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Archive for February, 2010

"Why Artist Free Agency Matters" 10 Years On

February 27, 2010 Comments off

I thought some artists might enjoy reading a paper I presented in 2000 titled “Why Free Agency Matters: The Coming Changes in Record Company-Artist Relations“. This was the beginning of my artist-as-free-agent theory and philosophy. Although I’d probably change some of the reference points if I were to re-write it today, the essential idea is there.

From time to time over the coming weeks I will revisit some of the essential ideas in the article and examine how they have held up over the intervening 10 years.

See also: Artist rights are human rights

Twenty Questions for New Artists Series by Chris Castle and Amy Mitchell:

See also Publishing Company/Marital Status/Instruments and Inventory/Passport and Work Permits

See also: Insurance/Legal Names/DOB and Nationality

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?

Conflict Search Goes European: Brussels launches antitrust inquiry into Santa’s Toyshop (aka Googleplex)

February 24, 2010 Comments off

Remember this quote from Dana Wagner, then lead antitrust counsel for Google? “‘We want to be Santa Claus,” Mr. Wagner says. “We want to make lots of toys that people like playing with. But if you don’t want to play with our toys, you’ve got us. ‘We can’t really do evil things very easily – and if we did, you would leave.’”

But “[o]ne day in June 2006, search startup Foundem vanished from Google. Foundem is the developer of a “universal vertical search” technology, and currently offers comparison shopping across a range of consumer and travel categories by drilling down into vendor sites and returning details of actual flights and products. But on 26 June 2006, Google flipped a switch and all of the obvious comparison shopping keywords no longer applied for the company. Foundem had been effectively ‘disappeared’ from Google search results.” Thank you, El Reg.

“‘Google is in a position to pick the winners in just about every web-based market,’ says antitrust lawyer Gary Reback, who is part of the charge against Google Book Search. And, he adds, ‘it can do it without anyone even knowing.’”

And that is the point. Contrary to what Mr. Wagner says, Google can do evil things very easily. Just ask any company that has been “disappeared” by an adjustment to the Google algorithm (heavily protected by the IP rights that Google ignores when it comes to creators).

I’m sure that “disappeared” concept is not very popular at the Googleplex–kind of like Santa absconding with Mommy and the toys. Another place it’s not too popular is Brussels.

So how did the Smartest Guys in the Room prepare themselves for their first real Antitrust Beauty Pageant? First and foremost, by a lack of supervision. The first question you have to ask in this kind of meltdown is where was the board? Nowhere to be seen, apparently.

Second is, who programmed the algorithms to penalize competitors and push Google’s own products and services to the front of the line? Someone did. Just like YouTube would like you to believe that the direct infringement of other people’s work is “automatic”, someone had to decide that it could be automatic, just like some person had to decide to disappear Foundem to the back of the line in Google search results. Actually, Google can do evil things very easily–but they do it in the background to the proverbial “guys in the garage” – the next wave of innovators who have a difficult time fighting back, either because they are not as rich as Google (almost everyone) or because the harm is so massive that they would go broke trying to fight on Google’s litigation pitch. Particularly when Google can go to the public markets to raise litigation funds to perpetuate what polite company would call infringement. (Roughly like printing money.)

Some person told the machines what to do, just like some person perpetrated the bad acts that became the financial meltdown. And given the reputation of the Google leadership team for hands on involvement, it seems unlikely that a low level employee acting alone would be solely responsible. But if it gets that far, I’m sure we’ll find out to everyone’s shock and awe that there was one bad apple somewhere.

But most importantly for setting the tone for Google’s operations worldwide was Google Books. I guess there may be a more efficient way to alienate every creator on the planet all at once, but I frankly don’t know what it is. The bungling of the Google Books land grab has focused the governments of the world on Google and its activities–probably some of the WORST legal advice ever given.

As we have seen with Google Books in Europe and elsewhere, Google is a company that thinks nothing of attacking countries. History has shown that very few nations have been able to hold on by force to territories that they took by force. And taking someone’s national heritage by force is close enough, and Google Books is clearly an attempt to take whole swaths of national heritage and put it under the control of the Leviathan from Mountain View. And don’t forget–they have said that books are just the beginning. Movies and music are next. (They’ve actualy already started with movies on YouTube.)

And now–now we find in the Financial Times that “[t]he European Commission has launched a preliminary antitrust investigation into Google’s search engine and its search-advertising service [in response to complaints about its search practices] from Foundem, a UK price comparison service, and ejustice.fr, a French legal search engine, both of which had complained that they had been relegated to an unfairly low place in Google’s search rankings.”

The story of UK startup Foundem is quite interesting (see “When algorithms attack, does Google hear you scream?”: “One day in June 2006, search startup Foundem vanished from Google. Foundem is the developer of a “universal vertical search” technology, and currently offers comparison shopping across a range of consumer and travel categories by drilling down into vendor sites and returning details of actual flights and products. But on 26 June 2006, Google flipped a switch and all of the obvious comparison shopping keywords no longer applied for the company. Foundem had been effectively ‘disappeared’ from Google search results.”

“There is a widespread view that Google’s rankings are untouched by human hand, crafted impartially by machine, and machine alone. But there’s much more to it than that – Google’s verdicts on landing page quality are Google’s opinion, and the company even says as much, sometimes. The algorithms play a part in the verdict, certainly, but algorithms are produced by humans working to policies, so you could view them as a prism through which Google’s opinions are projected.”

We previously introduced the concept of “Conflict Search“. A good definition of Conflict Search is:

“Over several years…we’ve built the infrastructure, search algorithms, and presentation mechanisms to provide what we see as just the first step in the evolution toward universal search…using it to blend content from [Google] Images, [Google] Maps, [Google] Books, [Google] Video, and [Google] News into our web results.”

And who said that? Marissa Mayer, VP Search Products, Santa’s Workshop, quoted on her description of Google’s “Universal Search” initiative.

As Foundem says in their eye-popping complaint filed with the FCC:

“Universal Search transforms Google’s ostensibly neutral search engine into an immensely powerful marketing channel for Google’s other services. When coupled with Google’s 85% share of the global search market, this gives Google an unparalleled and virtually unassailable competitive advantage, reaching far beyond the confines of search. Universal Search allows Google to leverage its search engine monopoly into virtually any field it chooses. Wherever it does so, competitors will beharmed, new entrants will be discouraged, and innovation will inevitably be suppressed. These are not hypothetical risks. Although Universal Search is still in its infancy, there are already compelling examples of the harm it has done to competitors across a range of markets.”

In a word, Conflict Search. Santa is not neutral.

Foundem is fighting back. The best way to fight bullies is to fight bullies.

Like the man said, “the harder they come the harder they fall.”

The Spy Who Consulted Me Redux: The Consultation of the Mikado

February 18, 2010 Comments off

There is much ado about secrecy amongst the anti-copyright crowd these days, power and influence being what it is. Lots of intrigue, mandarins worthy of the great Pooh-Bah himself plotting and scheming to influence the levers of government and tame the great Leviathan. All in the name of consumers, of course.

Michael Geist is certainly no stranger to such intrigue, yet is very critical of secrecy and all things not transparent when it comes to international intellectual property policy. So it would seem that any comings and goings in the halls of power that he might have would surely be activities he would want out in the open for all to see. Particularly with what one might call “covered executive branch officials.” If one were trying to find a name for such folk. And indeed, with a media darling such as Geist, surely all the mandarins know exactly who he is—one member of the professoriate who needs no introduction.

For example, in his repurposed and remixed op-ed/blog “Copyright Lobbying Behind Closed Doors” he sounds like he’s wagging his finger: “As thousands of individual Canadians speak out against [Canadian copyright reform legislation Bill] C-61 this summer, certain groups have obtained special access to Industry Minister Jim Prentice and his political team to make their case.” “Special access.” Whatever could that mean?

And then again Geist admonishes us all about one of his favorite bogeymen, the Anticounterfeiting Trade Agreement (ACTA): “The time has come for Canada to stand up and say that this [the ACTA negotiations] is wrong and that it will not continue with the process until it meets the appropriate standards of transparency.”

Good thing for us consumers, Canada may not be sufficiently transparent for Geist, but there is a Canadian equivalent to what the US calls the Freedom of Information Act—the Access to Information law. It was an “ATIP” request that produced an interesting document that appears to be a draft of a memorandum to be sent to the Canadian Minister of Industry in order to prepare the Minister for a meeting arranged for the Minister by someone at Industry Canada, a meeting with—Geist.

“To assist you, we have attached talking points (see Annex A) and Dr. Geist’s curriculum vitae (see Annex B).” A helpful handwritten note to Annex B says—“see if there is a shorter version.” Those of you who have seen the voluminous CV that Geist posted to his own website will, no doubt, sympathize. A good mandarin would not want to overwhelm their boss with a firehose of that volume of information. Hopefully the CV was edited down to the customary page or two.

There is also a helpful summary of the pending copyright reform bill, which judging by the date was what was to become the ill-fated Bill C-61. The editor has struck out a description of the difference between C-61’s notice and notice and notice and notice and notice and…notice provisions and the U.S. version of “notice and takedown” (equally toothless in the eyes of some critics). The editor seems to want to make it clear to the Minister that Geist will likely support the “sensible derivation” from the U.S. practice.

Now from whose deft hand flowed these helpful handwritten comments? The names on the memo are Boothe, Bincoletto and Dicerni. I’m not quite sure at this point exactly what role these names play in the dramatis personae.

But we can adduce certain assumptions from the form of the memo. The drafter clearly knows the man who needs no introduction. And given Geist’s media heft, wouldn’t the Minister also already know—or at least know of–Geist? The man who needs no introduction? It almost seems that the bureaucrats are trying to be helpful, trying to make sure that the meeting between their friend, perhaps their champion, but by the looks of things their consultant, goes as well as possible. And they want to alert the Minister as to Geist’s views. Why?

Given the deft editorial hand of the grand Pooh-Bah, I can’t wait to see the talking points. But alas—redacted. Every single one. Words forever banished to a cramped file in a dank basement in a gloomy government building. Words never to feel the cleansing light of day, never to revel in that freeing colonic joy of sunlight. Denied eternally the chance to join the dance of all the other free information in the transparent society.

Not only are the words redacted, but the very meeting is shrouded in mystery. The document produced under ATIP appears to have been once classified as—SECRET.

SECRET. One would think the very word would cut Geist to the core, what with him being such a zealous transparency advocate. Yet it appears that all involved intended to keep secret not only the preparation for the meeting, but the meeting itself were it to have occurred. I’ve certainly found no evidence that Geist disclosed it. To the contrary, it seems to have occurred at the very time he was pounding away about transparency, etc., so one would have expected him to reject such terms—assuming he knew that he was trafficking in classified information. And then, of course, there’s the issue of his own security clearance.

Now, why would a draft preparatory memorandum regarding a proposed meeting between Geist and the Minister of Industry be so important as to have the substance of the proposed conversation hidden from the public. Much less—classified.

SECRET.

“As thousands of individual Canadians speak out against C-61 this summer, certain groups have obtained special access to Industry Minister Jim Prentice and his political team to make their case.”

Yes. It would appear that certain groups may have got “special access” courtesy of the bureaucracy. Isn’t that special?

If you think we are worked by strings,
Like a Japanese marionette,
You don’t understand these things:
It is simply Court etiquette.

If You Want to Know Who We Are
from The Mikado
By William Schwenck Gilbert and Arthur Sullivan
Copyright 1885

Stay tuned.

See also: A handy chart of Lawbytes government contracts

See also: A handy chart of Geist operations

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist

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

Calling Cabal Members

February 17, 2010 2 comments

Please respond if you are a member of Professor Pamela Samuelson’s copyright cabal, we’re trying to get invited to the next meeting.

Let’s Do the Time Warp Again: Cheap Stimulus

February 15, 2010 3 comments

I was astonished that the financial crisis in Greece got at best lip service on the “Sunday shows” in the US. The complexity of the negative effect on Eurozone economies of Greece’s 125% plus debt to GDP ratios is alarming in this, the sternest test of the Euro and the vitality and wisdom of maintaining a financial union absent a political union. The EU, unlike the US, does not have the American system of gigantic automatic federal transfer payments enforced on EU taxpayers that shifts funds at the federal level as a matter of course. The International Monetary Fund essentially provides that kind of relief (although that’s a gross oversimplification).

While this may change, recent statements by France and Germany, both of which are now facing a political choice for decisions made over a decade ago to give up their respective historical currencies. The fact that Gordon Brown looks like a genius on this issue (given that Britain didn’t join the Eurozone–another gross oversimplification, I know) tells you how dire the situation really is.

The situation in Greece may be isolated, but it may be the first of a few dominoes to fall. A year ago we started hearing about “short term stimulus” and how the withdrawal from “short term stimulus” would have to be “managed” (see “Quantitative Easing Explained“) in the “middle term”. Many think we are now in the middle term, and politicians are looking for cheaper ways to accomplish economic stimulus with a frightened eye on 70s level inflation (which some of us think is all but inevitible).

Here’s one idea for cheap stimulus: Enforce the copyright laws. When you hear the infringement issue discussed (such as in the Tenenbaum case and Thomas cases), it is as though the pro-file bartering side arrived through a time warp and it is now 1999, the dot com boom bubble hasn’t burst, the creative community had not fallen apart and what’s a little free music “shared” among friends.

Good stewards like Rick Carnes have tried for years to raise the red flag, warning that unbridled file bartering is not a business, and that the core creators in music, the professional songwriter, will not be able to sustain themselves economically. Not only has Rick been mocked and attacked by the anonymous mob (“for none of us are as cruel as all of us”), he’s been largely ignored by majorities of lawmakers (with some notable and commendable exceptions).

So rather than doing the time warp again, read the FCC filing from a few weeks ago by the entertainment industry members of the AFL-CIO: The Directors Guild of America, the International Alliance of Theatrical and Stage Employees, the Screen Actors Guild and the American Federation of Television and Radio Artists. Predominately working people, not the “rich rock stars”.

“Internet theft threatens grave harm to the output of our nation’s creative industries, and to the artists and craftspeople who make up the membership of [these AFL-CIO member unions]….[These AFL-CIO member unions] represent over 300,000 workers who create a multitude of diverse films, television programs, and sound recordings that are sought-after by consumers around the world. Protection of their lawful rights to earn a living from the sale and distribution of that content should be one of the principal goals of [government].”

For protection of the legal rights of citizens really is the primary function of government, isn’t it? Particularly when those rights have been recognized as human rights and protected by international human rights treaties?

The unions emphasize the importance of artist rights as protected human rights:

AFTRA, DGA, IATSE and SAG collectively represent artists and craftspeople who create the movies, television programs, sound recordings and other forms of entertainment that people around the world love and demand. Together, [these AFL-CIO member unions] represent over 300,000 individual workers who depend upon the enforcement of this country’s copyright laws – and the protection that affords against theft of their creative output – to earn their living. At stake are not just our members’ jobs and well-being, but also the well-being of their families, and the hundreds of thousands of ancillary jobs in communities across the country where they live and work. The revenue that their work brings to this country from around the world is critical not just to these workers and this industry but to our national economy as a whole. That is why the protection of these creative works must be a fundamental consideration in the Commission’s deliberations in this proceeding.To characterize our members’ contribution in terms of dollars and cents or as mere “intellectual property” fails to capture what makes entertainment workers unique….”

It also fails to capture the protections to the human rights of artists required of UN member states by the various human rights treaties.

(See, for example, 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.)

So whether you are Judge Denny Chin ruling in Google Books, Judge Michael Davis ruling in the Minnesota file barter case, or just an anonymous member of the mob, you would do well to take into account the obligations of the United States (or your home country) to protect artists that were undertaken in the international documents.

And don’t pretend that it’s 1999, because it really isn’t.

Politicians who are looking for “cheap stimulus” could start with coming to the aid of the professional creative community that has been in its own depression since way before the current crisis. Despite the popular mantra of “failed business models” and “it’s the industry’s fault” and “What do we want? FREE STUFF! When do we want it? NOW!”–there is still a fundamental and simple truth.

Markets operate on rules. If there are no enforceable property rights, there will be no market. Without a market there can be no business model. Property rights online have been allowed to decline almost to the point of extinction, yet everywhere that rights are recognized (largely voluntarily by responsible folk such as Apple, Microsoft and Amazon), wealth is created despite the greatest failure of law enforcement I can recall. Imagine what would happen if government actually did their job.

This is cheap stimulus–the government already pays for the Assistant U.S. Attorneys and the prosecutorial apparatus. All that would be needed would be for the government to let them do their job. They do it for the trial lawyers, how about for the creators?

Pork, pork everywhere but not an ounce for us.

This will not be forgotten. Why not have the memory be a pleasant one?

Let’s not do the time warp again.

Welcome to the blog roll: Explore Music

February 15, 2010 Comments off

I have to recommend a great site hosted by Alan Cross, who is, as we say in my business, like a guy. A solid records man.

Explore Music should be on your regular reading list and I hope you check it out.

Why we love Paul Williams

February 14, 2010 Comments off

An excellent post on Huffing & Puffington by Paul Williams, ASCAP president and gifted songwriter. Here’s a key part:

“A growing number of creative people — those talking from experience as songwriters or performing artists — are speaking up. They’re sharing legitimate perspectives on why taking content and ignoring copyright hurts those creating the music more than anyone else.

The list of these talented, respected and often critically-admired individuals constantly grows. Check out the thoughts of folks like Billy Bragg, Prince, Lily Allen, Bono or Krist Novoselic. Reach back to Metallica’s stance at the dawn of Napster. (And it’s not just songwriters or performing artists talking; digital pioneer, Jaron Lanier, makes many similar points in his new book, You Are Not a Gadget).”

A long time ago, when I lived in Frank Lucas’s New York (see Ridley Scott’s American Gangster), I got mugged one night by a junkie. During the attempted mugging I thought to myself that New York was in a nose dive of permanent decline and that there was no pulling out. They may as well just push it into the sea. Even so, there were sparks of people fighting back–which is why it was an attempted mugging–and looked to their civic leaders for guidance. None came, and it was that supreme disconnect between the street and City Hall that I think I was responding to. That all changed a few years later, and looking back I realized that I was wrong to lose hope that the situation would ever turn around.

Having survived Frank Lucas’s New York, I think I’m better prepared to survive Eric Schmidt’s Internet. One day, decent people will rise up and this blight will become “youthful indiscretion”, something people did in college, like wide ties and platform shoes. They’ll all deny actually downloading, just streamed did they, like they didn’t inhale.

The exact path is a bit fuzzy, but what I do know is that we need to all lead each other out of the problem. Trust me–the government won’t do it until we do. Until this behavior becomes a confirmation question, it will not have risen to a level of appropriate seriousness. We will continue to be told “Don’t Be Moral“, nothing to see here, move along.

As long as the government allows Google to print money in the public markets to fund litigation over its massive infringements, artist’s can’t fight Google’s money with money–not even other countries can win that battle–so we will have to do it by other means. And that doesn’t even count Megavideo, Rapidshare and the other Children of the Lessig God.

I commend Paul Williams for taking a leadership role in speaking out on these problems.

See also: Why We Love Lily Allen, Bono and Krist Novoselec

See also: An Inconvenient Truth: Songwriters Guild President Rick Carnes talks about the effect of piracy on American songwriters

Artist Glossary of Industry Terms–Unrecouped, Recoupable Costs, and Recoupment Rate"

February 13, 2010 Comments off

Unrecouped

To be “unrecouped” under a recording agreement means that an artist has received an advance but has not yet earned monies equal to that advance.

Advances are a prepayment of (or in jargon, “paid against”) revenue streams that are defined in the contract under which the advance is paid—meaning that if a record company pays Artist A an advance of $100, Artist A must also ask what sources of revenue are going to be applied against that $100 in order to recoup it.

For example, the writer’s share of public performance royalties for songs (i.e., royalties paid by ASCAP, BMI or SESAC) or the featured artist’s share of public performance royalties for recordings (i.e., royalties paid by SoundExchange) are not to be applied against unrecouped balances. Those royalties are paid on a “nonrecoupment basis” meaning that they are not taken by the record company or publisher to recoup an unrecouped balance. Likewise, performance fees for live shows are not typically applied against unrecouped balances (except under certain circumstances in “360” deals).

Recoupable Costs

Not every cost for creating, marketing, or promoting an artists record is an “Advance”, i.e., a recoupable cost. Typically, recording costs, video production costs, artist advances and tour support have been recoupable from record royalties in traditional record deals, and writer advances and a handful of other costs have been recoupable from revenues other than the writer’s share of performance royalties in publishing deals (such as copyright registrations and song demos).

Artists who are signed to a recording agreement (or a master license agreement) with a record company have royalty accounts administered by the record company. Recoupable costs are “debited” to an artist’s royalty account, and revenues are “credited” to the artist’s royalty account. Royalty accounts usually come in two flavors: artist royalties and mechanical royalties. Artist royalties are paid for sales of records (whether digital or physical) or license fees for the sound recordings (such as TV licenses), and mechanical royalties are paid to the artist as a songwriter on songs that the artist writes all or part of that are “embodied in” the sound recordings.

Never the twain shall meet in a traditional record deal–except in unusual circumstances we call the “Four Horsemen of the Apocolypse”, meaning charges for (1) indemnity claims (more about this later); (2) overpayments of artist or mechanical royalties (meaning the label paid you more than you were entitled to); (3) union penalties that are your fault; and (4) unexcused overbudget on recording costs (or tours).

Record companies sometimes want to “cross” mechanical royalties with record royalties for recoupment purposes in certain kinds of deals, but traditionally this has not been the case. (It also makes it very difficult to get a meaningful co-publishing deal if your mechanical royalties are not available for recoupment to the publisher because the record company has used the payments to recoup advances under the artist recording agreement.)

Recoupment Rate

Once an artist knows the amount of recoupable costs to be debited to their royalty account, the next question is what is the recoupment rate, meaning how will revenue be credited to the artist royalty account. This is usually at the “all in” rate, meaning the gross artist royalty rate payable under the recording agreement.

If you know what your recoupment rate is in pennies, you can calculate your breakeven, at least roughly. For example, if your total advance is $100 and your gross artist royalty equals $1 in pennies, you know you need to sell 100 units in order to “break even”–meaning although you are earning royalties, those royalties are being credited against a $100 negative balance at a rate of $1 per unit so you are not payable until the negative balance in your royalty account becomes positive.

In this example, you would be paid $1 after you sold 101 units, because the first $100 goes to recoup your negative $100 balance.

It is more accurate to say that you will be “payable” because you get paid every 6 months or so, and advances are debited on a “rolling” basis. This means that if you get other advances during the accounting period, those will be debited, too. More about this later, at this point, it is enough for now to understand how balances are calculated and recoupment is implemented.

Copyright 2010 Christian L. Castle. All Rights Reserved.

See also Publishing Company/Marital Status/Instruments and Inventory/Passport and Work Permits

See also: Insurance/Legal Names/DOB and Nationality

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?

The Spy Who Consulted Them: A Closer Look at Lawbytes, Inc. f/s/o Michael Geist

February 11, 2010 Comments off

If you follow what passes for intellectual property policy “debate” online, you will no doubt have heard the anti-copyright amen chorus warming up about the lack of public consultation in the negotiation of the Anticounterfeiting Trade Agreement, or ACTA.

This wringing of hands and wailing of the amici has particular resonance amongst non-governmental organizations, their advisors, their academic rock stars and breathless acolytes. The non-governmental organizations and academics, most prominently the very well funded Michael Geist, advisor to the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP, who most frequently attach themselves to the negotiation of international copyright treaties originating in Geneva are particularly incensed.

These “NGOs” complain that the public is insufficiently consulted by—governmental organizations. In other words, the NGOs (self-appointed, frequently astroturf groups with shadowy funding) are complaining that the representatives of the public are insufficiently representative. Only the NGOs and professoriate provide the correct level of consultation because—because—I’m not really sure why. Probably because that by definition they’re not elected? Because all governments are corrupt and only the NGOs and their academics provide the correct level of independent purity? And in the case of ACTA, are corrupted by “Hollywood”, those demon sheep from Malibu?

I don’t know the reason that ACTA is being handled outside of the clutches of the NGOs, but I do know that they don’t like it. Of course, if it becomes obvious that it is possible to actually get international IP agreements negotiated with only input from duly elected representatives—kind of the point in “representative government”—then this spike in irrelevance cannot be good for NGO fundraising.

Unless–you’re a very well funded consulting academic, such as the very well funded Michael Geist and his Lawbytes, Inc. company, consultant to government (see The Geist in the Machine for more detail on Lawbytes, Inc.). And no academic is stirring the paranoia pot on ACTA more vigorously than Geist. But Geist’s wailing follows a familiar formula—his enemies are “Hollywood” the Evil Ones From Malibu whose orcish hand is everywhere twisting nasty keys in the famous digital locks. Secrecy and skullduggery abound. Secret contracts by government agencies are a particularly specious example of this treachery. As Geist told us in his editorial “Gov’t Copyright Lobbying Contract Raises Accountability Concerns” that was critical of another government contract with the Creators’ Rights Alliance (supported by unseen documents obtained by someone under the Canadian Access to Information Act, which is similar to the US Freedom of Information Act, an interesting process):

“[Geist's repurposed blog/op-ed tells us that] [t]he [Creators' Rights Alliance or "CRA"] contract raises several issues. First, there is some doubt that CRA is a group that needs government funding for lobbying purposes. While several of its smaller members could undoubtedly use the support given that these associations typically lack the resources to provide ongoing representation, larger collectives such as Access Copyright and SOCAN already employ external lobbyists with millions of dollars budgeted for copyright regulatory hearings and reform.

Even if backing the CRA can be justified, the manner in which this contract was established elicits some concerns. Last summer, the contract was submitted through the Advance Contract Award Notification program, whereby the Ministry notified potential contractors that it intended to award a contract to CRA to promote the interests of Canada’ s creative community. Other parties were given 15 days in early July to submit a counter-proposal. When none were submitted, Canadian Heritage was free to proceed with the contract.

The structure of the contract itself appears to have raised some eyebrows within Canadian Heritage. As the funding was being considered, an internal memo noted that the Copyright Policy Branch ‘would be funding an organization through this contract to provide comments on government policy. There is a concern that the Copyright Policy Branch would be setting an unwanted precedent in such matters.’

To address that issue, a different branch within the same Cultural Affairs department administers the contract.

Internal correspondence also reveals that the contract was designed to further the department’ s own policy objectives. A senior official outlined the rationale behind the proposed contract, stating in an email that once the CRA funding was complete, ‘we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs.’”

Geist very eloquently lays down his concerns about transparency and openness in government contracting to protect the taxpayer, indeed, not just the taxpayer but the world at large, from the evil grasp of “lobbyists” furthering a government bureaucracy’s own agenda.

Like Enid Strict, Saturday Night Live’s “Church Lady,” only Geist can protect the public from this depraved force, only he has access to leaked documents that always seem to show up right on cue, only he has a curious degree of knowledge about information available to only a few policymakers, and only he can hold the Canadian government accountable (and more recently world governments as well). But unlike both his NGO pals and the Church Lady, Lawbytes, Inc. got tens of thousands of dollars from Industry Canada for consulting, not to mention the million dollars or so that the Canadian governments have paid to support Geist in whatever it is he does. And yet–it seems like they got the consultation they paid for. And what they paid wasn’t chopped broccoli.

But to date there is no evidence that Lawbytes, Inc.’s contracts were awarded using this “Advance Contract Award Notification” program that Geist criticizes for lacking the beloved transparency. It looks like the contracts and then the money were just handed out, including one contract that paid almost—but not quite–$25,000 for a single day’s work over Christmas break.

I have been unable to find any mention of these payments in Geist’s blogs or op-eds or repurposed blogs or reblogged op-eds, and have been unable to determine exactly what the work product was that was tied to these contracts. “This is entirely by design to move away from transparency to a small coalition of the willing who are determined to keep it as secret as possible.” Oh, no, wait—that was Geist waxing conspiratorial about ACTA in the Washington Post on a sojourn to the District of Columbia, not self-examination regarding the many Lawbytes, Inc. contracts from someone at Industry Canada.

The only written work product I have been able to find that corresponds to the $85,000 or so in payments to Lawbytes, Inc. appears to be Geist’s blogging, reblogging, opining and repurposing of blogging opining and a book against copyright reform that he edited around the time Lawbytes, Inc. got one of its many government consulting contracts.

What does it all mean? I’m so confused. But then I’m just a country lawyer and I’m not as smart as these city fellers.

Stay tuned.

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

The Bloodless Triumph of Google-ism: Slate’s Attempt to Marginalize Jaron Lanier

February 9, 2010 Comments off

Just in case you were ever wondering what a fully realized internal objectification of a human might look like, read Michael Agger’s cliched review in Slate of Jaron Lanier’s new book, You Are Not a Gadget. (In a shining example of fact checking in the new journalism, make sure you read the several retractions and errata first, particularly if you’re not up on your Boswell.)

I don’t know who this Agger person is, but by the looks of him I would just bet that he’s not a guy who has ever humped a trap case up three flights of stairs or who understands the true cost of towels. Also, not a guy you want at your side when you are settling with a biker club owner with a sawed off trained at your manhood. (Also known as touring.)

According to Slate:

“There’s also the problem of the counterexample: What great artist has been left unrecognized by the Internet? Who hasn’t found a niche?”

Surely he jests.

And then there’s this:

Lanier, to his credit, is not a simple pessimist. He does propose a solution to the difficulty of how to compensate artists, artisans, and programmers in a digital era: a content database that would be run by some kind of government organization: “We should effectively keep only one copy of each cultural expression—as with a book or song—and pay the author of that expression a small, affordable amount whenever it’s accessed.” Again, not a bad concept, but a platonic idea that sounds great in theory. I don’t see the government opening an iTunes store anytime soon.”

Oh really? What do you call that standardless goo of bad metadata, the Google Books Settlement? YouTube’s opt-out database? Maybe not government owned, but government protected. At least so far (although not for long if the governments of the United States, Germany and France have anything to say about it). And then there is SNOCAP and some of the good EU efforts at an orphan works database system.

Here’s an excerpt that I find particularly chilling:

“[Lanier's] critique is ultimately just a particular brand of snobbery. Lanier is a Romantic snob. He believes in individual genius and creativity, whether it’s Steve Jobs driving a company to create the iPhone or a girl in a basement composing a song on an unusual musical instrument.”

We have finally come down to someone being criticized for believing in individual genius and creativity. Is there another kind? This guy would likely find great comfort in those who think that the Berne Convention’s emphasis on individual author’s rights is due to an obsessive insecurity about originality.

God save us from those who believe in individual genius and creativity.

It is typical of non-music business critics of the music business that they devote no time or research to the subject, yet are willing to shoot from the hip in criticizing those who have. It is clear that Slate did not talk to one musician or give any particular thought to researching the issues prior to launching their attack on Jaron Lanier’s book. In fact, the review itself is a prime example of the very advertising driven shoddyness of The Man 2.0 in the Gray Flannel Suit that is in our future.

A wonderful Lanier summary of the problem that is uncritically ignored by Slate: “Funding [culture] with advertising is like connecting a tube from your butt to your mouth to get nutrition. The body can eat itself for a while, but will eventually die.”

Open the pod bay doors, Hal.

See also: The Man 2.0 in the Gray Flannel Suit

See also: Why We Love Lily Allen pts 1-4

See also: Why We Love Lily Allen, Bono and Krist Novoselic

See also: An Inconvenient Truth: Songwriters Guild President Rick Carnes talks about the effect of piracy on songwriters

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