Archive for January, 2010

Canadian, German and New Zealand Authors Oppose Google Book Settlement: The Smartest Guys in the Room Can’t Handle the Truth–AGAIN

January 31, 2010 Comments off

In the latest round of Google’s “make me” litigation strategy, the biggest bully in the schoolyard is confronted by yet another group of angry authors opposed to Google’s wholesale landgrab of the works of civilization.

The objection to the Google Books Settlement filed on 1/28 by Canadian authors (although not yet in the docket as of this writing) clearly lays out the high level legal reasons why the Google Books settlement is unlawful on its face. (The Canadian objection is consistent with the DOJ’s conclusion that “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply,” (DOJ at 2) as well as the well-reasoned testimony of U.S. Register of Copyright Marybeth Peters who concluded that the Google Books settlement’s far-reaching authorization to the Registry and ultimately Google to exploit out-of-print works without prior consent of the rightsholders, alters the traditional understanding of copyright law that allows the owner to exclude others from using a copyrighted work absent authorization of the copyright

Not to take anything away from the high quality legal work done by counsel to the Canadian writers, for which we must exclaim a hearty “Well done!”–but for anyone with even a passing familiarity with international copyright law and a slightly greater understanding of the orphan works laws of Canada and the civil law traditions of Quebec, the guts of the Canadian argument is the kind of thing one could bang out in outline over one’s morning coffee with minor revisions. Which is what makes the entire Google Books debacle even more insulting to Canadian and other ex-US authors–however bad its advice was or is, Google must have clearly known exactly what it was doing, knew what it was doing violated the law, and everyone involved starting with Lessig’s ridiculous presentation at the New York Public Library (of all places) locked arms and danced down the garden path together.

As the Canadian authors so correctly point out: “As a state party to NAFTA, the U.S. is required to provide national treatment to foreign investors, and to comply with substantive copyright policy provisions of the Berne Convention such as refraining from the imposition of formalities. The terms of the Amended Settlement…would rob Canadian class members of these protections. Court approval of the Amended Settlement would violate American treaty obligations to protect Canadian copyright holders. If the U.S. does not meet these obligations, remedies will be available to both the Canadian government and Canadian authors and publishers under the enforcement provisions of NAFTA.”

And NAFTA remedies are just the appetizer. There are plenty of hearty facts available for the main course. It is well to note that there is nothing arcane or unusual about treaty obligations–they are clear as day. These are not arguments, they are facts.

And now–the very writers Google loves to rip off have to spend legal fees to oppose them in one of the more complex class actions of all time. The International Covenant on Economic, Social and Cultural Rights clearly establishes these rights of authors, as do many other international agreements including article 27, paragraph 2, of the Universal Declaration of Human Rights: “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”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948; article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952. The signatory States also have undertaken the affirmative obligation to protect these rights of authors. Those protections include adequate legislation and regulations, as well as making effective administrative, judicial or other appropriate remedies available to authors within each jurisdiction–at a reasonable price.

Telling an author that they have the right to negotiate with Google, Inc. is really just a joke. Bring your kittens and sunshine.

This financial disparity between the public company bully raising millions in litigation, lobbying and political funds from the public markets and the private individual creator is not lost on Canadian authors–or German, French or other authors being haled into court in the United States in one of the strangest incidents of judicial imperialism of all time.

The Canadian author group makes many good points about the international law implications of Canadian orphan works laws and “that Canada, a bilingual and bi-juridical country, has a cultural heritage and legal tradition that is dissimilar to those of the United States, the United Kingdom or Australia.” Aside from the fact that Google Books violates decades if not centuries of every international treaty known to man or beast from the Berne Convention to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Remember that the original settlement covered every book ever published virtually anywhere in the world. This resulted in convincing objections from three countries (including the United States). Google and the supposed class representatives (an assertion that is becoming increasingly dubious) came up with an amended settlement that covers only titles that have been registered with the U.S. Copyright Office or had a “place of publication” in the UK, Canada or Australia. The spin is that somehow these changes narrowed the number of international rights holders harmed by the settlement.

But remember–this is Google we’re talking about. So what you always know about Google is that if you can’t smell it, it’s because you haven’t looked hard enough for it yet. The BS is always–always–there. These people are incapable of straight dealing. After all, as one VIP has admonished us–don’t be moral.

The registration and “place of publication” requirements do absolutely nothing to fix the international problems of the agreement. For example, if a work is published in a country ex-the UK, Canada, Australia and US but is also published in one of the UK, Canada or Australia it’s still subject to the clutches of Google sucked in through the US court proceeding–even if the author or publisher has no other connection to the U.S.

Google would have the Court enforce a rule that the relevant consideration in enforcing copyright treaties is whether the work has been published in an arbitrary group of countries or if the work was ever registered with the U.S. Copyright Office.

This may be the law in the Temporary Autonomous Zone known as the Googleplex, but why do we have international treaties? Why bother? As a group of German and New Zealand authors argued in their brief objecting to the amended settlement:

“Why, for example, should a book written in Nigeria that has no connection to the U.S. be included in the [amended settlement agreement] simply because it had a “place of publication” in the U.K.? The parties purport to have included books published in the Chosen Countries because those countries share a “common legal heritage and similar book industry practices” with the U.S….But then why did the parties exclude New Zealand and the Republic of Ireland from this list? More importantly, what possible bearing does the “common legal heritage” of the Chosen Countries, or their similar “book industry practices” have on the connection between the
work and the U.S. – especially if that work was created in (or its rightsholders are from) a country with a very different legal heritage? The parties provide no answers to these vexing questions. Instead, it appears that they inserted the “Chosen Countries” requirement into the ASA to create the illusion of a limited settlement confined to a handful of English-speaking countries – when in fact the ASA continues to sweep in books from diverse countries all over the world.”

In other words, to paraphrase LTC Bill Kilgore–Google loves the smell of BS in the morning.

But what is not being said by any of the objectors is this: If the Google Books settlement is approved, no international copyright treaty (including the pending Anticounterfeiting Trade Agreements) will have any reliable provenance. It will be the law according to Google that will prevail.

And that will make John D. Rockefeller’s Southern Improvement Company a pale shadow on the dustheap of history.

Welcome to The Man 2.0.

See also:

Artist Rights are Human Rights;

Google Book Search is a Disaster;

Google Book Search: How bad is the metadata?;

The Importance of Registries;

Book Review: Google and the Myth of Universal Knowledge;

For Whom Doth the Bell Toll?: Google Books and the Heidelberg Appeal;

Conflict Search

The Man 2.0 in the Gray Flannel Suit; and

You can take Google out of China, but can you take China out of Google?

Compare the Canadian Writers Against Google position to that of U.S. Register of Copyright Marybeth Peters:
Copyright Office Position on the Proposed Google Book Settlement

20 Questions for New Artists: Insurance/Legal Names/DOB and Nationality

January 30, 2010 Comments off

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to before February 15. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.


Many bands overlook the importance of insurance, often until it is too late. Even if you don’t overlook it, many artists don’t fully understand why their coverage may be lacking. It is a very good idea for the band to meet with an insurance agent experienced in music industry insurance and get a report from that agent about the coverage the band has (if any) compared to what the agent recommends. In the early days, the band may not have sufficient monies to both get insurance and set up limited liability entities. We always recommend insurance in this case. At a minimum, the band should have commercial insurance on your van and sufficient coverage to protect against loss or damage to the band’s musical instruments. If feasible, the band should also seek general entertainer liability insurance, which is an umbrella policy that covers artists above and beyond the typical automobile insurance and other common coverages. (Tip: Watch out for exclusions for thrown objects.)

Legal Names of Members

Each member should provide the managing member with the member’s full legal name. This will be necessary for contracts, registration of copyrights, etc. It is a good idea to have a list of each member’s cell phone and email so you can give that to anyone who needs to reach the band, particularly on the road or in case of emergencies. If there are any sidemembers (i.e., “hired hands”), list them as well. This type of information can also help the band’s accountant spot red flags like the employee versus independent contractor issues.

Date of Birth and Nationality

It is important to know early on if any members are not of the age of majority so that if someone is under age, you will be prepared for any issues in your state relating to age of consent (usually for contracts) and employment law (performing in clubs that serve alcohol, for example). If the band tours out of state, you will need to consider these issues. Often this involves having a parent or guardian available to sign off on any written agreements. Many states have court procedures (particularly California) that can allow minors to have special rights to do business or make contracts, such as “emancipated minor” laws or “judicial ratification” of contracts. Do not assume that these laws apply to minors in your band without talking to an experienced labor lawyer familiar with your state (and any other states or countries you may be touring in). It’s also handy to have each member’s date of birth available for any copyright registration applications you file (such as Form PA for musical compositions) because the U.S. Copyright Office often requires applicants to include the year of birth.

See also: ISRCs/Unions/Side Projects

See Also: Pre-Existing Contracts and Aggregators

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

UK MP Ed Vaizey emphasizes arts education

January 29, 2010 Comments off

An excellent speech by UK MP Ed Vaizey

“We remember the sheer joy a good cultural education can bring. Learning how to create and enjoy art for art’s sake, if you will. I believe this is a vital part of growing into a happy, functional citizen in adult life. In a world where we’re going to have to increasingly put a financial price on things in the year ahead, a society which truly values people who are creative and appreciate creativity will be a better place to be.”

Google Books: Still no kittens, still no sunshine at the Kinderplex

January 29, 2010 Comments off

Another filing deadline in the Google Books debacle and the limp effort to salvage a deal out of some of the worst advice on record stumbles again. By way of background, the American Library Association lobby group issued a paper based in part on the work of other lobbyists.

Of particular interest is a handy chart of the objector/supporter filings (as of the filing deadline):

Class member objectors: 377

Class member supporters: 8

Those numbers say it all.

See also: Artist Rights Are Human Rights

See also: Sergey Brin, Monopsonist Book Enthusiast

See also: Google Books: How bad is the metadata? Let me count the ways….

See also: Google Fouls Up Again: Google Book Search is a Disaster for Scholars AND Copyright Owners

See also: Lessig’s bad advice redux: FT: “[Google Books] is cultural rape.”

See also: And that makes three: The United States opposes Google Books

20 Questions for New Artists: ISRCs/Unions/Side Projects

January 29, 2010 Comments off


 “ISRC” stands for International Standard Recording Code.  An ISRC facilitates the exploitation of certain recording rights and can be integrated into any form of digital medium.  However, the ISRC is not required by law and does not grant any rights in sound recordings.   A sound recording copyright owner can apply for their own Registrant Code that will allow them to generate their own ISRC at the US ISRC Agency (  There are also ISRC Managers who are permitted to issue Registrant Codes as listed on the US ISRC Agency website ( ).  Information about commercial data exchanges among online retailers in the DDEX standard (which utilizes the ISRC in some instances) is available at   Some digital retailers have required ISRCs and some CD duplicators have also required ISRCs.  We advise artists to obtain their own ISRC, but you should inform yourself and decide if it is right for you.


The two principal music industry unions are the American Federation of Musicians (“AFM”) for musicians and the American Federation of Television and Recording Artists (“AFTRA”) for vocalists. Any artist who has recorded a major label album has likely already joined one or both unions. Knowing whether a musician is a union member is important because union membership carries with it various restrictions such as a minimum fee to perform at recording sessions (i.e., union scale), as well as payment of royalties such as the Music Performance Trust Fund and the Special Payments Fund. If any band members play or sing on union sessions with any great frequency, you probably are or should be members of one or both unions. AFTRA in particular has very good health insurance available for near-free if the AFTRA member does over a certain threshold of work through the union (currently approximately $40,000 per year). AFTRA has also developed an “indie” membership. It is also important to know whether any “side artists” who have played on the band’s recording are members of a union and were paid the appropriate rates. (See also Interview with Randy Himes of AFTRA)

Side Projects

All major label deals and many independent record deals require the exclusive services of their recording artists. You should know what other recording projects, if any, the individual band members have committed to and if there are any restrictions. This issue may also come up when a musician signs an artist management contract or a merchandising deal.

See Also: Pre-Existing Contracts and Aggregators

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

The Geist in the Machine

January 26, 2010 Comments off

Every now and then you run across some bizarre information, something that is inexplicable on its own terms and clearly must require yet more information in order to be understood. The piece of information that makes you ask what possible explanation can there be for the particular set of facts.

So it is with Lawbytes, Inc. Lawbytes, Inc. is an Ontario Corporation Number 1329176 with a registered address in what appears to be a nice suburban area of Ottawa that is a stone’s throw from the University of Ottawa.

The “Administrator”, President and Secretary of Lawbytes, Inc. are all the same man: Michael Allen Geist. Now we “Hollywood” types are used to seeing this kind of pattern in a corporate registration for what is called a “loan-out” corporation, meaning a corporation that exists solely for the purpose of providing (or “lending”) the services of an individual. These Hollywood corporations are essentially the alter ego of the person whose services are loaned, usually a rock star. But as far as the tax man is concerned, income to one is essentially—although at least in the US, not quite—the same as income to the other.

And when you see a corporation with its offices in a residential neighborhood and no other connection comes up in an Internet search except the payment connection—it’s almost always the alter ego, in this case, the avatar, the meme of Michael Geist. For my snout—trained in the ways of “Hollywood” (kind of like “The Man from Hollywood” as Geist likes to refer to U.S. Representative Howard Berman), the connection—and purpose–is obvious.

According to a recent story in the Toronto Globe and Mail, there are rules of Treasury Board of Canada regarding payments made by the government to an individual without competitive bidding or what we Yanks would call a public “request for proposal.” This means that the work for which the person is hired has to be put out for bid in a public process unless the circumstances are unusual—unusual circumstances, “single source payments” are to be avoided. (One would also think that newspapers would want to disclose which of their writers or columnists were on the payroll of the government.)

Aside from the potential for out and out corruption (which I don’t think is happening here in a Tony Soprano sense), there is a particular policy concern. Single source payments can create a situation where bureaucrats with enough control over the purse strings to cut a check are cutting checks to one particular person who is most likely to give the results sought by that bureaucrat in an attempt to influence government policy—without the government necessarily even knowing the influence is present.

According to the Globe and Mail, a government contract valued at $24,500, or $24,985 for that matter, “[is] just under the value [of $25,000] at which departments [of the Canadian government, such as Industry Canada] are obliged to put most contracts up for public tender” or what we would call a “request for proposal”.

The recipient of these government contracts in the Globe and Mail story received two such contracts, each for $24,500. But the story also tells us that “Treasury Board policy also states: ‘Repeat commissioning of a firm or individual without competition should not become a practise, even if the value of the contract is under the mandatory threshold for the calling of bids.'”

Now when you search the Industry Canada website for any references to the very well funded Michael Geist, his name is not to be seen. Lawbytes, Inc., however, does come up a few times. And although Industry Canada made five payments to Lawbytes, none of them exceed the magic $25,000 limit set by the Treasury Board of Canada.

October 1 to December 31, 2004
Contract 5014050 – 2004/12/20 – 2004/12/20 – $24,985.00 –

April 1 to June 30, 2005
Contract 5015474 – 2005/05/12 – 2005/06/10 – $18,725.00 –

July 1 to September 30, 2005
Contract 5015851 – 2005/07/18 – 2005/10/31 – $10,700.00 –

April 1 to June 30, 2007
Contract 5019637 – 2007/05/09 – 2007/09/14 – $21,200.00 –

July 1 to September 30, 2007
Contract 5019981 – 2007/08/13 – 2007-09/10 – $10,176.00 –

All of these payments to Lawbytes, Inc. are for “Other professional services not otherwise specified” or “management consulting.” Presumably this $85,786 was paid for some kind of work product, none of which is identified.
The Canadian taxpayer paid for something with the $85,786 that I’ve found. The question is – what is it?

Because Geist is injecting himself into the international policy debate (in at least one case courtesy of Google in London) and has obtained US backing for the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP, influences on him and people he influences are of increasing importance to the creative community around the world. (Not to mention his argumentation supporting the blatantly infringing behavior by the losing side in the Isohunt U.S. case—yet another loss for the anti-copyright crowd in the courts.)

When trying to describe these activities, the word “lobbying” comes to mind — if Geist is being paid by bureaucrats at Industry Canada to lobby the Canadian government, either as a matter of law or of practicality, it seems like that should be disclosed both to the public by Industry Canada and by newspapers carrying his materials.

And even if this isn’t lobbying as a matter of law, these payments certainly seem to be secretive in the most business-as-usual, non-transparent manner. For someone who in my view is obsessed with calling out others on secrecy (like ACTA) and for the fundamental need for “public scrutiny and discussion”, a number of questions come to mind:

What exactly were these payments for?

Was there competitive bidding for all of these projects?

And are there other work “projects”, payments or consultations that we don’t even know about yet?

Stay tuned.

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist

See also: The Children of the Lessig God and the Viking Pirate Kings

Some things never change

January 24, 2010 Comments off

As David Mamet once said, film is a collaborative art. Now bend over.

Explicit but funny. In case you were wondering what the REAL remix culture was like.

New Music 1-23-10 @semaphoremusik

January 23, 2010 Comments off

Liz Pappademas — Lomo Prieta
LA Weekly: “She has such a gift for palpably poetic lyrics and evocative, soul-swept melodies, perhaps the mayor can appoint her as this city’s Official Post-Earthquake Consoler to help us recover when the Big One inevitably lays us low.”

Amid Concrete & Callousness
“What starts out with agreeable-enough Thrice-ish histrionics soon hops to a strange reality where Enter Shikari’s debut had as seismic an effect as Dylan going electric. An easy listening version of that reality… It takes real talent to be this worrying.”
- The NME

Rhett Miller (@rhettmiller)

Maple Leaf

20 Questions for New Artists: Pre-existing Contracts and Aggregators

January 22, 2010 Comments off

For the next few weeks, we’re going to post sections from the article “20 Questions for New Artists” by Chris Castle and Amy Mitchell some of which has been posted various places. If you are interested in getting a free copy of the basic article, write to before February 1. This doesn’t constitute legal advice, or any intent to form the attorney-client relationship. Chris, Amy and others will also be publishing the “Artist Glossary of Industry Terms” as a companion guide.

Pre-existing Contracts:

Ask your band mates for copies of any music industry contracts the band, or any of you, have previously signed before you formed or joined the band. Whether it be a credit card, management agreement, publishing deal, previous band agreement or a production agreement, it is important to understand the band’s current rights and restrictions. If any of the members are still tied to an exclusive recording agreement from a prior band, or has credit card debt from a prior band, that needs to be cleared up sooner rather than later. Extracting the artist from a prior agreement may not be quick or even possible.


It is almost required that an independent artist sign up with an aggregator in order to have your works serviced to many online outlets–some aggregators service over 300 different retailers.

It is important to remember that without marketing and promotion, a new artist is simply a needle in an even bigger digital haystack. Do not expect the aggregator to do any significant marketing or promotion, much less guarantee it.

Given that there are so many potential digital outlets, it is important for an artist to be able to decide on a case by case basis whether they want to be included and preserve the right to opt-in to any retailer or to opt-out at any time.

Artists should also be able to terminate the aggregator deal on short notice for any or no reason (e.g., 30-60 days). If you are asked to sign a deal with an indie label or with a major label, these labels will require that you give them exclusive distribution rights–including the digital rights you have already granted to the aggregator. That means that you need to have the ability to terminate your aggregator deal and transfer digital distribution to the new label. There have been instances where digital distributors tried to hold up artists from signing to bigger situations based on a prior grant of digital rights. As digital becomes the primary means of sales, this issue is front and center.

How the aggregator is compensated is also an issue of concern. In the traditional model, the aggregator took a percentage of sales as their compensation. This meant that the aggregator only made money if the artist made money. (This is similar to a traditional distributor model.) Some aggregators charge a flat fee on some basis (such as a per-retailer basis) instead of a percentage.

Each model has its strong and weak points. The percentage model pays the aggregator regardless of whether they are making an effort to stimulate sales (which few of them do in any event). However, under the percentage model the aggregator only makes money if you make money, so the incentives are aligned. The percentage should be low (10% or so) to take into account that the aggregator has lower incremental costs over time of maintaining content in their catalog.

The flat fee model has the artist pay the aggregator a fee for distribution instead of paying the distributor a percentage. While this is attractive from the point of view that the artist knows what their distribution costs will be up front, it also transfers all of the risk of distribution to the artist.

In order to determine which is the better model, the artist should compare their most favorable percentage based offer to the flat fee model and see what the breakeven point will be. Try using a formula like this:

[Flat Fee]/[percentage] = Gross Income

Gross Income/wholesale price = breakeven units

or, for example:

$100/.10 = $1,000 (Gross Income)

$1,000/$0.70 = 1428 units (rounded down)

In the example, a $100 flat distribution fee is equivalent to a 10% distribution fee model if you sell 1,428 units at a wholesale price of $0.70 (a typical wholesale price for permanent downloads). That means that at 1,428 units you will be indifferent between the two models. It also means if you sell fewer than 1,428 units, you will be better off under the percentage model. If you sell more than 1,428 units you will be better off under the flat fee model.

To take another example of the flat fee model, what would the flat fee equate to under the percentage model at 500 units at a wholesale price of $0.70 (a typical wholesale price for permanent downloads)?

[Flat Fee]/[Gross Income] = Distribution Fee as a percentage

$100/[(500) x ($0.70)] = 28.6%

In any of these examples, you will need to use your own projections on sales, wholesale price and configurations in order to get a projection that is relevant for your own use.

Also, the aggregator need not collect SoundExchange monies and should not be able to enter into any agreements on behalf of the artist/copyright owner that allows the aggregator to waive any rights (such as litigation rights) or to settle any claims.

See Also: Band Administrator/Split Sheets

See Also: Social Networks and Domain Names/Trademarking the Band Name

See Also: Performing Rights Society Affiliations

See Also: Bank Accounts/Tax Returns/Accountants

See Also: Have you Registered with SoundExchange?

Copyright 2009 Chris Castle and Amy Mitchell. All Rights Reserved.

It’s a lot of money

January 18, 2010 Comments off

Jerry Lewis is a man who has dedicated his life to fighting countless personal disasters through his “Jerry’s Kids” telethons, which is a fine example of the power for doing good of the professional creative class.

One year when I was watching part of the telethon, Jerry Lewis told one of the many stories of his personal experience trying to bring hope and help those who need it and to those who want to help.

Jerry was walking through an airport and a member of the janitorial staff came up to him and thanked him for everything he did to help folks with MS.

The janitor told him proudly, “I gave you $5.”Jerry said he wasn’t quite sure how to react to the $5 gift. The man then said, “I know that’s a lot of money, but I wanted you to have it because you’ll do the right thing with it.”

I know that’s a lot of money.

Sacrifice is relative. What’s important is to do the right thing.

There will be a benefit for Haiti at Austin Music Hall on Sunday, January 24 courtesy of Direct Events and the artists and musicians of Austin, watch this space and for details. Keep an eye out in your town, your local artists are probably doing the same thing.


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