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Archive for June, 2011

Another case of independent creation

June 28, 2011 Comments off

I’m sure it was purely coincidence–both Declan McCullagh and Kathy Kristof cited to Ayn Rand in their criticism of the FTC subpoena for Google in the most recent antitrust investigation of the company.  Both writers linked to the other’s story on the crackdown, but did not quote or cite each other.  Yet both mentioned Ayn Rand and Microsoft in articles on the same subject on the same day published within hours or minutes of each other.

Now what do you think the chances are that happened by coincidence?

I’m writing about the FTC and Google–so naturally my thoughts turn to Ayn Rand.  Yessir, that Ayn Rand is never far from my thoughts when it comes to antitrust.

You don’t think that it’s anything like the LA Times and the NY Times deciding to publish editorials–unsigned editorials–supporting Google’s position on the Protect IP Act–within hours of each other?  Just another coincidence.

Anyone for talking points?

Something to remember in the Googleplex

June 28, 2011 Comments off

The Google Amen Chorus has already started the Blame Microsoft narrative.  I’m not quite sure yet how that’s going to break–Google is not as bad as Microsoft was/is or Google should be treated no worse than Microsoft was in its antitrust investigation.

I really don’t think comparisons to Microsoft will help Google much, at least not in the “steal it til you’re satisfied” area.  Starting back in the Pete Higgins days at Microsoft, i.e., in the mid-90s or so, Microsoft spent a lot of time trying to get it right with music licensing (and I assume movie licensing as well, but music is the one I know about).  In fact, aside from my avoidance of the categorical, I would say that I never encountered one situation where Microsoft infringed any works I was involved with.  Nor did I hear of any situation where Microsoft infringed anyone else’s music catalog.

Microsoft went way far out of its way, even before they launched their own music service, to make sure they licensed music properly.  I didn’t always like the terms, but here are some things they didn’t do:

–Argue that scanning 15 million books is fair use;
–Say that the law allowed them to infringe until they were caught, and then only be required to behave prospectively;
–Reserve $500 million to pay a Department of Justice fine for advertising illegal drugs (I think even Bill Gates would have been fired if he did that);
–catch criminal convictions for not removing videos of traumatized children that should never have been posted in the first place;
–send people out in creepy little cars to take pictures of every house in the world and then post them online without permission;
–use the cy pres process to reward what EPIC called their “consultants and lobbyists” with millions of dollars;
–develop a policy about the “creepy line”…

Shall I go on?  If you don’t think any one (much less all) of these actions is evil, reconsider your definition.

Not quite the same.  Maybe not such a good strategy.

Update: Google acknowledges receipt of FTC subpoenas in SEC filing

June 25, 2011 Comments off

Google has officially acknowledged receipt of FTC subpoenas: “On June 23, 2011, Google Inc. received a subpoena and a notice of civil investigative demand from the U.S. Federal Trade Commission (FTC) relating to a review by the FTC of Google’s business practices, including search and advertising.  Google is fighting the FTC tooth and nail until the last dog dies and we have spent all the shareholders’ money.”

No–wait, that last should read “Google is cooperating with the FTC on this investigation.”

The Special Rapporteur’s Report Redux: The Swedish Connection

June 25, 2011 Comments off

An insightful comment to Chris’s piece on the report of the UN Human Rights Council’s special rapporteur’s report comes from the Swedish Netopia.se blog (in Swedish but we used a translator–guess which one we didn’t use).  Per Strömbäck observes in his post:

“Castle points out that La Rue limited itself to take into account article 19 (freedom of expression and information) in the UN Declaration on Human Rights and turned a blind eye to Article 27 [artist rights]. I asked just that question to a panel at  Internetdagarna 2009 [conference] and Nicklas Lundblad (then at the Stockholm Chamber of Commerce, now in Google [as Director of Public Policy] and certainly an important source of La Rue) replied that article 19 provides instructions on how to article 27 should be rewritten.”

New Music Weekend: The Calm Blue Sea, Ariane Brunet, Mazes, Bombay Bicycle Club, Kate Todd, Phantom

June 24, 2011 Comments off

Staff picks:

The Calm Blue Sea (Austin) “Literal” @thecalmbluesea

Ariane Brunet (Montreal) “Dimanche”

Mazes (London) “Bowie Knives” @M_A_Z_E_S

Bombay Bicycle Club (Crouch End) “Emergency Contraception Blues” @bombaybicycle

Kate Todd (Toronto) “Drive” @katetodd

Phantom (Montreal) “We Float” @thisisphantom

Setting Man free from men: Google [finally] to be served with subpoenas by US Senate and Federal Trade Commission, but should Marissa Mayer be testifying?

June 23, 2011 Comments off

“Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.” Ayn Rand, The Fountainhead

According to numerous news outlets and apologists, Google is about to be served (one hesitates to say “hit”) with subpoenas by the Federal Trade Commission and the U.S. Senate.  One of Google’s principal apologists devotes some ink to comparing Microsoft’s experiences with the Senate to Google, which “by contrast, has shown more of a willingness to compromise“.   Really.  Was that “willingness to compromise” particularly present a few weeks ago when Google refused to show up to a Senate hearing on how it supports sites that profit from the theft of music and movies by sharing Adsense revenues?

In todays apologia, we are told that the U.S. Senate is grandstanding in their interest in getting Eric Schmidt or Larry Page to testify and is imposing a double standard on Google–why?  Because when the Senate had an interest in a particular functionality in Apple’s gear, Apple sent a divisional VP and not Steve Jobs.  The Senators haven’t gotten enough publicity and want to get more by calling Google’s CEO and “Executive Chairman” to respond to the people.

This argument–or talking point–from a Google-connected-journalist is echoed in, of all places, Marketwatch in the breathless paen entitled “Google Subpoena: An Attack on Capitalism” complete with truly odd references to Ayn Rand probably designed to raise the blood of Lessig’s fans among libertarians (conveniently cross-linked to CNET which links back to Marketwatch).  (Yet another example of journalist spontaneous independent creation concerning Google in less than a fortnight.)

This is sort of the equivalent of saying you must be a believer in the Reagan philosophy because you, too, eat jelly beans, or that you believe in the Clinton principles because you, too, have given money to charity.  No less because the writer seems to completely ignore the personal responsibility trope that is at the heart of Rand’s philosophy in her rush to bash the Congress and promote Google’s position.

The reason that CEOs should show up and take responsibility for those over whom they are responsible is because they are responsible.  This is particularly true in the case of Google.  Because “[m]oney is only a tool. It will take you wherever you wish, but
it will not replace you as the driver.”  Ayn Rand said that, too.

Both these pieces struggle from shoehorning in their talking points because they want you to focus on the clash of personalities between elected officials and unelected corporate titans instead of the democracy issue.  While it may be true that the officials and titans involved both think themselves superior to the other for whatever reasons, what is also true is that elected officials serve at the pleasure of their constituents, and the Google currency that makes it rich is its stock–sold in the public markets at the pleasure of those same constituents.  If Google wants all the benefits of being able to raise money in the public equity and debt markets to fund, among other things, its litigation against creators who cannot do the same, then Google can bear the burdens as well as enjoy the benefits.

And they can show up when the people ask them to.  That’s the deal.  These writers fail to address these points and for that reason I find their writing fallacious.

Setting that flaw aside, the two hearings present a false choice.  The Apple hearing that was and the future Google hearings have little or no relation to each other in substance or gravity.  The ultimate result of Apple’s testimony was probably going to be legislation dealing with user privacy.  The ultimate result of Google’s testimony might be breaking up the company and possibly someone doing time.  So it’s not grandstanding for the Senate to request that the top executives show up and take responsibility for the instructions they gave and not some lawyer who’s going to do all he can to run out the clock and avoid candor.

The big boys will show up eventually.  Why waste time?

I don’t know what Google’s problem is with sending Schmidt or Page.  They can always take the 5th.  Just ask Frank Costello.

It may actually be a better idea to hear testimony from Marissa Mayer, Vice President of Geographic and Local Services, Google, Inc. who said:  “[When] we roll[ed] out Google Finance, we did put the Google link first. It seems only fair right, we do all the work for the search page and all these other things, so we do put it first… That has actually been our policy, since then, because of Finance. So for Google Maps again, it’s the first link.” (at 45:10)

If it’s a first hand knowledge of how Google rigs search that you want, then someone may ask Mayer to explain under oath exactly what she meant in this statement on video.  A YouTube video, of course.  Is there another kind?  (And if not, why not?)

I think that it’s kind of ironic that this story is breaking the same day as the FBI capture of the criminal Whitey Bulger.  The wheels of justice turn slowly, but they do turn.  And Bulger reportedly said of the charges against him, “I know [the charges] pretty well.”  Who could ask less of Google?

“Independent” creation in the mainstream media

June 23, 2011 Comments off

Right on cue, the Amen Chorus in the anti-copyright  blogosphere grabbed on to a thin lifeline from the New York Times (“Internet
Piracy and How to Stop It
”) and the Los  Angeles Times (“Policing  the Internet”), both of which were independently inspired to publish major  editorials about the “Protect IP Act” (S. 968)  within hours of each other.  The  Amen Chorus would have you believe that both of these august papers (often  trashed as Luddites by their new fans) were in their corner with headlines  about how the two papers have “come out against” Protect IP, and even opponents of the legislation in the Congress used these pieces as evidence that the  country was coming to its senses.

The Inevitable  Conclusion

Unfortunately for the anti-copyright crowd’s Amen Chorus, New York Times and Los Angeles Times did not stick to the talking points.  If anyone actually read the editorials, this would become quite clear.  Why did these papers abandon the script?  The talking  points require suspending reality and real journalists fear to tread where  others rush in.  When finally confronted with the financial wreckage of unchecked theft, even the most innovative must  acknowledge the inevitable conclusion.

The New York Times  acknowledges in its lead that “Online piracy is a huge business.”  The Los  Angeles Times says “Cutting off the financial lifeblood of  companies dedicated to piracy and counterfeiting makes sense.” The New York  Times says, “Commendably, the Senate Judiciary Committee is trying to bolster the government’s power to enforce intellectual property protections. Last month, the committee approved the Protect IP Act, which creates new tools to disrupt illegal online commerce.”

The Los Angeles Times says “The operators of the largest online advertising networks say they can [stop payments to foreign rogue sites], although they object to the bill’s proposal to let copyright and trademark owners seek injunctions against them.”

These are not exactly arguments that support the broad conclusions being foisted on the blogosphere.  However, both papers have some objections to the legislation,  particularly the ability of creators to protect themselves by private actions and both papers would have you believe that the legislation is about Hollywood versus innovation.  And yes, the New York Times had to bring up the “dancing baby” case on YouTube, which has very little to do with the goals of the Protect IP Act (and the more we find out about that case through disclosures of once-privileged documents, the more it seems like a vendetta against creators).

But both papers summarily ignore the most important people who are to be protected by Protect IP—creators who cannot afford the litigation, particularly the international litigation, to protect their life’s work.  In short—American workers.  I doubt that either the Los Angeles Times or the New York Times would question a working artist’s right to call 911 if their car is being stolen, but they seem to be very concerned about an artist being able to rely on their government to protect them if their life’s work is being stolen.

Don’t Quit Your Day  Job

Not only are these workers ignored, but you would not know from either the New York Times or the Los Angeles Times editorials that one of the main issues driving the Protect IP Act is saving jobs in a horrible economy.  I was so startled that neither paper mentioned this key fact that I did a word search on their web pages.  The only place the word “jobs” appears is on navigation bar links to job postings elsewhere on the sites.  Ironic, yet prophetic.  Don’t quit your day job.

The ugly truth behind the Protect IP Act is quite simple: Rogue sites position themselves in foreign countries where they steal products from U.S. creators and inventors, then use the Internet to distribute these stolen products to the lucrative U.S. market.
U.S. companies then facilitate these illegal distributions through search engines and advertising sales funneling money to everyone in the chain except the people who create the products.

The American Federation of Radio and Television Artists, the American Federation of Musicians, the Communication Workers of America, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees, the International Brotherhood of Electrical Workers, the Nashville Songwriters Association International, the Screen Actors Guild and the  Songwriters Guild of America—as well as the AFL-CIO—all support Protect IP because at its core the bill is about saving American jobs.

How the New York Times and the Los Angeles Times could ignore this broad support of American workers is hard to explain. The New York Times and the Los Angeles Times got the story about half right, but by underreporting the facts they allow themselves
to be used by the Amen Chorus that has the story all wrong.

Working people know what time it is—it’s well passed time that the U.S. government upped the ante on foreign pirates stealing American jobs.

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