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


Artists Rights Advocates Make Gains in 2015… Web/Tech Admissions Laid Bare.

So many of the issues we’ve been talking about for years are finally becoming part of the larger and more mainstream conversations about artists rights and an ethical internet.

Seems like there is a little bit more than a slight draft blowing on house of cards that Silicon Valley has built. Here’s a quick recap.


Pandora CEO Mike McAndrews first started teasing this talking point during an earnings call in October. You can read those comments at Re/Code. But it was the more direct article McAndrew’s authored for Business Insider that really cemented what we’ve been saying all along…

“This gray market is unsustainable. If consumers can legally listen to free on-demand music permanently without converting to paying models, the value of music will continue to spiral downward to the benefit of no one.”

There is no turning back from this admission.

It’s funny how in years past so many in the music and tech communities could not and would not admit to this simple fundamental truth often telling musicians the true value of their platform was “exposure” so artists could “tour and sell t-shirts”. Well it now looks like the wheels have been run off that nonsense for good.

What would be really great is to see Pandora join the fight with artists against Ad-Funded Piracy. Pandora, Spotify, YouTube and every other Ad-Supported music platform must be aware of the fact that the downward pressure from these infringing pirate sites not only diminishes the value of music, but also the value of advertising on legitimate and licensed paltforms.


Taylor Swift, Adele, Beyonce, Prince, Coldplay, The Black Keys, Thom Yorke and other artists have proved that Hits Don’t Need Spotify, but rather Spotify Needs Hits. The Wall Street Journal reports that Spotify is caving in on windowing.

Now, the service is caving in, according to people familiar with the matter.

In private talks, Spotify has told music executives that it is considering allowing some artists to start releasing albums only to its 20 million-plus subscribers, who pay $10 a month, while withholding the music temporarily from its 80 million free users. The company is only interested in withholding albums that can be kept off of other free music sites, such as Alphabet Inc.’s YouTube, for the same amount of time, one of these people said.

There is no turning back from this admission.

This means that Spotify has admitted that it is NOT a discovery medium, it is a retail outlet. Spotify is the digital cut-out bin offering the lowest amount of value to artists. The big problem for Spotify now is who decides who is a lessor or greater artist? Who is going to have that conversation with artists and managers that they are a lessor artist and not worthy of Spotify’s stamp of approval to only be streamed to paying subscribers? Ironically, but predictably the new boss is worse than the old boss.

As with Pandora’s admission about unlimited free streaming being unsustainable, Spotify also recognizes that Ad-Funded Piracy, particularly of the YouTube variety (and mentioned by name) must be managed effectively for windowing to work.


Here’s a shocker. YouTuber’s who create original content through their own investment of time, money and resources are outraged when Facebook users “Freeboot” (aka Pirate) those videos depriving the original creator of the revenue. Hank Green writes a post on Medium that breaks it down.

According to a recent report from Ogilvy and Tubular Labs, of the 1000 most popular Facebook videos of Q1 2015, 725 were stolen re-uploads. Just these 725 “freebooted” videos were responsible for around 17 BILLION views last quarter. This is not insignificant, it’s the vast majority of Facebook’s high volume traffic.

There is no turning back from this admission.

Every argument that has been used against musicians, filmmakers and other creators for using the DMCA to protect their work suddenly takes on new dimensions when the tables are turned.

Larry Lessig had convinced a generation that they we’re being criminalized because musicians were “out of touch” with the “sharing economy”. When musicians issued DMCA notices to YouTube they were vilified, taunted and publicly shamed “Sorry that video is no long available due to a copyright claim by the artist.


Perhaps the single greatest ruling of the year involves Cox Communications losing it’s safe harbor under the DMCA. Digital Music News reports on the jury verdict.

Ultimately, the court found the situation to be more complicated than that, with Cox now ruled guilty of both contributory and willful contributory copyright infringement by a federal jury.  The jury award is $25 million, though that probably represents a small prelude to damages that could ultimately push into the hundreds of millions.

There is no turning back from this verdict.

For those of you keeping score at home it is the DMCA abuse that has been used as a shield against copyright infringement liability by the internet and web/tech communities. Many businesses including many ISP’s and content hosting platforms such as YouTube have used the DMCA to build massively profitable businesses that are largely comprised of infringing works, otherwise known as User Pirated Content. That may be about to change thanks to this ruling.


In a recent interview Peter Sunde, the founder of The Pirate Bay, the flagship of the free culture movement admitted he had failed and was giving up. The most interesting admission by Sunde is at the end of the interview where he echoes what we and other’s have been saying for years.

So, is there like a concrete thing we should focus on? Or do we need to aim for a new way of thinking? A new ideology?

Well, I think the focus needs to be that the internet is exactly the same as society.

There is no turning back from this admission.

There is an excellent open letter in response to Sunde by David Newhoff at The Illusion of More that is well worth reading with a detailed look at why Sunde has failed. But it is Sunde himself who makes the most profound admission.

We have centuries of rule of law for civilized societies that respect and protect individual creators rights in the authorship of their work. The United Nations Universal Declaration of Human Rights, Article 27, part 2 states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The greatest irony here is that Sunde set up The Pirate Bay as an attack on capitalism, but he started by attacking artist’s and creator’s moral rights firsts. The paradox of “pirate logic” expands when one recognizes that The Pirate Bay was said to be making over four million dollars year. Yeah, that’s the way to fight capitalism, attack the ability for artists to survive and pocket four million a year. We couldn’t make this up if we tried.


  • Pandora attacks Spotify stating the Unlimited, Ad-Supported, On Demand, Free Streaming is Unsustainble.
  • Spotify attacks YouTube stating that Windowing Can Only Work If Windows Can Be Enforced.
  • YouTuber’s attack Facebook stating that Stealing and Monetizing their work Without Permission is bad.
  • Cox Communications attacked the DMCA stating “F*ck The DMCA” and lost.
  • Peter Sunde attacks Capitalism stating that… oh well, forget it… it’s nonsense.

There is a lot of work to be done, however these admissions set the framework for the future of these conversations going forward.

jean michael jarre IRM 1


Aurous has nothing to do with SOPA | The Illusion of More

In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous. And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders: That [insert plaintiff here] is behaving as though SOPA became law. Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:

Once again, @RIAA asks a court to order the entire world to block & filter an app they don’t like.

While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.

Bottom Line: Aurous is a Domestic Business

SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue.


Real Censorship | nycRUEN

During the protests against the Stop Online Piracy Act (SOPA), critics of the legislation portrayed its process of identifying foreign black market domains and then blocking them from gaining easy profits from, and access to, the US online audience, as “censorship” — full stop.

It bothers me that representatives from Google or the EFF, Reddit, etc. are so quick to lump in the attempt to protect artists rights with the political censorship of China or Iran. It is entitlement of the privileged at its worst and demonstrates to me how desperate some people are to excuse freeloading by any means necessary. But, the wonders of technology simply do not excuse clear cases of exploitation.


Ethical Fan Reports : EFF Agenda Theories

A fascinating look at the Electronic Frontier Foundation.

Rather than fighting for the rights of people who work to create content, EFF appears to fight for the rights of organized for-profit enterprises who appear to us to be breaking the law and appear to be profiting from illegally distributing digital goods with no intention of ever paying the owners or creators.


EFF’s John Perry Barlow is Wrong, says Google’s Chief Economist

The EFF assumes the worst – of everyone else.

An interesting look at the Electronic Frontier Foundation’s highly selective reasoning regarding the DMCA by David Newhoff at The Illusion Of More.

“The long and shameful history of the Digital Millennium Copyright Act file takedown abuse teaches us that intellectual property owners cannot be trusted with the enforcement tools they already have  we should hardly be giving them new ones.”  The “long and shameful” true history of the DMCA is how utterly useless the mechanism is for rights holders to protect their works.

Many creators have demonstrated over an over again that the DMCA notice and takedown procedure is spitting in the wind for even very large, well-funded producers, and completely hopeless for independent and smaller rights holders.

Meanwhile, it is the (internet/tech) industry that funds the EFF, who have made sure that DMCA remains a fly swatter in a storm of raptors.  And that’s bad enough, but to add insult to injury, McSherry sticks this fact in a paper bag and lights in on fire on our doorstep when she says the DMCA has a “history of abuse” by rights holders.  And one reason we can know she’s full of it, is the flimsiness of the cases her own organization chooses to take on as exemplary of this so-called abuse.


Two Sincere Questions for The Future Of Music Coalition #SFMUSICTECH

We notice that Future of Music Coalition has submitted testimony to congress asking that they “represent” artists in the Copyright Reform process begun by Congress.

So since they’ve  volunteered to represent us.  We feel it only fair that they answer these two questions:

1. Who selects your advocacy positions?  
AFM, AFTRA, NARAS, Nashville Songwriters Assn, and ASCAP all have democratically elected boards who set the organizations’ positions.  Do you have members who vote for leadership?  If not, who is making those decisions?

2. Who funds your organization?
Google is listed as your first sponsor of your primary event.

How much money do you get from Google?  Do you think you should be taking funding from a source many artists believe to be opposed to their interests?

FOMC Spondors

CES Fart Club aka The Slaptastic “Pro-Artist Copyright Policy Panel” features Anti-Copyright Advocates and Google Named Shills #2013CES

Not even kidding, just match the Anti-Copyright Google shills to the panelist list below. Talk about letting the fox guard the hen house. Wow, these are the same people who whine when not invited to trade organization and policy meetings like the TPP, but are so opposed to a balanced conversation they couldn’t actually invite a single artist rights representative! Ok, wow.

This is looking like a Silicon Valley Smug Alert, or otherwise known as Fart Club.

Beyond SOPA: Creating a Pro-innovation, Pro-artist Copyright Policy

Copyright policy – once an esoteric and legal backwater – now has a critical impact on our ability to work, play and communicate. In 2012, millions of Americans contacted their member of Congress to protest restrictive copyright proposals, while intellectual property issues took center stage in Washington and at the Presidential debates.

Join a group of entrepreneurs and DC policymakers as we discuss how to protect IP while maintaining a vibrant internet and creating new opportunities for content creators.

Moderated by:
Declan McCullagh, CNet Reporter

Featuring panelists:

Also on Tuesday January 8th, our own Hank Shocklee will be the DJ at The Innovation Movement party at Surrender at Encore from 7-10 pm.

Hit us up if you’re in town for the show – we’re still taking business meeting requests if you’d like to meet up.
See you in Vegas!

Google names names in amended ‘shills’ list – Employees, consultants, trade groups outed | The Register UK

In addition to the CCIA, Google named the Electronic Frontier Foundation, Public Knowledge, the Center for Democracy and Technology, and the Competitive Enterprise Institute as organizations who have received funds from Google…

Oh, and yeah… Mike Masnick is listed as a Google shill as well in the article at the link above too…

Trichordist Inaugural Nyan Cat Award- Mitch Stoltz of Electronic Frontier Foundation

Trichordist’s Inaugural Nyan Cat Award For Web Based Idiocy.

This weeks winner is Mitch Stoltz a staff attorney at the Electronic Frontier Foundation.   I caught him rudely and incorrectly lecturing someone on facebook.

Mitch Stoltz … Prove that the Pirate Bay is actually harming artists in any significant way, and that more copyright law will remedy that harm, and that new law will work better than market-based solutions like offering more lawful entertainment that’s easy to buy and use at reasonable prices. Then we’ll talk.

First Mitch Stoltz  you are a lawyer and you should know better.  The Pirate Bay and their ilk are  using artists copyrights without permission. You should know that in itself is a violation of the law and by definition is a “harm”. Taking away the artists right to chose how, where and when to exploit their own copyrights is “harm”.  The artist doesn’t have to show some other sort of “harm”.  Are you saying that any for-profit website should just be able to use an artist’s song however they want without compensation or permission until the artist  shows something like economic harm?  Where did you get your law degree?

Okay let me give you the benefit of the doubt.  Maybe what you actually meant was  “economic harm”.  Prove piracy economically harms artists? You are joking right?  It’s been proven time and time again.  There are 14 academic peer reviewed studies that conclude  piracy has a negative effect on revenue.  There is a very recent peer reviewed academic  meta-study by Stan Liebowitz (2011) which reviews the data from virtually all the academic studies and comes to the same conclusion.  I will gladly have copies sent to your offices if you can’t find them on the web.  But may I humbly suggest you venture outside the anti-copyright echo chamber every once in a while and you might learn something.

Regarding your implication that un-authorized exploitation  is the result of no one “offering more lawful entertainment that is easy to buy at reasonable prices?”   Have you never heard of iTunes?  Amazon? MOG?, Pandora?, Rhapsody?, Spotify? Netflix? Hulu?  How can you argue this  with a straight face?  Unauthorized file sharing exists because people get music for free and file-sharing sites make money from advertising or “premium” accounts.  Not because they are offering a better service.   This is a phony argument.  You know it.  I know it.  We all know it.  Be a decent human being and stop using it.

And please don’t throw around the term “market solutions”  unless you are prepared to honestly analyze the entire unauthorized use industry in the same light.  Unauthorized use takes away the right of artists to participate in the free market by forcing them to compete with free versions of their own products.  Refusing to enforce existing copyright  law and allowing rampant unauthorized  use amounts to mass collectivization.  A sort of digital maoism and that, my friend is the opposite of “free markets”.

Further the for-profit-unauthorized-use industry is what inhibits the formation of additional legal media sites. Not the other way around. Basic common sense should tell you this.  Why would people buy cars legally if they could get stolen ones for free with no threat of social or legal punishment?  Who’s gonna open a new car dealership?  This is the same nasty quirk of human nature that makes normal law abiding citizens loot.   Arguing that nothing is to be done in this situation is an unethical and immoral choice that YOU are consciously making.

What people like you refuse to understand: How are individual independent artists supposed to take on the entire for-profit un-authorized use industry?  99 percent of the people harmed by file sharing are the independent artists, the audio engineers, the roadies,  the independent recording studios, the independent and specialty labels, the independent record stores, the independent publicists, the bus drivers etc etc.  The vast majority of people harmed by unauthorized exploitation of artists rights are not rich and powerful. Unlike the EFF they do not have washington lobbyists to argue their case or employ staff lawyers to troll the internet arguing for their rights. The working class of the music business do not have foundations that receive large corporate donations to help them fight for their rights. The 99% are the 99%!  The basic point of the law and civilization is to protect the weak from the corrupt and powerful. When you were an idealistic young law student could you ever imagine that one day you would be arguing against the weak and powerless and for the corrupt and powerful?    How do you sleep at night?

I know what you are gonna argue next.  May I?

You agree with me on artists rights but inhibiting access to websites that  enable unauthorized file sharing, human trafficking, underage prostitution, counterfeit drugmaking and  child pornography will require “breaking the internet”.   In addition you will argue that there is something deep in the architecture of the web that will not allow any filtering of the web that won’t also be a danger to free speech.   I’ve got that right? Right?

This is absolute bullshit.  And I should know.  I was pushing and “acking” packets back when there was only TCP  without the IP.  If you don’t know what I’m talking about you can’t possibly know anything about the architecture of the internet.  There is nothing in the architecture of the internet that makes policing and free speech incompatible.  Anyone that that says otherwise does not know what they are talking about or they are willfully misleading the public under color of technological authority. 

To those that are not technologically savvy,  this is like saying that you can’t have any sort of traffic laws on the US Interstate Highway System because it will inhibit our freedom.

What the glassy eyed internet “freedom” types do not understand is that it’s not “the pipes’ of the internet that give us free speech.  It’s our democratically empowered institutions that give us free speech.   Plenty of dictatorships have “free” pipes.  What good is a “free” internet if the secret police come to your house and murder you for speaking out?  or Anonymous takes down your website for saying something they dislike?  According to your own organization Mexico has one of the most open and free internets on the planet.  Yet bloggers in the northern states routinely self censor so the criminal cartels won’t murder them.

Remember we had freedom before there was an internet.

Final question: Is it really the Electronic Frontier Foundations position that The Pirate Bay and other artist exploitation sites do not harm artists?  Cause I’d love to debate you on that.  We can do it at the University of Georgia next fall. I’ll see if I can get the Law School to sponsor it.   You game?  I’ll give you the Nyan Cat Award at the same time.



EFF’s John Perry Barlow is Wrong, says Google’s Chief Economist

What Artificial Scarcity?

John Perry Barlow is the outspoken EFF co-founder who wrote the sophomoric and nonsensical manifesto for the internet. Much of Barlow’s principal talking points regarding his complete disregard for the protection of artists rights in the digital age centers around the idea that “property” especially of the intellectual kind should not exist on the internet.

“Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”- John Perry Barlow

The fact that this is posted on the EFF website should be at the very least alarming, if not completely absurd for a policy group to display publicly as part of its mission.

There is much talk online by freehadist’s that digital bits are worthless and the cost of a copy is zero, therefore all content online has a near zero marginal cost and should be freely available. Of course any rational and reasonable person would know that this is nonsense due to the fixed cost of production on information goods. Hell, even Google’s own Chief Economist Hal A Varian “get’s it” as outlined in his book, Information Rules:

Page 83.

John Perry Barlow asserted that “Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression… We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.” Is Barlow right? Is copyright law hopelessly outdated? We think not.

Continued, Page 93.

“Bitlegging” can’t be ignored: there’s no doubt that it can be a significant drag on profits.

Bitleggers have the same problem that any other sellers of contraband material have: they have to pet potential customers know how to find them. But if they advertise their location to potential customers, they also advertise their location to law enforcement authorities. In the contraband business it pays to advertise… but not too much.

This puts a natural limit on the size of for-profit illegal activities: the bigger they get, the more likely they are to get caught. Digital piracy can’t be eliminated, any more than any other kind of illegal activity, but it can be kept under control. All that is required is the political will to enforce intellectual property rights.

Fascinating that Google is so actively involved in exploiting the content that other’s have paid to create in production costs, as Google profits from the marginal costs. Clearly, the value of monetizing content without fixed production costs is not an unknown concept to the company given that their chief economist literally wrote the book on information economies. As a matter of fact, that appears to be a damn good model to build advertising around, who knew?

Also note the emphasis on political will power.  In fact, we’ve seen that Google seems to have plenty of that to oppose the protection of artists rights.

[update] Here’s John Perry Barlow, sparring with Bob Weir at SF Music Tech in Feb of 2012. Barlow repeats the same talking point in trying to dismiss Weir’s concern over compensation for artists online. Jump to 5:10 in the video to hear Barlow say, “I think the answer is there, we just have to, we just have to get the property model out of the picture… “


see also : Musicians For An Ethical Internet