOCkT

Musician/Producer Michael Beinhorn Added to NAMM Artists Rights Panel Thu 1/23 – 3pm

We’ve just gotten word that Musician/Producer Michael Beinhorn has been added to the NAMM 2014 Artists Rights & Internet Panel.

Michael brings a unique perspective as a musician and producer whose work spans from such classic and ground breaking albums as Herbie Hancock’s “Future Shock” which featured “Rockit” to seminal rock albums for Red Hot Chili Peppers, Marylin Manson, Hole, Soundgarden and to many more to mention.

Michael Beinhorn Discography

NAMM 2014 – Copyright, The Internet and You
http://www.namm.org/thenammshow/2014/hot-zone/copyright-internet-and-you-panel

Day: Thursday, Jan 23

Start Time: 3:00 pm (One Hour) 

Room: The Forum (203 A-B)

Presenter / Moderator: Gregory Butler

Why are content creators seeing less money than ever while their art is being used so widely? Join our panel of experts as they look at the challenges of navigating the new music industry, piracy and intellectual property.

Panelists:
* Lucy Miyaki of Tashaki Miyaki
* Manda Mosher of Calico
* Reinhold Heil, Film & TV Composer
* John Cate, fmr Tunecore CFO
* Tom Biery, Artist Management
* Brian McNelis, Music Supervisor / Soundtrack Album Producer

RELATED :

NAMM 2014 Artists Rights Panel, Actually Features Artists…

NAMM 2014 Artists Rights Panel, Actually Features Artists…

We’ve written here before how so called “Artists Rights” or “Artists & Copyright” panels at conventions such as CES and SXSW seem to be lacking any artists who are actually interested in protecting their rights and copyrights. So we’re pleased to see that NAMM has gotten it right and we encourage those going to the convention to drop in on the panel.

NAMM 2014 – Copyright, The Internet and You
http://www.namm.org/thenammshow/2014/hot-zone/copyright-internet-and-you-panel

Day: Thursday, Jan 23

Start Time: 3:00 pm (One Hour) 

Room: The Forum (203 A-B)

Presenter / Moderator: Gregory Butler

Why are content creators seeing less money than ever while their art is being used so widely? Join our panel of experts as they look at the challenges of navigating the new music industry, piracy and intellectual property.

Panelists:
* Lucy Miyaki of Tashaki Miyaki
* Manda Mosher of Calico
* Reinhold Heil, Film & TV Composer
* John Cate, fmr Tunecore CFO
* Tom Biery, Artist Management
* Brian McNelis, Music Supervisor / Soundtrack Album Producer

If the Internet Breaks and No One Notices, Did it Really Happen?

We’ve heard a lot about how protecting artists rights would “break the internet”, turns out the internet seems to be doing just fine. So much for all of the chicken little fear mongering from Silicon Valley interests that have been profiting by illegally exploiting artists and creators for over a decade.

The world is waking up. Dear Larry, the internet is not breaking, it’s time to “get over it.

French court orders search firms to block pirate sites | BBC

A court in France has ordered Google, Microsoft and Yahoo to block 16 video-streaming sites from their search results.

The High Court in Paris ruled the websites were dedicated to the “distribution of works without consent of their creators”.

“Search engines are incredibly skilful, yet they are still leading consumers to illegal money-making sites even when the searcher is seeking legal content online,” said Chris Marcich, president of MPA in Europe, Middle East and Africa.

“The present situation is confusing for consumers, damaging the legal download market and legitimising copyright theft. The decision in France clearly is a step in this direction.”

Several internet service providers were also ordered to block the sites.

UK Police crackdown on pirate site ads | BBC

Websites illegally hosting copyrighted content have been targeted by City of London Police.

“Operation Creative is being run… to really get to grips with a criminal industry that is making substantial profits by providing and actively promoting access to illegally obtained and copyrighted material,” said Supt Bob Wishart.

The scheme encourages offenders to change their behaviour so that they are operating within the law, he added.

“However, if they refuse to comply we now have the means to persuade businesses to move their advertising to different platforms and, if offending continues, for registrars to suspend the websites,” he said.

Irish Internet firms ordered to block file-share sites | Irish Independent

THREE major music companies have been granted orders which will allow internet service providers here to block access to a file-sharing website as part of efforts to prevent “wholesale copyright theft” on “a grand scale”.

The judge was satisfied many of those were engaged in copyright infringement, devastating the ability of a generation of creative people to make a living from their talents.

USA What Does Hotfile’s Closure Mean to You? – Plagiarism Today

With the closure of Hotfile, questions are raised about what this means for content creators and the cyberlocker industry. Here are a few likely outcomes.

The judge in the case also ordered Hotfile that, if it wishes to remain open, it has to use “digital fingerprinting” to filter out infringing works. However, Hotfile, either unable or unwilling to comply with that request, has decided to shut down its site, effective immediately.

Hotfile’s closure is easily the biggest case of a cyberlocker being forced offline through legal action since Megaupload in January 2012. However, with nearly two years passed since Megaupload’s shuttering, the Web, especially for illegal downloads, is already a very different place.