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Must Read: First Amicus Brief Opposing Google Books

March 28, 2009 Comments off

The first of what may be many amicus briefs opposing the Google Books settlement is in motion (amicii must request permission of the presiding judge in order to be able to file their briefs–so interested counsel take note). Professor Grimmelmann discusses it on his blog which should be read regularly by those interested in opposing the settlement.

While I doubt we would agree with Professor Grimmelmann about all creator issues invovling copyright and artists’ economic rights to their labor value, I think that we agree about this–the Google Books settlement is an unmitigated disaster for anyone concerned with creativity, fairness, orphan works or competition. (He probably wouldn’t say it quite so broadly.)

And again–songwriters, music publishers, and anyone taking the trouble to obtain a lyric reprint license and sellers of sheet music take note. Your sheet music and lyric reprint rights ARE implicated and Google WILL be competing with you if the settlement is approved.

US News & World Report: "Google May Not Be Evil, But It Sure As Hell Isn’t Interested in Free Speech"

March 24, 2009 Comments off

There’s a great piece on the US News & World Report blog by the well-respected author and journalist John Aloysius Farrell that must make Google count the days until it’s driven all newspapers out of business. The piece is remarkable because it is (A) published in a major media outlet, (B) finds a pattern of copyright infringement by Google, and (C) is critical of Google. Wow. Mr. Farrell joins a short list of articles.

In commenting on the latest collision between the Leviathan of Mountain View and the human rights of creators, Mr. Farrell notes that “…the Warner [Music] [G]roup has been reminding Google that, when it comes to music videos on its YouTube site, there is still such a thing as copyright law. This is an inconvenient fact that the dreamy ‘information on the Web shall be forever free’ folks, and the evil Silicon Valley suits who exploit them, like to forget….The artists who make the videos that lure the viewers deserve a chunk of that money.”

Almost right. The artists who make the videos don’t just deserve the money, they are entitled to that money. They have a legal right to determine the price and to be paid. They also have a right to get a straight count out of YouTube’s questionable accounting systems. Artists and copyright owners also have the right to withhold their works as they wish. These are their economic rights. As Professor Alchian observes, economic rights are human rights. Google’s commerical interests trump any concern about human rights of political activists in China, and they are certainly not interested in the human rights of creators.

Mr. Farrell correctly notes that it is “…hard to believe that Mighty Google, King of Search Engines can’t figure out a way to differentiate between the professionals, and the amateurs who lampoon and imitate the pros….It looks more like Google and Warner are in a game of chicken, each hoping that the other gets the blame for depriving YouTube fans of popular content.”

Again, almost right. I find it hard to believe that any record company thought they’d be subjected to public ridicule by Google and its amen chorus if the record company didn’t renew Google’s license. Note that this doesn’t seem to happen to any independent artist who sends a DMCA notice that Google complies with. It is well for anyone negotiating a term agreement with Google about anything to take careful note of how Google treats “partners” who don’t give them what they want. This is a good reason not to get into business with them at all. Recall that Warner Music Group was the first in on deals with YouTube when YouTube was very unpopular with the creative community. And this is how Warner are treated.

Of course, when individual artists are confronted by a company like Google that raises vast amounts of capital from the public markets to commoditize the creators’ rights and vastly outspend them on litigation, there are precious few ways for creators to resist, particularly if their government ignores the attack.

As readers of The Register will know, Mr. Farrell and I differ on his support for Google Book Search, but he correctly notes that whatever the beneficial value of Google’s scanning, “…Google had to be dragged, at legal gunpoint, into the deal with the publishing industry that protects authors.” (A lot of people don’t think it does protect authors, and actually is an example of what happens when a public company goes after creators in litigation.)

“If Google would admit that it’s just another rapacious capitalist entity, like Warner, fine. [Those of us who remember Mo Ostin and the Warner Bros. Records pro-artist culture have a hard time with that statement.] But Google claims to be something better. And it’s the way it cloaks its own commercial interest in Free Speech warbling about the Web that I find insincere, and irritating.”

It’s called Newspeak. You remember–War is Peace, Freedom is Slavery, Ignorance is Strength.

And Google is not evil.

Sony Reaches Deal to Share in Google’s E-Book Library

March 23, 2009 Comments off

“It was a bright cold day in April, and the clocks were striking thirteen.”

In case you were wondering what the future holds for those who don’t oppose the Google Books class action settlement, there is a helpful story in the New York Times announcing a deal that Google has already made with Sony to cover books in the public domain.

With the usual laser beam of critical focus that the mass media brings to its business coverage of Google, the NYT overlooked a couple questions it might have asked in the piece (aptly entitled “Sony Reaches Deal to Share in Google’s E-Book Library“. Because it is Google’s library, make no mistake.)

First, do you really think that Google and Sony would make a deal that only covered public domain material when the deadline on the fairness hearing on the Google Books settlement is coming up on May 4 with the fairness hearing on June 11?

Doesn’t it seem more likely that Google and Sony would make a deal that would cover public domain materials now, and then everything else once the settlement is in place? Do the two companies intend to start all over again with a completely different negotiation for the in-copyright works? Maybe. But we don’t seem to know that from the newspaper of record.

So in case you weren’t planning on licensing your lyrics or sheet music to Sony for their reader, you might be interested in that fact, and it might have been nice for the NYT to have brought that up in their reportage.

Also, how does this license of public domain books actually work? Is Sony paying for the digitization of the works? Why couldn’t Sony have digitized the work themselves?

It’s only 500,000 works. That’s a significant number of works but hardly daunting for a company like Sony. Was there some reason why Sony couldn’t get the works from a library and do the digitizing themselves? What could possibly have been blocking a company the size of Sony from doing the same thing that Google did?

Will Sony keep paying Google for using the digitized works or is it a one-time payment? Who gets the money? Does it go to the “Google Books Registry” or does Google keep it? Does Google get a fee for each player, or what?

According to the NYT, the companies didn’t release the financial terms of the deal.

And when it comes to Google, that’s where it stops. That’s where the newspaper of record stops its investigation into what is clearly the most significant antitrust event to hit the creative community.

This so typically Orwellian for the Leviathan of Mountain View. Make it sound like you’re promoting competition with Amazon when you’re busily locking up the rights to world literature, sheet music, lyrics, the works.

As Google’s Sergey Brin told the Wall Street Journal (who at least asked the right questions):

“WSJ: Is establishing a registry for rights holders a model that Google thinks it can replicate in other areas of digital media, like video?

Brin: Very much so. In fact, with video and our fingerprinting technology, we are essentially building the [opt-in] registry. We have a number of big media companies that send us their raw video files and we fingerprint that and we can attribute those videos to them.”

The longer Google can keep creators in the dark, the stronger they get.

Like the man said, “Ignorance is strength.”

Oro Ex Specialis

March 23, 2009 1 comment

PC World reports that Google has filed documents in opposition to a new copyright law in New Zealand in which “Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.”

This is great news. Google obviously is keeping meticulous records of all of its DMCA notices. This is all the more reason in our new national mood of transparency that Google can disclose or even post all of the DMCA notices.

Otherwise Google is committing the fallacy of oro ex specialis, or arguing from secret information. You know, kind of like the tooth fairy.

But of course PC World didn’t flag this, must have been a busy day on the copyright news desk.

RIP Officer Hege and Sergeants Dunakin, Romans and Sakai

March 22, 2009 Comments off

“Never has our badge of honor meant so much or hurt so much….It is unavoidable to witness inside our thoughts anything but the smiles, the good and the affections of each of the officers who took our places…In the 160 year history of OPD there has never been such a singular incidence of devastation to our ranks.”

There’s a nice tribute to these officers on the Oakland Police Officers Association home page.

Special Olympics and the R-Word

March 20, 2009 Comments off

r-word.org

I’m sure there must have been charity records before the Very Special Christmas series on A&M Records, but somehow I can’t remember any. In addition to being two of the greatest record men, Herb Alpert and Jerry Moss are two of the kindest and most generous people in our business, actually two great humanitarians of the world.

The Very Special Christmas series seemed like a crazy idea in the beginning, but boy was it a good one. A great one. Back in the days when we had multiplatinum records, the series raised millions for the Special Olympics.

Special Olympics could use a little help with their R-word campaign right about now, so I would appreciate it if you could click on the link and see if there’s something you can do to help out.

They’re nice folks.

The Irish Drink the Same Old Whine

March 18, 2009 Comments off

In light of the same old whine from Irish ISPs who drank a little too much Lessig in the pub last night, you may be interested in a speech at Canadian Music Week by Serge Sasseville of Quebecor, a large Canadian ISP:

“A Canadian telecommunications company does not answer only to its directors, shareholders and creditors. As a stakeholder, a good corporate citizen, it cannot remain insensitive to the piracy problems affecting the survival of Canadian content producers and rights holders. ….[O]ne thing is for sure: the confrontation between the ISPs and the content producers and rights holders must stop. They have to build together a strong business model that will protect and help develop the [production of] Canadian [culture].”

I guess Stephen Dedalus was right, Ireland really is the old sow that eats her farrow.

Why music publishers (and their licensees) should care about the Google Books Settlement

March 5, 2009 Comments off

I’ve been trying to beat the drum on the importance of the Google Books settlement for a while (see chez Reg “Is Google’s Culture Grab Unstoppable?”).

There are quite a few people objecting to the settlement, but no music publishers seem to understand that they are involved. The common reaction is that there’s no way that music, such as sheet music, could be involved because the publishers never gave a license.

Now come on. This is GOOGLE we are talking about here. They don’t think in terms of licenses, they think in terms of bully boy legal muscle and what they can jam down creators’ throats.

So here’s how I think it works. Libraries that (A) Google either effectively dominates or owns (like Stanford) or (B) are state-owned institutions that think they are protected by state soveriegn immunity statutes so they can allow private commercial copying of their in-copyright holdings (that they likely KNOW are acts of copyright infringement).

These libraries give Google permission to copy their holdings (and likely get some kind of indemnity back from Google and are, in any event, getting a release in the Google Books case).

This is the “license” that allows the titles to get into Google Books. So if you are a songwriter, composer or music publisher and your sheet music is published in a book, there’s a good chance that it’s in one of these behemouth libraries and there’s an almost certain chance that if it is in one of the Google libraries, it is in Google Print.

And if it is in Google Print it is almost equally certain that no one has told you about it or bothered trying to find you.

An Elaborate Scheme

Brewster Kahle (no friend of copyright in my view) summarizes why the Google Books settlement matters rather succinctly as it applies to orphan works, but the same argument applies to any publisher or author not before the court. We may not agree about much, but we agree about this.

Remember–this is not just a case brought by the book publishers and authors–it is that case but also includes a class action that was consolidated into the main case. The class action enlarges the plaintiff class and makes the settlement binding on essentially ALL authors and publishers unless they opt out of the class. Mr. Kahle’s view:

“After digesting the proposed Google Book Settlement, it becomes clear that the dizzyingly complex agreement is, in essence, an elaborate scheme for the exploitation of orphan works. The class action mechanism allows the Authors Guild (8,500 members) and the AAP (260 members) to extrapolate themselves to include millions of unfindable and unknowable rightsholders to orphan works. It is to this end–the certification of a class that includes the orphans–that the parties need the blessing of the court.”

Including Music Publishers in the Publisher Class

Consolidating the class action also appears to allow the Authors Guild and the AAP to extrapolate themselves to include many, and maybe more millions, of findable and knowable copyright owners, presumably the copyright owners of the types of works listed in the settlement documents and class notices.

So who is a publisher for purposes of the settlement? “The Publisher Sub-Class consists of all members of the Class that are Book publishing companies or are periodical (e.g., newspapers, magazines, journals) publishing companies that own a U.S. copyright interest in an
Insert or have published a Book, and their respective successors and assigns.”

What’s a “Book”?

“For purposes of the Settlement, a “Book” is a written or printed work on sheets of paper bound together in hard copy form that, on or before January 5, 2009:

• Was published or distributed to the public or made available for public access under the
authorization of the work’s U.S. copyright owner(s); and

• Was registered with the U.S. Copyright Office, UNLESS the work is not a United States work
under the U.S. Copyright Act, in which case such registration is not required; and

• Is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement.”

What do those types of works include? We are told that the definition of “books” in the settlement does not include sheet music. But does it?

“Books” do not include…sheet music…. But “sheet music” (in par. 1.16 of the Settlement Agreement) means “…(iii) written or printed works in which more than thirty-five percent (35%) of the pages contain more than fifty percent (50%) music notation and lyrics interspersed, if any (for purpose of this calculation, “music notation” means notes on a staff or tablature)”.

So ask yourself if that description fits any book of sheet music, folio or tab that you’ve published that’s still in copyright. It seems like that definition is rather more flexible than it should be, and is certainly not a blanket prohibition on “sheet music”.

But wait…what about “Inserts”? “Inserts” are also part of the settlement and are served up in search results. “’Inserts’ include any text and other material, such as…song lyrics…[or] sheet music…if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book and, if U.S. works, registered with the U.S. Copyright Office.”

So while some sheet music may be excluded from the definition of “Books,” sheet music and lyrics are included in the definition of “Inserts” and Google will have the right to serve these up if you do not opt out or if the settlement agreement survives the fairness hearing on June 17.

http://www.googlebooksettlement.com/r/view_settlement_agreement

As Brewster Kahle says (regarding orphan works, but equally applicable to the effects of the settlement overall):

“I, personally, am amazed at this creative use of class action law. The three parties have managed to skirt copyright law, bypass legislative efforts, and feather their own nests–all through the clever use of law intended to remedy harms.”

I’m pretty amazed, too, but not surprised because this kind of back door, underhanded move is who these people are.

But if you’re like most music publishers–you never were consulted or had any idea that you were being dragged into this mess. There is still time to react, but barely. You can object at the fairness hearing, but you will need to move quickly.

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