Interesting post by a photographer on Slashdot complaining of–gasp–violations of the Creative Commons Corporation license by “big commercial companies” that use the photographer’s work in violation of the license. One of the examples he links to is Wired Magazine”.
The photographer askes “Does anyone care that we’ve gone to all this trouble to create new, more flexible licenses? Does it even matter when very smart people just flip the bird to the license?….I hate to type out DMCA notices but their attitude is that only uncool people complain about this and I should be happy about the publicity. Then they can be happy about not sharing their ad revenue with artists or photographers. What can I do?”
Answers: No, No, Nothing that you couldn’t have done anyway and maybe less.
Welcome to the Goolag, friend. Pick up your goodie bag with the KY, Handiwipes and lump of coal at the door. And you get the grand prize of being the crash test dummie in the case that determines exactly what rights you’ve given up by using the Corporation’s license.
And don’t expect Creative Commons to help enforce your rights–they’re busy raising millions for something that doesn’t involve you.
It’s hard to understand why anyone who represents songwriters or artists would do business with Google while Google is simultaneously selling advertising on pirate websites that are selling illegal copies of the very works that Google wants to license for its “legit” business, such as the Google Music service (whatever new levels of innovative thievery that thing holds).
The producer of the indie film “And Then Came Lola” offers the latest proof that the Google ethic—if you can call it that–is less “Don’t Be Evil” and more that they are happy to respect other people’s rights when the other people get a final nonappealable judgment on a packet by packet basis. Essentially day and date with the film’s release the producer has been locked in a struggle to take advantage of Google’s wonderful “notice and shakedown” regime that so enamored Judge Stanton (and his clerks) in the YouTube case. Because Google twists the “red flag” into knots upon knots upon knots.
“DMCA Hell” is the title of the wonderfully ironic short video that Ellen Seidler made about the hours and hours per day that she has to engage in the DMCA notice and takedown process—all because Google wants to sell advertising on illegal sites and because Google wants to make any attempt to stop them from doing it as burdensome as possible. Why? Because theft is built into the core business model of a public company.
Unfortunately, there is nothing new in this. In a 2006 case involving pirate movie sites, Google acknowledged that that Google offered the purveyors of pirate movies credit to buy advertising from Google for their illegal activities. Not only did Google find these young criminals to be creditworthy, Google actually supplied them with keywords, including terms such as “bootleg movie download,” “pirated,” and “download harry potter movie,” to boost—so to speak–traffic on the illegal website and increase piracy. According to the Wall Street Journal’s coverage of the case, of the $1.1 million in revenue the two sites — EasyDownloadCenter.com and TheDownloadPlace.com — generated from 2003 to 2005, $809,000 was paid to Google for advertising. And nothing was paid to the people who made the movies, worked on the movies, distributed the movies in legitimate channels.
My, my. Times have not changed much have they? Except that today these sites would be seized by the Department of Homeland Security, their advertising accounts impounded and their owners hunted.
Here’s the scam: the sites within the reach of John Moreton don’t host any content—the content is stored usually in cyberlockers in the really special countries. Usually in China or Russia. The US sites sell advertising—predominantly served by Google. And how do these people find each other? Google sells the keywords. Imagine the convenience! And to think that in the pre-Internet era these people only found each other in prison.
Understand—and don’t get sidetracked when the Google PR machine kicks in—this is not about selling advertising for illicit products. It is about a public company selling advertising for legal products on sites that it knows sell illicit products. And attract millions of eyeballs because of it.
As the Wall Street Journal noted in 2007, “Instead of relying on spam emails to drive traffic to [EasyDownloadCenter.com and TheDownloadPlace.com], the[sites] decided to rely on Google advertising. The high volume of traffic on EasyDownloadCenter.com and TheDownloadCenter.com caught Google’s attention, according to people familiar with the two men’s statements. To help stoke the traffic further, Google assigned the sites account representatives who suggested keywords they could bid on. Google also offered [the sites] credit so they didn’t have to use their credit cards to pay Google’s fees.”
Not much has changed. As Ellen Seidler demonstrates, Google is still profiting from selling advertising on illegal websites and they are now using the DMCA to wear down a new category of artist—one who is being robbed blind to Google’s benefit. A whole new definition of bullying beneath even the greatest bullies of history. Let’s see if Judge Stanton can find that in the legislative history.
So it’s hard to understand why any creator would do business with these people as long as they are promoting theft. No matter how desperate artists get, they should not be tempted by a payment from Google of money that was stolen from their fellow artists—or from them. Particularly not at the hands of “music lawyers” who take the king’s shilling.
It’s also hard to understand why the stock exchanges allow Google to trade when significant amounts of money from ill gotten gains are being reported on Google’s balance sheet as legal revenue. Congressman Brad Sherman expressed concern on a very similar issue at last week’s Foreign Affairs Committee hearing on intellectual property.
So watch Ellen’s “DMCA Hell” video and think about how it applies to you. Or to paraphrase Chico Marx: Who are you going to believe, Google or your own eyes?
See also: PopUp Pirates Ellen’s web diary of trying to protect her film from piracy and her DMCA notice saga, including her efforts at getting Google to acknowledge it was selling ads on pirate websites
See also: NPR story on Ellen’s experiences with piracy
See also: Backstage Magazine article on Ellen’s experiences with piracy
The professional creative community needs to pay close attention to what is happening to yet more creative jobs in the face of new copyright legislation in Canada. When you consider that the drafter of this legislation appears to be clearly under the influence of someone who does not care as much about her creative community as she does about satisfying the consumer electronics industry, all will become clear. The need to protect professional creators from the onslaught of geeks bearing gifts is very clear to the Canadian government, and particularly to Canadian Heritage Minister James Moore, in keeping with his ministerial duties.
The Canadian Broadcasting Corporation ran a story about some remarks made by Minister Moore under the headline “Copyright Debate Turns Ugly.” The irony of that headline is really very funny. Where has the CBC been for the last 10 years? “Turns”? It certainly isn’t turning ugly, it’s been ugly ever since Metallica was mocked for standing up for the rights that they are entitled to under the law when their government abandoned them.
But let me tell you about “ugly” in an attempt to separate the tech from the dirt. One sensationalist website posted this comment by anonymous user “Murder” in response to a nasty posting about a Canadian artist speaking out about her thoughts on the plight of Canadian artists:”when do we get to start killing people for destroying our rights and freedoms?” Who was this directed at? In the context, it seems pretty clearly directed in the general direction of James Moore. I personally think it was directed at James Moore, but I will leave that to others to determine.
Now where was the CBC on this story? Nowhere to be found.
For those who toil in the vineyard of public policy in the copyright area, anonymous threats of violence (including threats of violence against innocent family members) are nothing new. These are dealt with in the normal course through normal channels. But anonymous threats—even veiled threats—against public officials is a whole new area.
“For none of us are as cruel as all of us.” The slogan for “Anonymous” is a remarkably candid assessment of the mob mentality that is of paramount concern to anyone who values democracy in society, whether offline or online. Jaron Lanier and other leading thinkers have cautioned us about what can happen when the mob takes over.
It’s one thing when the leaders of the anti-artist crowd start stirring the pot and winding up their followers over policy matters. It’s another thing altogether when they republish what can only be characterized as a likely anonymous death threat. I cannot imagine what possible justification there can be for such things, but we may find out.
I think that people like Geist have a moral obligation, if not a legal one, to openly condemn such tactics and the republication of such statements. I’m sure that Minister Moore’s security detail will handle the problem. But it would have been nice to find out if the CBC thought an anonymous death threat against a public official is uglier than pointed comments in a speech by a public official.
The public visitors log at the White House seems to have been the greatest boon for the coffee industry in quite some time.
The former worldwide head of lobbying for Google, Andrew McLaughlin, joined the Obama White House as a senior technology official–but he still appears to be kept very much “in the loop” on Google’s current lobbying activities by his former employer and Google’s lobbyists. How is this accomplished? By calls or visits to the White House? Nope.
It is accomplished by emails to his private email account–or rather Gmail account–, his official U.S. Government email account and by meetings in coffee shops near the White House. Now why would he do it that way? Because both parties did not want to have to explain a visit recorded in the visitor logs? Ya think?
Now why would that be? Read the new batch of emails between McLaughlin and Google lobbyists, Free Press, etc., and you’ll get the idea. I don’t want to spoil it for you, but I think even the most stalwart defender of Google would have to admit that there’s something untoward going on at best and that the whole affair stinks to high heaven at worst. And this is just based on what has been disclosed. As one journalist wrote “Google is ‘Obama’s Halliburton’“.
McLaughlin is doing his President a disservice by continuing to hang on to his White House job. Nothing good will come of this. The National Legal and Policy Center has already called on the House Government Oversight Committee to get serious about this. It is only a matter of time until someone with subpoena power puts a microscope on this rats nest, if not a special prosecutor. In fact, according to the Washington Post, something of a food fight broke out at a Government Oversight Committee hearing yesterday among committee members demanding that McLaughlin come before Congress and explain himself and identify those who were protecting him. McLaughlin dodged the subpoena this time, but he won’t enjoy his double decaf soy latte forever.
And remember–these are crimes that could involve not just McLaughlin but those who were sending him the emails and sucking down the joe. Any lobbying reports filed on this stuff? Worth a look.
And then there’s McLaughlin’s boss, Beth Simone Noveck who didn’t show up for the House Government Oversight hearing. Ironically, this is the same Noveck who raised money for Lester Lawrence “Ace” Lessig III’s abandoned run for Congress right around the time that Creative Commons Corporation got a major donation from a trust associated with a confessed felon. As the White House staffer said, “We’re not doing [Lessig] any favors but we’re doing one for ourselves and for future of politics and civil liberties in this country.” (See also, Lessig, The Starving Artist Canard.) Does this email episode not just drip and ooze irony from the fan of Mr. Clean?
Grande Prosecutor Macchiato. No decaf on this one.
Outstanding testimony today before the House Foreign Affairs Committee by John Morton, Assistant Secretary of U.S. Immigration and Customs Enforcement, and also known as the Atticus Finch of IP enforcement.
Let’s do this thing.
Readers of MTP will remember that we have long cautioned professional artists about having anything to do with Creative Commons Corporation licenses. This criticism is mostly from the music point of view, but some illustrators and photographers are also concerned (see “Public Licenses: The Gift that Keeps on Giving” by Professor Jane Ginsburg and “The Tragedy of the Creative Commons” by Andrew Orlowski).
The biggest problem that we’ve had with the Creative Commons Corporation licenses is that the license is internally inconsistent in an artful sort of way–or as some might say gibberishical. When reading these things, you get the feeling that the drafter was genuinely trying to say something serious, and clearly took themselves very seriously, but simply lacked the knowledge to get it right with all good intentions.
The real question, of course, is why anyone on the receiving end would accept what the license refers to as the “lawyer-readable code” (a phrase that surely came from the mind of a student that might have been a cute idea for 5 minutes) which seems to be preoccupied with giving the illusion of a meaningful grant of rights.
Consider this gibberish in the Creative Commons Corporation FAQ:
“So I don’t have to pay to use Creative Commons-licensed works if I comply with the license terms?
As a general rule yes [meaning, I think, "yes you do not have to pay" in case you just got lost]—Creative Commons licenses are made available under royalty-free licenses. In the case of Creative Commons-licensed works that are licensed for NonCommercial use only, the creator or licensor reserves the right to collect statutory royalties or royalties under compulsory licenses for commercial uses such as those collected for public performances; so, you may still have to pay a collecting society for such uses of Creative Commons licensed works. However, these are indirect payments, not payments to the licensor.”
Note: In the U.S., the compulsory mechanical royalty for a song is payable on units made and distributed–not commercial vs. noncommercial. A very, very common mistake, but a mistake nonetheless.
The performance royalty is payable under blanket society licenses for public performances–not commercial vs. noncommercial.
I have absolutely no idea what is meant by “indirect payments” and I cannot find the phrase in the Copyright Act. But if such “indirect payments” exist in relation to a copyright (whatever they are) would these payments not be made to the copyright owner (presumably the licensor) at least in part? If not, then to whom are they made? And if someone other than the licensor is entitled to these “indirect payments” (whatever they are) how could the licensor have standing to waive the right to receive the monies?
Not to worry, as a licensee you can always fall back on your indemnity under the Creative Commons Corporation license if there’s an unexpected royalty obligation.
Oh, sorry, I forgot–there is no indemnity.
So in fairness, perhaps the FAQ suffers from trying to deal with too many different categories of copyright at once without distinguishing them. But wouldn’t it have been simpler just to say a licensor under a noncommercial license waives all the rights they can under applicable copyright laws, but that some rights may not be waivable in certain jurisdictions. And that the noncommercial license doesn’t cover commercial uses?
And then there’s the song titles.
Makes you want to say, “Deal me in!” don’t it?
A handy guide to all the places Google is being sued–courtesy of Read Write Web “Google vs. The World“