Category: Intellectual Property

Let’s Be Sure To Kill the Songwriters

I have said a few times on this blog that contemporary politics in the United States is increasingly reminiscent of the turbulent 19th century.  We only have 2.4 centuries of existence as a nation, and it took half of that time just to begin to fulfill the promise of equality—principally by advancing of the rights of labor relative to the power of capital.  Now, sadly, we seem to be moving in the opposite direction; and a new bill introduced in the House reveals that big capital—shiny digital-age capital—is not quite done eviscerating the rights of songwriters and musical artists.

As long as U.S. public policy is in a general state of chaos, we might as well write a bill that would allow corporations the size of Google and Amazon to steal from songwriters with impunity.  That’s not how Rep. Jim Sensenbrenner’s (R-WI) “Transparency in Music Licensing Ownership Act” is being presented by its proponents, of course, but that’s basically what it is.  And sources tell me there are murmurs within the Judiciary Committee about applying the same rationale (to use the word kindly) to all copyrightable works in addition to music.

A Bit of Context

As many readers know, songwriter David Lowery (of Cracker and Camper Van Beethoven) led a class-action suit against Spotify for publicly performing unlicensed songs.  The streaming company claimed it had made every effort to find the correct parties to pay license fees, but could not locate them.  Normal behavior would suggest that you don’t use the work until you get the license; but asking permission is just not the Silicon Valley way. Hence the lawsuit, which was settled this past May with Spotify creating a $43.4 million fund to compensate the publishers and songwriters whose works were used without license.

Then, as reported in detail by attorney Chris Castle, major music-streaming services—Google, Amazon, Pandora, and Spotify—have been exploiting a provision in the copyright act that was originally designed for single-use, good-faith actors, but which is now a giant loophole for predatory corporations with big computers.  Section 115 states that if the USCO record does not contain address information where a rights holder can be served, a prospective user of a work may instead file a Notice of Intent with the Copyright Office.

The big data companies have been abusing this provision by filing millions of NOIs against songs whose authors can very much be found, if one actually looks.  As Lowery notes in a recent post on The Trichordist, Google allegedly could not find Brian Wilson and so filed an NOI for an obscure ditty called “Surfer Girl.” Think of this NOI maneuver as a temporary liability shield for mass infringement—not an outright exemption so much as an elaborate stall tactic—a hack—that can only be achieved by companies with big computing power.  Meanwhile, creating an outright safe harbor for mass, corporate-scale infringement requires legislative action, and that’s where Rep. Sensenbrenner’s bill enters the story.

HR 3350 is Not What It Seems

On the surface, Sensenbrenner’s bill looks like a modernization initiative. Ostensibly, the proposal would amend the copyright act by mandating that a new database for musical works and sound recordings be created and maintained by the Register of Copyrights.  The bill is being sold as a means to more efficiently get artists paid by updating and fixing the public records.  And while nobody can claim the current, searchable database of the USCO is up to par, this is a) not the reason Google can’t find Brian Wilson; and b) not an issue that will be ameliorated by this half-baked legislation.  Most insidiously, this bill threatens rights holders’ ability to enforce their copyrights at all (more on that below).

Copyright Office modernization is a much-desired, highly-politicized, and underfunded goal that has been in the proverbial works for years.  As such, it seems hardly efficient to introduce legislation, which implies that there is now some urgency to create this database for two categories of works.  Suddenly, we need to develop a music database (which happens to be redundant to those maintained in the private sector) outside the context of any broader agreement about USCO modernization and the appropriations necessary to achieve that outcome.

This suggests that the urgency of Sensenbrenner’s bill is driven by the combined $1.5 trillion worth of corporate entities represented by a lobbying group called the MIC Coalition. Comprising the above-mentioned music streaming companies, terrestrial radio networks, consumer electronics companies, and hotel and retail giants, what these industries like about HR 3350 is that it directly weakens a rights holders’ ability to enforce his copyrights, period.

Preempting Liability

While many critics complain about statutory damages, they are fundamental to any rights holder’s ability to enforce a claim of copyright infringement.  Proving that an infringement has occurred is often quite straightforward, while proving exactly how much harm a specific infringement has done to the owner is far more subjective. For instance, some harm may be qualitative and hard to value in monetary terms.  Thus, the federally-mandated penalties for infringement act 1) as a deterrent; and 2) as an incentive to settle the majority of relatively simple cases in which attorneys for both parties typically know what the outcome of an otherwise costly trial would be.

Registration with the USCO is already required in order for a rights holder to be eligible for statutory damages in a prospective litigation.  But the provision in Sensenbrenner’s bill would mandate that rights holders register via this new database or forfeit their eligibility for statutory damages.  So, among the unanswered questions this bill begs is what it would cost rights holders to newly register and/or maintain their records in this as-yet-undeveloped database.  For instance, would an out-of-date phone number automatically nullify a rights holder’s eligibility for statutory damages in a litigation? And what would it cost a rights holder like a photographer, with thousands of copyrights, to change every record — depending on how the database is designed?

This NPR story by Andrew Flanagan calls HR 3350 “opaque” and quotes attorney Lisa Alter as saying, “It’s basically a prophylactic for copyright infringement.”  And that’s exactly what it looks like to rights advocates—a preemptive measure to evade liability for mass infringement of works, disguised as a modernization mandate. It even has the word transparency in its name to help with that confusion.

What About My Coffee House?

In a much older post, I referenced my local coffee house as a place that hosts an open mic night and, therefore, pays the three major PROs — ASCAP, BMI, & SESAC — and displays a sign at the entrance telling musicians to “play whatever they want.”  While the proprietor is focused on ordering supplies, managing his employees, brewing coffee, baking killer muffins, and catering to his customers, I imagine paying the annual PRO fees is about as much time as he will ever want to devote to thinking about music licensing.

As such, it’s hard to imagine how this small venue owner, and millions just like him, would benefit from this proposal despite the claims by mega-corporation proponents to the contrary.  At best, these databases are useful for prospective users of individual works, but the small proprietor of a bar, restaurant, or store has little to no use for that level of detail. He just wants music in his establishment.

While the language in this bill creates a brand new safe harbor shield for businesses like Pandora, Google, and Amazon—and perhaps even a major hotel chain—it’s likely to be somewhere between useless to harmful to my local coffee house owner.  Sensenbrenner is considered by industry professionals to be an enemy of the PROs, and it’s unclear the extent to which this bill could wind up harming those organizations. If this were to happen, though, that’s about as helpful to a small business owner as saying, “We got rid of the power company, so all you have to do now is buy every kilowatt from a different supplier.”

All Creators Should Reject this Bill

To quote Chris Castle, “It’s rare that the Congress can accomplish the hat trick of an interference with private contracts, an unconstitutional taking and an international trade treaty violation all in one bill.”  But he asserts that HR 3350 would achieve all three of these feats in a single act.  I proposed in a recent post that Napster gave us Donald Trump, which was just a provocative way of saying that I believe we accelerated the devaluation of labor and labor rights relative to capital when we presumed to reject the copyrights of musical artists and literally gave the artists’ money to tech VCs and criminal organizations.  Apparently, that narrative is still being written. Songwriters and musical artists are still the proverbial canaries in the coal mine; and it’s unclear if anyone will notice if they stop singing.

How Napster Gave Us Donald Trump

I finally had a chance to read Move Fast and Break Things by Jonathan Taplin.  A former music manager and film producer from the period I would describe as America’s true golden age, Taplin is now director emeritus of the Annenberg Innovation Lab at the University of Southern California. The book, which debuted a few months ago, explains how the internet oligopoly has steadily undermined democratic principles—and how we’ve helped them do it.  Taplin condenses a lot of information into a highly-accessible book that I would recommend for anyone first approaching these issues, or as a well-articulated reference for anyone already engaged.

While reading Taplin, the thought occured to me that I bet the left-leaning advocates of media piracy, along with many of the anti-copyright voices in academia, and the “digital rights” groups who scorn enforcement of copyright online would hate to know how much they helped elect a guy like Donald Trump as president.  But that’s kinda what happened.

When young, digital natives first bought into the idea that music piracy was justified because they were “sticking it to the Man,” they could not see that they were lighting the first match on a long fuse that would blow their own labor rights all to hell by the time they entered the workforce.  By consuming all the free candy, and subscribing to the progressive-sounding PR of Silicon Valley corporatists, millions of Americans unwittingly surrendered in the first battle of a war they didn’t even know was being waged against the basic rules of democracy.  Now that war is becoming more apparent. As Taplin describes in the book, it is a war being prosecuted by ultra-libertarian, monopolists like technology VC Peter Thiel—a member of Donald Trump’s inner circle—who has publicly stated his disdain for us “unthinking demos,” as he likes to put it.

Democracy is of course anathema to the warped ideology of Silicon Valley’s most powerful corporate leaders; it’s messy and inefficient, imposing rules (like copyright) that stand in the way of boy geniuses who’ve overindulged at the gold-plated bong of libertarianism while swooning to the ravings of Ayn Rand. These are men who want more than the unprecedented wealth they’ve already acquired—men who sincerely believe that their ability to reshape society with technology has earned them the right to be the new landlords of the nation. And we plebs have no business trying to stop them.  Notice I keep saying men. Here’s Taplin’s citation of Thiel’s allusion to American women’s suffrage, as written on the CATO Institute website in 2009:

“Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” [Emphasis added]

That’s the kind of thinking that permissionless innovation, beginning with piracy and the erosion of copyrights, has helped finance into extraordinary political power today. So, let’s not mince words.  If copyright infringement was in fact the first battle in a larger technological war against individual rights, led by a group of egotistical, male capitalists, then I’m afraid every woman who ever justified piracy has—like Ayn Rand’s Dagny Taggart in Atlas Shrugged—demurely told these assholes she’d like them to be in charge.

The extraordinary power of the tech oligopoly owes much to both political parties’ unwillingness to wield anti-trust law, and to a business and technology press too busy star-fucking to notice that journalists’ heads have been on the chopping block for years.  But perhaps the most insidious element in this narrative is the role played by “digital rights” organizations like the Electronic Frontier Foundation, PublicKnowledge, and Fight for the Future, along with their satellite and sister organizations around the world.  Adopting the tone of left-leaning, anti-corporate activists, the people in these organizations would probably hate to think that their advocacy dovetailed quite nicely with the election of a guy like Donald Trump. But it has.

Whether these institutions are co-conspirators or just useful idiots for Silicon Valley’s wealthy elite, their absolute rejection of copyright—or of any enforceable, democratic rules—in cyberspace has largely served to advance the interests of the most powerful aristocrats the modern world has ever known. The paradox the folks in these organizations refuse to recognize—indeed, which they cannot afford to recognize—is that their micro-defenses of the First Amendment on the internet have largely empowerd a tiny group of men whose stated ambition is to disrupt the Republic as an incovenient, inefficient, and outdated model.  And since no Republic means no First Amendment, it’s hard to fathom what exactly these activists think they’re achieving.

The fact that mass copyright infringement is still viewed as rebellion against corporatists, rather than playing into the hands of oligarchs, probably has a lot to do with the word property.  This is a particularly loaded word in America. Liberty, as it was codified into law at the beginning of the nation, meant liberty for property-owning, white men, including white men who owned black men and women as property. From these morally corrupt beginnings, the progress of demanding that civil liberties apply to all citizens has generally been one of wresting control from the propertied and privileged classes, which is why labor rights are so deeply intertwined with civil rights overall.

While copyright is a kind of property right, it is also analogous to a labor right whereby the right of the worker to negotiate terms is embodied in the protection of the work after completion.  With the appearance of Napster in 1999, the subsequent growth in piracy, and all the ideological bullshit that growth spawned, copyright was incorrectly subsumed into the broader narrative of the people reclaiming territory that was unfairly occupied by the propertied classes.

Though it would not be accurate to say that the major, corporate rights holders are beyond reproach, the general failure to recognize copyright as an individual right was a huge mistake—one that accelerated and financed the agendas of elitists, who view a wide range of individual rights as barriers to their own wealth and power. The destruction of copyright in the service of Silicon Valley’s interests may prove to be the cracked keystone that ultimately allows the whole democratic structure to collapse.  Unless of course we find the political will to tell these guys to get stuffed.

In this narrative, Trump himself, like the “digital rights” activists, is just another useful idiot. His innate disdain for the pesky rules (and even common courtesies) of democracy, coupled with his allegiance to the wealthy elite, make him an effective tool for the likes of much smarter men like Thiel, Larry Page, Sergey Brin, Marc Andreesen, Mark Zuckerberg, and Jeff Bezos.

If we think of the unorthodox presidency of Trump as one that defies traditional, ideological labels, what it really represents is a vote of no confidence in American democracy. And that’s what makes it so dangerous. As noted in a recent post, the World Values Survey concluded that only 30% of Americans born after 1980 believe that it’s important to live in a democratically governed society at all. Presumably, then, the remaining 70% comprises that cacophony of views we see on social media—including many that would be opposed to Trump, but are equally anti-democratic in other ways.  To be clear, I would not make a case that Hillary Clinton, or any other candidate who has yet emerged, reveals the kind of Teddy Roosevelt moxie needed to restore balance between public and corporate interests; but electing such a figure would actually require the public to restore some faith in the system itself.

I’ve speculated in past posts that the anti-establishment trend is creating an ideological vacuum, which is already being filled by tech corporations and their owners’ libertarian agendas. This may lead to a state of technological feudalism, when all labor rights will be obliterated, taking the soul of other civil liberties with them.  The right of free speech, for instance, would become mere illusion because no citizen’s voice would actually matter in that kind of society. Speech would thoroughly devolve to noise—as effective as playing with a fidget spinner—we make on tech devices just to amuse ourselves, and to tell the computers how we can serve them rather than the other way around.

There’s a reason why one of the first steps toward authoritarianism is to silence the artists. To acheive this in a democratic society, it must be done subtly by degrees, by eroding their rights and economic power.  So, wouldn’t it be a cruel joke on ourselves if the anti-democratic, dystopian end game really did begin with everybody stealing music?

Castle: New Music Licensing Bill is Crony Capitalism

Not only musicians, but authors of all works should be deeply concerned about Rep. Sensenbrenner’s proposed “Transparency in Music Licensing and Ownership Act,” says attorney and blogger Chris Castle.  Describing the proposed legislation as a new “safe harbor” for users of creative works, the new law would effectively abolish liability for infringements by large, corporate-owned business sectors like the American Hotel and Lodging Association, along with usual suspects in the internet industry.

“…if you haven’t undertaken the formality of registering in this new database, then the user has no exposure to statutory damages and will not have to pay the victorious songwriter or artists attorneys’ fees.  And this new safe harbor applies apparently even if that songwriter or artist has filed a copyright registration under existing law,” Castle writes.

See full article here.