By Chris Castle [This post first appeared on MusicTechPolicy]
[Trichordist readers will not be surprised to know that Artist Enemy No. 1 Senator Ron Wyden (aka Senator Data Center) is leading the charge of the insane bagmen to impose a compulsory license on any content that gets in the way of Facebook, Google and the metaverse.]
Google has led a long march through the institutions to weaken copyright by propping up proxy warriors who mean to take us in a rush. That effort has now come to a head in Maryland with a bizarre statute that got through the Maryland legislature Tommy Carcetti-style–a state law compulsory license for ebooks. (Maryland Education Code §§ 23-701, 23-702).
The Maryland law is wrong for so many reasons, but is also an unconstitutional usurpation of the federal government’s exclusive domain over copyright. This is a solution in search of a problem–ebooks are already routinely licensed to libraries under voluntary agreements at a market rate. The legislation would allow the State of Maryland to force the authors to license but the state would set the rates. Songwriters can tell you this is a nightmarish process at the federal level–and by the way songwriters, you’re next, just see the fever dream of compulsory licenses for sync (see Here Comes the New Dark Age: Blanket Licenses for Everything Based on the MMA). Just because a library is a non-profit doesn’t mean they get everything free or get to dictate the price. The librarians certainly don’t work for free so how can they expect the authors to do so?
There has never been a compulsory license for books and you have to believe that the Maryland law is a probing operation by Big Tech to see whether their land grab works at the state level. Do you think the oligarchs could jam a compulsory license for books through Congress if their true invisible hand was seen? Unlikely. If they couldn’t do it with wind in their sales from a noxious disease that devastated those pesky small businesses but enriched Big Tech beyond comprehension, it seems unlikely that they could get it through Congress during the nadir of Big Tech popularity.
This machine-state strategy is also an in-your-face rebuke to Senator Thom Tillis’ opposition to the Internet Archive’s pandemic rights-gouging practices, a rebuke that is supported by the “Library Futures” front group (which bears a striking strategic similarity to Engine Advocacy). Needless to say these “metashills” include all the usual suspects among their members including the Internet Archive next to the panoply of anti-artist groups.
The way shills become metashills is that they get grouped togther–economical for the donors and makes them look bigger than they are like a self-inflating animal.
Why does an obviously unconstitutional bill become law? Unhinged, you say? Blatantly unconstitutional from another looneyverse? True, and yet there it is, a monument to bagmen and shills. There is no other explanation for how this legislation got through that paragon of high-minded public policy, that epitoma suprema of the virtuous life and good government where corruption fears to tread also known as the Maryland General Assembly. (Followed closely in Annapolis’s sister city Albany, another hotbed of honesty.)
What about Google’s long march through the institutions? You may have neutral to fond memories of librarians from school days but I encourage you to look deeper. Is that librarian a helpful smart person? Or someone else. Is that librarian someone who grew up feeling ignored and overlooked like the one who never got asked to do the fun things? Is that librarian the one who really wrote the Great American Novel but had that Creative Writing Masters Thesis go–gasp–unpublished? Is that librarian someone who is ripe for manipulation and grooming by unfathomably rich people in the addiction business who claim to understand their problems and want to be their allies to Alinsky those who dared to commercialize their beloved books, those helpful tech moguls who want to build the Digital Library of Alexandria for the greater good and promise to not be evil? You know, for all mankind?
Whatever actually happened, Google has weaponized libraries starting at least with their mass digitization project that ultimately became the kloogy Google Books that one academic described as a “disaster for scholars” and that was the subject of criticism as culturally biased by no less than Jean-Noël Jeanneney, a former president of France’s Bibliothèque nationale in a scathing critique.
So not all librarians sip the Kool-Aid imported from the Googleplex or aspire to heated bidets. And not all state houses are as welcoming to Google and the other Tech Oligarchs as they were even a year ago or so when Senator Tillis recognized that the Internet Archive was being weaponized by its honcho Brewster Kahle (pronounced “kale”) against the world’s authors. Why do I think this? Because an anonymous whistleblower librarian gave us some insight into what is really going on in the faculty dining room in an open letter to Brewster Kahle during his pandemic-induced land grab he called the “National Emergency Library”:
You claim [the Archive is a] charitable organization. Charitable organizations provide money from their own funds to those in need or they collect donations of money or property, voluntarily offered by the original owners, to distribute to those in need. Taking from others despite their objections and offering the stolen material to those in need does not fall into the description of a charitable organization. It is, as has been pointed out, looting.
Your activity undermines the copyright system for your own benefit and in the financial interests of some of the wealthiest corporations in history. As has been said, the Internet Archive is not a public service but a pirate website. You are not here to help others- you are helping yourself to others’ property. It’s unfortunate that your supporters can’t admit this, or don’t realize it.
Well said. And let’s understand that what the Silicon Valley oligarchs really want is a true compulsory license for all works of copyright–which I think is exactly what the eponymous Mr. Kahle was actually after with his National Emergency Library, what Google wanted with Google Books, what YouTube wanted with the DMCA, and what Grokster and Morpheus wanted with file sharing. (Note that Napster was always trying to get a license, however hamhandedly, and shut down when they couldn’t get one.)
The Anonymous Librarian goes on to offer a lifeboat, which, unfortunately, will be summarily ignored by the metashills. While she was speaking of the pandemic effort at a compulsory license, these are words that will ring through the history of all these misguided efforts at undermining copyright:
It is a tragedy within a tragedy that anyone supports you in this effort to steal livelihoods away from authors who struggle to create the works that we love to read, as is evidenced by the glowing praise for the books you have taken and given away.
Brewster, you claim that the Internet Archive is a library- but do you want to know what real libraries do? They pay license fees for e-books and then allow their users to access the books. To be decent and truly human, you will apologize to the world and discontinue your grotesquely unfair challenge to authors. You will transform into something resembling a real library and provide funds to license access to these books for the benefit of the public. You have enough financial assets to pay for licenses to use these works. It has been pointed out that you have more than 100 million dollars in your Kahle-Austin Foundation [Now where might that $100 million have come from?]. You could provide the books to the public by paying license fees to authors and publishers- that is what real libraries do.
You could do this, Brewster, and then you would get real praise, and you would be worthy of it.
Pitch perfect summary of what is going on in Maryland and what may be going on in New York. In order to stop the Maryland bill from going into effect in 2022, authors are going to have to dip into their pockets to litigate against states with unlimited litigation budgets backstopped by the biggest corporations in commercial history. This is a familiar role to anyone trying to protect artist rights which is a group that clearly doesn’t include the Maryland General Assembly or Maryland Governor Larry Hogan who should all be ashamed of themselves. If you want to tell the Governor what you think of his unconstitutional travesty, you can contact him here.
Worse yet, it appears that New York has passed similar legislation that may be sitting on the Governor’s desk. I guess the real question is whether New York Attorney General Leticia James would like to come by the Algonquin Hotel to explain why New York has a compelling interest in crushing New York authors.
Let’s get back to justice…what is justice? What is the intention of justice? The intention of justice is to see that the guilty people are proven guilty and that the innocent are freed. Simple isn’t it? Only it’s not that simple.
From …And Justice for All, written by Valerie Curtin and Barry Levinson.
Law out of balance is no law at all. I suggest that the DMCA is just this imbalance and the unbalanced DMCA has created other imbalances that in turn transferred wealth from the many to the few. One of the biggest dangers to our society currently and in the future is erosion of the third estate (or the “musician’s middle class”) into the concentration of wealth in fewer and fewer hands. This erosion is accompanied by its inevitable trend toward authoritarianism enforced by the mandarin class of Silicon Valley. Not to mention the policy laundering operations funded by transferred wealth like the Chan Zuckerberg Initiative (that’s the Chan Zuckerberg who asked Xi Jinping to name her then-unborn child).
Serfing in the Apocalypse
This kind of neo-feudal concentration of wealth is most obvious in the tech oligarchy, especially in companies like Facebook, Google and Spotify with their dual class supervoting stock that concentrates the corporate decision making and wealth not in the shareholders but in the hands of Mark Zuckerberg, Sergey Brin, Larry Page, Eric Schmidt, Daniel Ek and Martin Lorentzen. And then there’s Amazon with the world’s richest man, Jeff Bezos—the future space mogul. (Bezos’ Blue Origin and Google’s adventures in biometrics and AI in China are examples of the second order knock-on effects of the Internet oligarchy become defense contractors.)
I also suggest that one of the driving forces that has accelerated this concentration of wealth and power over the last twenty years has been the 1998 Digital Millennium Copyright Act. Unless substantially reversed, the DMCA will continue to accelerate the wealth transfer from creators to oligarchs. It must also be said that state actors or near state actors like TikTok either profit from, promote or protect massive online piracy based in DMCA-type alibis. This topic is another conversation, but anyone who has dealt with the huge pirate sites has felt the cold hand of truly bad guys with top cover. In addition to the tech oligarchs, Russian oligarchs think the DMCA idea is really pretty groovy.
The DMCA Alibi
You’ve probably heard the expression “notice and takedown” applied to copyright online. It was the DMCA that created the “notice and takedown” alibi regime for piracy and near-piracy. These notices have come to be called “DMCA notices” and the Congressional plan that implemented that call and response has unambiguously failed. You may have also heard the expression “value gap.” The “value gap” is shorthand for illicit profits made from exploiting the DMCA loophole which itself is a prima facie case of law out of balance. The “value gap” is the predictable consequence of “notice and takedown.”
Google alone has received nearly five billion DMCA notices just in the current reporting period. That’s 5,000,000,000. I’m still waiting to see the conga line of Members of Congress and Senators who say that was exactly what they intended (and many who were involved in drafting the DMCA are still serving). I’m also waiting to hear lawmakers acknowledge that when something happens 5,000,000,000 times, it’s a feature not a bug just like the Ford Pinto’s exploding gas tank. No one ever asked them until Senator Thom Tillis began a series of hearings before the Senate Judiciary Committee’s Subcommittee on Intellectual Property earlier this year.
If we’re lucky, in coming days Senator Tillis will be introducing a legislative overhaul of this gaping wound reflecting the many hearings he’s chaired this year to investigate the DMCA imbalance that created one of the biggest wealth transfers in history. That wealth transfer is not only caused by the perpetual state of piracy or near piracy created by the DMCA, it is also caused by the cost of enforcing copyright that has fallen on all creators in all copyright categories. Not to mention the sheer scale of the burden imposed by lawmakers on creators. Hopefully Senator Tillis’s investigation will bear fruit and will right the imbalance.
And as we have exhaustively endured for over 20 years, law out of balance is no law at all. In the music business, performers—like all creators—have been effectively powerless to stop this latest great imbalance in justice created by the copyright infringement safe harbor disaster and piracy force multiplier. That value gap has hollowed out the performer community (as well as record companies) after 20 years of wealth transfer to the Big Tech oligarchs from commoditizing the recordings that performers created. And Big Tech have used their DMCA-driven profits to hire even more lobbyists around the world to create even more loopholes in the human rights of artists in the endless maelstrom of Malthusian decline. That decline manifests itself in the ennui of learned helplessness of creators around the world as companies like Google seek to impose Google’s version of notice and takedown around the world.
Notice and Staydown
But—there is a new term in our lexicon that hopefully will appear in new legislation from Senator Thom Tillis: Notice and stay down. What does it mean? It’s a mid point between a pure negligence standard and the intent of the DMCA to provide a responsible alternative dispute resolution system. Instead of the endless whack a mole iterations of catch me if you can posting and reposting of infringing works, online service providers would be required to actually do the right thing and keep the infringing work off of their service. It’s really just a properly enforced repeat infringer policy. It’s hard to believe that adults persist in this whack a mole but they do. There’s big money in those moles that don’t actually stay whacked.
How in the world did we arrive at the status quo? A page of history is worth a volume of logic to fully understand this leading edge of the Great Reset.
The Great Copyright Reset
In the late 1990s, the large ISPs had a legitimate concern about this Internet thing. If ISPs (like Verizon or AT&T) are providing ways for the many to connect with each other over the Internet, they were inevitably empowering essentially anonymous users to send digitized property to each other by means of that same technology. That property might take the form of an email file attachment (or link to a file) that contained a copy of a sound recording, movie or an image. ISPs wanted to be protected from responsibility for things like copyright infringement they had nothing to do with. (This knowledge predicate is where the games begin.)
The ISPs needed a zone in which they could operate, a zone that came to be called the “safe harbor.” The deal essentially was that if you didn’t know or have a reason to know there was bad behavior going on with your users, or didn’t have knowledge waiving like a red flag, then the government would provide a little latitude to reasonable people acting reasonably.
This safe harbor idea was a great privilege conferred upon online service providers and balanced the democratizing nature of the Internet with the need to enforce the law against bad actors. Lawmakers were caught up with the idea of bringing people together. What they didn’t realize sufficiently was some of those people previously only met on Death Row.
Artists’ rights to protect themselves were not entirely extinguished by this new safe harbor for big companies but were severely burdened. Record labels and film studios had to devote substantial resources to whack a mole that could have been spent on their core businesses–making records and movies. If a copyright owner thought there was infringement going on that didn’t qualify for the safe harbor, then the intention was that individual artists shouldn’t have to file a lawsuit, they could just send a simple notice to the service provider. If it turned out that there was a bona fide dispute over the particular use of the work, then the parties could go to court and hash it out if necessary. The notice part of “notice and takedown” was perceived as an inexpensive remedy that would be available to artists who did not want to take on a lawsuit as well as ISPs with litigation budgets. The Congress did not factor in the charlatans who would come later like Google and Facebook, neither of which existed in 1998.
This is documented in the legislative history from 1998, i.e., both before Google and and Facebook and before the Electronic Frontier Foundation discovered Morpheus or Mrs. Lenz:
This ‘‘notice and takedown’’ procedure is a formalization and refinement of a cooperative process that has been employed to deal efficiently with network-based copyright infringement.
Section 512 does not require use of the notice and take-down procedure. A service provider wishing to benefit from the limitation on liability under subsection (c) must ‘‘take down’’ or disable access to infringing material residing on its system or network of which it has actual knowledge or that meets the ‘‘red flag’’ test, even if the copyright owner or its agent does not notify it of a claimed infringement.
Sounds very civilized, don’t it? Sounds like something that could be considered to be just. How could something that sounded so right go so wrong so fast? Notice and takedown has become notice and shakedown after the charlatans arrived.
The Inevitable Notice and Shakedown
The one thing that nobody thought was that it was the intention of Congress that there would be ad networks, multinational corporations and international piracy rings whose business model is in large part built on exploiting the “notice and takedown” loophole in that safe harbor.
These organizations ignored the DMCA’s knowledge predicate and repeat infringer requirements and adopted what is essentially a “catch me if you can” version that allows them to infringe until they get caught by the copyright owner and then continue to infringe if they are not sued–the exact opposite of what the DMCA intended. What once was a reasonable exception was almost immediately tainted as a massive loophole that the government has done little to nothing to correct much less enforce.
The “safe harbor” is no longer a loophole, it has graduated to a full blown design defect as indiscriminately harmful as any exploding gas tank. So now when artists ask that some common sense be applied to this grotesque distortion of the law-supposedly passed in part for the benefit of artists-some would tell artists that it’s not up to government to tell them what the law means. As Kafka-esque as that sounds.
Will You Believe Me or Your Lying Eyes?
Isn’t it obvious that having to send a notice for the same work on the same service hundreds of thousands of times an absurd burden? In other words — is the government actually defending whack a mole with a straight face? Did the government actually intend that 5,000,000,000 take down notices in a year are a new normal? If they did, evidence of that intent is not in the statute or the legislative history. Would Congress offer protection to an exploding gas tank afterthey already knew it was a threat because it was designed that way?
Whack a mole is not automatic-it requires human intervention. As we saw in BMG’s precedent setting and victorious lawsuit against the ISP Cox Communications over Cox’s grotesque failure to enforce its repeat infringer policy, a person has to decide to repost the infringing file even while knowing the file is or is very likely an infringement. Whack a mole actually defies the entire purpose of the safe harbor-whack a mole is not a little latitude for reasonable people acting reasonably.
Whack a mole is a design defect. Is it just that Congress should protect any design defect?
Let’s get back to justice. Not only does the status quo require creators to tell lawmakers (including courts) what their law means, the U.S. Government has utterly failed artists with the fundamental justification for the Sovereign common to our jurisprudence and political theory.
Crucially, it must be acknowledged that the government has failed to protect artists. The government has failed to enforce the laws, essentially overseeing and giving legitimacy to one of the largest wealth transfers of all time from the hands of the many into the overflowing pockets of the few. All based on an extreme interpretation by Google and its ilk of the government’s laws. Direct challenges to these interpretations involve costly and protracted litigation — with the inescapable whack a mole continuing all the while.
It would not be unreasonable for artists to think that the whole thing smacks of crony capitalism, particularly when one of the biggest beneficiaries of the loophole is a major lobbying influence like Google. While some ISPs have at least tried to address the issue, the Googles of this world are noticeably absent.
So I would beg pardon here-I do not feel that it should be necessary for artists to tell the Congress what would be acceptable in the way of parameters for “notice and stay down”, at least not initially. I think artists have the undisputed right to ask-actually to demand-of the Congress, what was their intention?
Enter the Foxes
Don’t underestimate the knock-on effects of the DMCA wealth transfer that funds self-preservation for the DMCA beneficiaries. Who can forget Google’s dominance of the Obama Administration? It’s clear that like Google learned from Microsoft, Facebook has learned from Google (and both joined forces to try to defeat the European Copyright Directive, so expect more of the same foxes coming for the henhouse when Senator Tillis introduces his bill).
We note the irony that the ethics czar for the Biden transition team is from Facebook, as is the director of legislative affairs a former Facebook lobbyist. A former Facebook board member co-chairs the transition team and there is a sprinkling of other former Facebook board members in other roles. Three transition team members are former Chan Zuckerberg Initiative employees. And Google’s Eric “Uncle Sugar” Schmidt will have a leading role.
Once they get into power, you can expect that DMCA reform will get exponentially harder, but the Tech Transparency Project will have even more work to do.
Senator Tillis Could Make Real Progress Toward Reversing the DMCA Cronyism
The safe harbor is the government’s law. They wrote it. They voted for it. They represented voters—including creators—when they did so. They presumably have some idea what it is supposed to mean. Many who voted for it are still in the Congress. The Congress needs to come clean on what they intended. Isn’t that the better place to start? Why should artists have to tell the Congress what the Congress’s intention was?
If it was the intention of the Congress (and President Clinton who signed the law) that the current state of whack a mole was the plan all along, then let them say that — and perhaps more importantly, point to where they told the electorate that was their intention at the time the DMCA was passed in the Congress and signed into law. If it is not their intention, then it should be reversed with no daylight.
Google alone is on track to receive over five billion take down notices this year alone. If this was the Congressional intention, then let them say that. If their intention was there should be no upper limit on the number of takedown notices any one company could receive in a year, then let them say that. And explain themselves.
And let’s be clear-Google does not appear to view these billions of notices as a design defect, although that would be a perfectly reasonable conclusion. And neither do Facebook or Twitter. One has to believe that if a company the size of Google viewed billions of notices as a problem, they could fix that problem. They haven’t. In fact the number of notices grows exponentially every year. Perhaps they view billions of DMCA notices as a feature set. Because along with the billions of notices comes a fortune for Google just like Facebook, Twitter and the rest. Big Tech’s defenders would say of Pirate Bay and Megavideo, they’re just like Google. Yes, that’s right. Google is just like them and they are just like Google. Serfing on the DMCA apocalypse.
What is the intention of justice? That the guilty are proven guilty. But if lawmakers won’t tell us what it means to be guilty much less prosecute the politically connected wrongdoers, then what justice is that?
Notice and stay down is a reasonable reaction to whack a mole, and one that is entirely consistent with the original intent of the DMCA notice and takedown regime that has gone so far wrong. Hopefully Senator Tillis will be leading the charge.
It might actually be that simple. Notice and stay down.
As Arthur told the jury, “If he’s allowed to go free, then something really wrong is going on here.”
The eponymous Mr. Kahle announced with the usual huge heaping rasher of sanctimonious twaddle straight from the mollycoddle mumbletank that the so-called “National Emergency Library” was closing early. Not because Brewster Kahle did anything wrong, not because he got a Tillis-gram, no no no. It’s because there are other resources for the “Internet bound.”
Internet bound. You read that right. Yet the crepuscular “National Emergency Library” is fading into the sunset according to an Internet Archive blog post. Personally, I’ll believe it when I see it.
Today we are announcing the National Emergency Library will close on June 16th, rather than June 30th, returning to traditional controlled digital lending. We have learned that the vast majority of people use digitized books on the Internet Archive for a very short time. Even with the closure of the NEL, we will be able to serve most patrons through controlled digital lending, in part because of the good work of the non-profit HathiTrust Digital Library. HathiTrust’s new Emergency Temporary Access Service features a short-term access model that we plan to follow.
We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic.
Yes, those heartless “commercial publishers”. You see, the saintly Mr. Kahle is not motivated by money (having already enriched himself with his snout in the Silicon Valley cash tank). Those commercial publishers were enforcing their rights. And during a pandemic, no less. Any self-reflection there? Not a bit. No thought that Mr. Kahle himself was taking advantage of a pandemic to engage in price gouging, which is just white-collar looting. As someone who grew up with both hurricanes and earthquakes, I have zero sympathy for the dude.
But this is the usual running for the exits that these people all try to hide behind. You sue them for bad behavior and they think that if they just stop doing the bad thing once they were caught and called out, you should welcome them back to humanity.
Not really.
As the IA blog post takes note:
[T]his lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. [Not really…just Mr. Kahle’s provocation. And…cue violins…] This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.
Not bloody likely. When did Noah build the Ark? Before the rain, get it? You take precautions before you are forced to by circumstances.
If you get down on your knees and beg to be sued, don’t be surprised if you are. And when you are, at least have the courage to own up to the begging. But wait…I thought that there was all that stuff about fair use was his superpower? What happened to that?
MTP readers will no doubt have been following the absurd “National Emergency Library” scam that anti-artist activist Brewster Kahle is pushing to the great satisfaction of the BrewBros. BrewBros based the “National Emergency Library” on a “superpower” interpretation of fair use (no, that’s really what they said) that is yet another example of a very Googlely weaponization of fair use.
The BrewBros have caught the attention of Senator Thom Tillis, chair of the U.S. Senate Judiciary Committee Subcommittee on Intellectual Property, who sent this letter into the heart of darkness today, which should finally provoke the Google lobbyists to come out into the daylight (looking at you, Matt):
Mr. Brewster Kahle
Founder and Digital Librarian
Internet Archive
300 Funston A venue
San Francisco, CA 94118
Dear Mr. Kahle:
I write to you as Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, following the Internet Archive’s recent announcement of its National Emergency “Library” initiative amid the coronavirus pandemic. The Subcommittee has jurisdiction over our nation’s intellectual property laws, including copyright law. As you may know, in February my Subcommittee began a year-long review of the Digital Millennium Copyright Act with an eye toward reforming it for the twenty-first century.
I recognize the essential nature of books and publishing efforts during these challenging times. As schools, libraries, and bookstores have closed their physical locations across the nation, continued access to books is important to ensure that students and teachers have the materials they need for remote learning. It is also important that the general public has access to various types of books and written materials. I have been encouraged to see authors, publishers and other copyright owners ease these struggles of students, parents, educators, and the general public. Among other efforts, they are providing valuable content and online courses for free, providing flexible licenses for distance learning and enjoyment, and extending access to audiobooks and ebooks. These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest.
As you can see, I deeply value access to copyrighted works, but that access must be provided within the bounds of the law-even during a national emergency. I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your “Library” is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.
As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.
Sincerely,
Thom Tillis
Chairman
Subcommittee on Intellectual Property
[This is a version of a letter I sent to the Senate Subcommittee on Intellectual Property on March 10 to call attention to various discrepancies in the proposed witness list, especially the undisclosed presence of the Pirate Party at a hearing at the world’s greatest deliberative body. And typically, Julia Reda never disclosed her affiliation in her witness bio or in her written testimony. Why so secretive? You can watch the video of the hearing here. Apparently the rules of the subcommittee prevented Senators from questioning the witnesses, which allowed Google’s amen chorus to simply spew propaganda into the hearing record.]
I want to thank the Subcommittee on Intellectual Property for holding the referenced hearing. Digital piracy is of ongoing concern to all contributors to the creative community be they photographers, film makers, authors, songwriters, musicians or featured artists. This is particularly true after catastrophes like the cancellation of SXSW in the Live Music Capitol of the World. Creators very often feel overwhelmed by the forces that use the Internet and the U.S. banking system to unlawfully extract value from their copyrights. Digital piracy seems to benefit everyone in the piracy supply chain except the creators of the works driving these racketeering operations.
Unfortunately, the hearing witness list seems to indicate an overwhelming influence of Google and Google proxies as well as a representative of the Pirate Party. However gloomy this turn of events may first appear for creators, it presents an opportunity for the Subcommittee to question the witnesses about the influence of Big Tech on efforts to reign in pirate operations, particularly off shore pirate operations. I raise a few points of reference that I hope may prove useful to the Subcommittee and respectfully ask that you request that this letter be made a part of the Subcommittee’s record for the hearing.
Off Shore Pirates Profit by Interfering in US Markets
Unlike the historical pirates who were declared hostis humani generis under admiralty law, or the modern pirates who hijack cargo ships such as the Maersk Alabama and are stopped by Operation Allied Protector, digital pirates defy the nation state relatively openly and brazenly. Digital pirates leverage anonymity, geography and extradition treaties to wrap themselves in the laws they cherry pick and use as loophole-driven alibis. They also engage in lawfare and have organized political movements from Kim Dotcom’s Internet Party to the Pirate Party. Pirates also embrace a host of academics and corporate legal departments that push their views. For example, Stanford hosted a July 2007 Pirate Party cash-preferred political fundraiser for anonymous donors that also had stops at the Googleplex[1] and the O’Reilly conference. The examples go on and on.
Despite the penetration of streaming services, music piracy is still a major problem for creators. According to the IFPI, “forty percent of Internet users access unlicensed music content.”[2] The Subcommittee’s focus on the issue is of great public policy importance.
There is a long history of pirate websites locating themselves outside of the United States but marketing themselves to U.S. users in a deceptive manner that makes it difficult for consumers, including both consumers and brands, to distinguish an illegitimate site from a legitimate one. As the UK’s Serious Organized Crime Agency warned advertisers, “By incorporating advertising from recognized brands the website administrator attempt[s] to make the site appear legitimate.”[3]
This practice is most pronounced with sites that profit from U.S. content by selling advertising or subscriptions to enrich themselves from trafficking in pirated works.[4] There is a continuing controversy regarding the source of the advertising[5]published on these illegal sites coming from Google entities through various intermediaries and resellers[6] as well as the use of the banking system to fund the pirates.[7]
The leading torrent site to this day is The Pirate Bay which has a recent Alexa rank of the 169th most visited site on the Internet.[8] Founded in Sweden 17 years ago[9] contemporaneously with the Pirate Party, The Pirate Bay personifies the off-shoring of piracy and has been consistently mimicked by hundreds of other pirate sites such as YTS.It, 1337x, RARBG, NYAA.si, Torrentz2, EZTV.io, LimeTorrents, FitGirl Repacks and Tamil Rockers. Pirate streaming sites follow the same offshoring practice and are an even bigger source of piracy than torrents.
These pirate sites invariably purport to wrap themselves in the DMCA safe harbors but locate themselves in havens outside of the U.S. that are well outside the reach and resources of creators forced to play the Superbowl of international whack-a-mole. These pirate sites have no intention of subjecting themselves to the jurisdiction of U.S. courts but want the benefits of U.S. law, all the while marketing themselves in the U.S. in direct competition with the creators, including creators, whose works they steal.[10]
The digital pirates’ fascination with creating these offshore “pirate utopias” (or “Temporary Autonomous Zones” or “TAZ”) dates back to the 1991 hacker’s handbook by the anarchist Peter Lamborn Wilson entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism.”[11] Julian Assange promoted the idea of a TAZ-type “offshore publications center” for Wikileaks in the 2009 document “Here be Dragons: Going from Defense to Attack.”[12] Assange proposed Iceland as an offshore center and pirate utopia that would allow Wikileaks to operate freely. Birgitta Jónsdóttir, a founder of the Iceland Pirate Party,[13] was one of the sponsors of the “Icelandic Modern Media Initiative”[14] that would have essentially codified Assange’s goals and is gradually coming to fruition at the Icelandic Parliament. Again, the idea was to establish an off-shore haven for activity that would otherwise be illegal—a geographical safe harbor or TAZ well beyond the legislative safe harbors that largely accomplish the same purpose inside major economies like the United States in the name of protecting “intermediary liability” for the largest corporations in commercial history.
Pirates embrace the nation they spurned once they get caught. Companies like Megaupload[15] located themselves in Hong Kong but put up a smokescreen of complying with the DMCA notice and takedown procedures while marketing themselves in America. They often use the U.S. banking system to receive illicit payments from users or advertising revenue from companies like Google and Adbrite.[16] Even in the handful of cases where copyright owners are able—at great expense beyond the means of most creators–to get these massive infringers in front of a U.S. judge such as with the Panamanian company Hotfile,[17] the defendant tries to wrap themselves in the protection of the DMCA safe harbor.
The Justice Department’s well-known experience with trying to extradite the Megaupload conspirators since 2012 is a prime example of the lengths to which these brazen racketeering organizations will go to avoid U.S. justice while simultaneously claiming the protection of U.S. law. If the Megaupload conspirators ever do find themselves before Judge O’Grady, they will no doubt seek the protections of the DMCA because they argue Megaupload is “just like Google.” In fact, Google submitted an amicus brief in the Hotfile case arguing that massive infringers should be protected by the DMCA—which makes Google’s shadowy presence at the Subcommittee even more telling.
Drafters of the DMCA would probably never have thought of themselves as creating a pirate utopia, but the safe harbor concept is near and dear to the Pirate Party, its backers and supporters. Statutory safe harbors—or protection from “intermediary liability” as Google might call it–are more than a little reminiscent of the TAZ. It is thus striking that the Subcommittee is to hear from Julia Reda, the long-time representative of the Pirate Party in the European Parliament, as well as so many other beneficiaries of Google’s support.
Pirate Party Witness Will Offer Big Tech’s Anti-Copyright Propaganda
I find it hard to understand why the Subcommittee has invited a leader of the European Pirate Party to testify at a hearing devoted to learning from efforts to reign in digital piracy in other countries. I also find it rather odd that Ms. Julia Reda failed to disclose her German Pirate Party association in her public witness biography or her witness statement when last accessed today, which is ambiguous at best and misleading at worst. And typical of the duplicity we have come to expect from her.
Ms. Reda was the sole representative of the Pirate Party in the European Parliament for many years.[18] Her Pirate Party affiliation is directly relevant to her testimony. The Pirate Party, as the name implies, is closely tied to promoting piracy using the tiresome shibboleth of “sharing culture” in the words of Ms. Reda, or conversely the equally empty vessels of making copyright “progressive” and “fit for the future,” or simply the vague “access to knowledge” meme favored in Open Society Institute circles.[19]
Or just make international copyright even weaker—to the great detriment of the property rights of creators already under attack from multiple sources. [20]
It also must be said that Big Tech has tried for years to get creators to believe that digital piracy actually helps artists and songwriters because it drives fans to shows and movie theaters. Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties. However implausible that assertion is, if there’s no touring or touring is severely cut back due to public health concerns, then both piracy and the income transfer to pirates becomes even more important to all creators.
The Pirate Party has had a close connection to the notorious criminal infringer The Pirate Bay. In fact, the Pirate Bay’s co-founder Peter Sunde ran for the EU Commission Presidency on the Pirate Party slate at the time of his arrest, conviction and imprisonment in Sweden for massive copyright infringement.[21] The Pirate Party reportedly offered to host the Pirate Bay on the servers of the Swedish Parliament.[22]
According to Wired Magazine,[23] the Pirate Bay inspired the creation of the Pirate Party in 2006—regardless of whichever came first, the two are synonymous today. The connection between piracy and the Pirate Party is abiding and sustained over a generation. Indeed the German Pirate Party’s youth operation—“Junge Piraten”—is devoted to the ongoing generational transfer of its goals.[24] Anyone who observed the Pirate Party’s tactics in the recent European Copyright Directive debate at the European Parliament should have no doubt that Ms. Reda is a dedicated opponent of copyright and an equally dedicated supporter of piracy masquerading as “sharing culture” or “progressivism.”
Plus, it must be said that Ms. Reda’s efforts to stop the Copyright Directive were as close to Google’s own lobbying effort as one is to two. This includes such extreme tactics as spamming MEPs, lobbying the children of elected officials through Twitter to try to persuade their parents to oppose the Copyright Directive (sometimes referred to as #Article13) and promoting the #saveyourinternet spamming and Twitter bot campaign along with Google and particularly YouTube.[25] Google was caught spamming Members of the European Parliament on the Copyright Directive by the Times of London in an independent investigation. According to The Times, “Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals[,] intended to amplify the extent of public support for policies that benefit Silicon Valley[.]”.[26] This may sound reminiscent of what the U.S. Congress was subjected to during SOPA.
Given Google’s éminence grise at the hearing, it is no surprise that of all the elected representatives who the Subcommittee could have invited, it is Ms. Reda who finds her way into the U.S. Senate. Reda-watchers assume she will be dining out on the platform afforded her in the Senate for years to come. Hopefully, Ms. Reda does not intend to export her European Parliament lobbying tactics against Senators in the United States.
Google Dominates the Subcommittee Witnesses
It is also striking that Google is so well-represented among the witnesses at the Subcommittee’s hearing—yet its name is never mentioned. Texans are asked to pay no attention to who is behind the curtain. A little bit of research reveals the connections.
Professor Smith’s own Carnegie Mellon biography[27] lists four separate research grants from Google. The Carnegie Mellon Privacy and Security Lab received a $1,050,000 cy pres award[28] in the controversial Google Referrer class action as well as a $350,000 cy pres award in the Google Buzz settlement.
Google is a leading member of the Computer and Communications Industry Association[29] which is a frequent critic of artist rights advocates and a reliable amicus brief for Google’s extreme business practices alongside NGOs like the Electronic Frontier Foundation, R Street and Engine Advocacy.
Daphne Keller is a former Google senior lawyer responsible for Google’s crown jewel of search and now works as “Director of Intermediary Liability” at the Stanford Center for the Internet and Society PACS.[30] The Center was itself was launched with at $2 million gift from Google.[31]
As Ms. Keller well knows, Google’s own Transparency Report[32] shows the company has received over 4 billion DMCA takedown notices for infringing material in Google search alone. This is what is meant by “intermediary liability” (or more appropriately, no liability for self-defined “intermediaries”). Is there another company in commercial history that when told it has infringed 4 billion times views the same ongoing infringement technique as a feature not a bug? Does anyone believe that Google’s search algorithm is not behaving foreseeably exactly as designed due to lack of resources, complexity of scale or any other reason? Or is Google instead distorting every possible safe harbor loophole and copyright exception to maximize its profits by maximizing the value gap? Google would no doubt argue that the reason they receive so many takedown notices is because of the scale of Google’s monopoly operation–which is like the arsonist arguing that they should be excused from punishment because they light a lot of fires. Perhaps fighting digital piracy begins at home.
Both Professor Samuelson’s Berkeley Center for Law and Technology and the Samuelson Law, Technology and Public Policy Clinic received $500,000 and $200,000 respectively from Google as part of the controversial Google cy pres awards recently called into question at the U.S. Supreme Court in the Frank v. Goes case.[33] Of course, Google is a major benefactor of the Berkeley law school. Professor Samuelson is a prime mover[34] in the American Law Institute’s controversial end run around the Congress with its nascent “Restatement of Copyright” as the Subcommittee well knows.[35]
Recent Google and Facebook Cy Pres Awards
And if Ms. Reda’s past devotion to piracy were not evidence enough, she is now associated with the Berkman Center, which itself has received sustained corporate funding from Google including $500,000 and $750,000 in two separate cy pres awards from Google in controversial class action settlements.
As the sole connection to a foreign government whose practices are evidently intended to inform the Subcommittee, Ms. Reda seems an odd choice, certainly when there is no countervailing representative of which there were many (such as MEPs Helga Truepel or Axel Voss or Commander Karen Baxter of the City of London Police).
I hope that some of this information may prove useful to you in questioning the witnesses on behalf of creators and in achieving the goals of the hearing.
[Welcome Senator Tillis to shining sunlight on the astroturf “Restatement of Copyright”, which in our view is a epitoma suprema of Silicon Valley shillery. The letter that Senator Tillis refers to is the December 3 letter his colleagues and he sent to the American Law Institute asking some questions about the proposed Restatement (which isn’t all that proposed anymore as the drafting is moving along briskly). I gather from Senator Tillis’s op ed that he hasn’t gotten a reply yet. Which must mean that the mumbletank in the Silicon Valley policy laundry hasn’t quite figured out how to reply. But here’s the question that no one seems to have asked yet: Who is paying for the Restatement of Copyright? I don’t mean which non-profit accountability blocker wrote the check, I mean who is the ultimate donor who is the source of donor directed funds?]
With millions of jobs and over a trillion dollars at stake, as lawmakers, we must ensure copyright laws continue to protect the livelihoods of our nation’s creators.
It is for this reason that we have sent a letter questioning the effort by a well-established legal organization to “restate” and reinterpret our copyright laws for the nation’s judicial system. Last time we checked, Article I of the Constitution specifically grants Congress the authority to make laws to allow for individuals in the creative industries to be fairly compensated – not law professors.
The Trichordist 
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