Google (s goog) cites everything from Mad Men to minority rights in a fresh attempt to bolster its claim that the scanning of millions of books qualifies as a "fair use" under copyright law. The arguments, set out in court filings submitted on Friday, come as Google's long-running dispute with the Authors Guild heads toward an end game.
According to Google, its massive book scanning project is fair use because the scanning has delivered many public benefits without harming authors.
And, oh, by the way—
This is a Google search from today for the term “buy oxycontin online no prescription”. As you will see, top of the search results are “cheapoxycontin.org” (registered in the Ukraine) and “floridapillmill.com” (registered in China). Repeat after me, Google is full of bull.
Oh, and don’t worry–the Fat Cat Signal will not be lit for this one.
Not to mention paid Google ads for mail order brides:
As Google brings its snow cannon to bear on the European Commission’s antitrust investigation, a couple of suggestions for meaningful change that would increase competition in the market. (These are also appropriate suggestions for US regulators.)
Sale of YouTube: Google should be forced to sell YouTube for several reasons.
1. Google has subsidized YouTube from the day it was acquired and the company could never stand on its own.
2. Google’s subsidy has only extended to YouTube’s overhead costs and not content acquisition costs which it gets for free (by taking) or for a share of revenues that it has refused to have audited. YouTube has perfected the “notice and shakedown” business model as a way of using the threat of Google’s vast litigation budget to keep smaller players from challenging YouTube and from imposing the “forced monetization” on artists and other rights holders.
3. Google subsidizes YouTube from its monopoly rents derived from search and advertising, thus extending its monopoly from the search vertical to the online advertising vertical to the online video vertical (including video search), and now to the cable television vertical with Google Fiber in which YouTube will play a leading role.
4. YouTube already has extensive clips, sometimes entire shows, from many of the cable channels that are not included in the Google Fiber launch (e.g., CNN, ESPN, AMC). These clips will now be delivered straight to the home. Just like the old Napster drove broadband penetration, Google is no doubt planning on its (nonunion) YouTube affiliate subsidy helping to drive penetration of its Google Fiber cable television. And no one will be surprised if Google Fiber is also being subsidized from Google’s monopoly rents from search, advertising, video search and YouTube–a classic example of cross-subsidies.
5. Got an iPhone? You very likely have a YouTube app that came with your phone. If you can figure out how to delete that app, please let me know. So the cross-subsidy issue extends to mobile as well.
6. Mr. Almunia may also choose to focus on how YouTube appears in Google’s search results. Just like the litany of other Google products that it mysteriously seems to favor–and in at least one instance acknowledged it favored–YouTube is no different. Try searching for 10 current hit songs on Google–especially Anglo-American songs. I will lay you better than even odds that the only video search results that appear on the first page will be from YouTube (or Vevo, which is essentially dependent on YouTube).
How likely is that to happen all by itself? Senators Blumenthal and Franken summed it up at the recent U.S. Senate Antitrust Subcommittee hearing:
Senator Richard Blumenthal from Connecticut [told Google's Eric Schmidt:] “You run the racetrack, own the racetrack, you didn’t have horses for a while but now you do and your horses seem to be winning.” To which his colleague from Minnesota, Al Franken, joked: “Google might be doping the horses.”
When you consider that a senior Google executive acknowledges intentionally hardwiring Google products ahead of their competitors in search results, it should come as no surprise that Google would hardwire YouTube in Google search results. There are also a number of other techniques they could be using under the hood to slow down competitors in search to favor both the Google service and Google’s advertising sales.
So you can see that when it comes to YouTube, there are tremendous competitive pressures at work. You have to ask why? What is so important about capturing the online video vertical with YouTube, a company that has routinely lost what must be closing in on a billion dollars (not to mention the legal fees defending the massive YouTube class action and lawsuit brought by Viacom in which Google recently lost an important appeal).
So why is YouTube worth all this risk? There must be an answer–I think it’s because the “video” vertical that Google is really after is replacing broadcast television by means of what we now know will be Google Fiber delivered straight to the home. That video might be worth the risk. (Don’t forget to ask about any undisclosed product placements from the shadowy Makers Studios, too.)
It Doesn’t Matter What You Call It
It is important to understand that the fact that YouTube is a stand alone subsidiary does not change the fact that it is 100% owned and subsidized by Google and that Google is using it to drive its thirst for dominance to many other verticals.
I think that the course of action is very simple–order Google to divest itself of YouTube. Google owes a special duty not to manipulate or distort the market because of Google’s dominance in web search. They know this. I would argue that you would struggle to find a clearer example of the intentional distortion and manipulation of search to favor its subsidized affiliate than YouTube.
These subsidies have created signifciant barriers to entry for any competitor in the online video space which has severe negative effects on entrants into the video space. Indeed, in order for music publishers to participate in YouTube’s forced monetization they must sign a covenant not to sue–which publishers would likely only sign with YouTube because of YouTube’s manipulated and subsidized dominance in the online video market and fear of Google’s well known bullying tactics in litigation–including trying to force authors to sue Google individually and not through their union and predeliction for union-busting rhetoric.
As the self-described “biggest kingmaker on Earth”, there is really only one thing that Mr. Almunia can do to remedy the severe distortions in the market resulting from YouTube. Don’t let them get away with just chaning a name or two.
Mr. Almunia’s best remedy is to take away Google’s ability to abuse its market position by forcing the sale of YouTube to an unrelated third party who will run it without the distortions of Google’s subsidy, search manipulaiton, and will stop bullying the very content owners on whom the service depends for its success in mobile and cable. This forced sale would balance the forced monetization of content on YouTube and could help to repair the damage to competition that Google has wrought through what appears to be a classic case of patently illegal cross-subsidization.
How to Pay Fines
While it is public record, commentators on Google rarely mention the 10:1 voting advantage that Google insiders have over regular stockholders. That means that Eric Schmidt, Larry Page, Sergei Brin all have 10 votes per share to every one vote per share by non-insiders.
Why is this important? Take the Google no-indictment agreement with the U.S. Department of Justice under which Google paid a $500,000,000 fine to the United States. Google paid the fine to avoid being indicted after a years-long grand jury investigation under which it produced millions of documents. The U.S. Attorney prosecuting the case told the Wall Street Journal that Google’s involvement went to the highest levels including Larry Page.
Meaning that the senior management team at Google must have been operating outside the scope of their authority, an idea that is supported by the Wall Street Journal’s later reporting. Yet instead of the management team paying the fine from their own vast wealth (or even a portion of the fine), it appears that Google paid the fine from its general accounts–that is, with the stockholders money.
That is–the insiders with the 10:1 votes used the company’s money to buy their way out of an indictment.
So another piece of unsolicited advice to Mr. Almunia. If you are going to fine Google for the bad behavior of its executive team, take care about how Google pays those fines. I recently heard that some of the banks involved in the LIBOR scandal are considering taking the fines out of the bank’s bonus pool. That would be an excellent idea in Google’s case.
All Google employees should bear the cost of the executive team’s bad behavior whether it’s indiscriminately promoting the sale of drugs (to kids?) or manipulating search results.
Fat Cat Signal Alert: Behind Revolving Door Number 3, New Improved Astroturf, Now With Even More Google Lobbyists
By last count, Google has way more than two lobbyists or consultants per member of Congress. So what does Google need in addition to Net Coalition, the CCIA, Public Knowledge, the Electronic Frontier Foundation and millions upon millions in registered lobbyists? According to reports:
A new trade group representing the interests of Internet companies is set to launch on September 19, with the politically experienced Michael Beckerman as its inaugural president and CEO.
Google, Facebook, Amazon and eBay are reportedly among the founding members of the Internet Association, as the organization is named.
It intends to be “the unified voice of the Internet economy, representing the interests of America’s leading Internet companies and their global community of users” by taking advocacy positions on public policy issues. Its stated goal is to “strengthen and protect an open, innovative and free Internet.”
That mission statement makes it clear that the Internet Association wants to ensure legislators are better informed before they work on another bill like the Stop Online Piracy Act or the Protect IP Act, bills that had ramifications beyond what most politicians understood.
Beckerman formerly served as House Energy and Commerce Committee deputy staff director and has a background in telecom and Internet policy.
He issued the following statement: “The Internet isn’t just Silicon Valley anymore, the Internet has moved to Main Street. Our top priority is to ensure that elected leaders in Washington understand the profound impacts of the Internet and Internet companies on jobs, economic growth and freedom.”
Ah, yes. Main Street. That would be the place that the shops are where Amazon sends its users to sample goods they then buy from Amazon without paying local sales tax and without Amazon bearing the overhead of maintaining a show room. That Main Street? Where the artists live who have been savaged by one of the biggest income transfers of all time? That Main Street?
And who is this Michael Beckerman? He “has a long record of Internet policy experience, most recently serving as Deputy Staff Director to the House Energy and Commerce Committee….”
So light up the Fat Cat Signal, yet more million dollar lobbyists are representing Internet “users” again.
Cashing in, in other words. Don’t let the revolving door hit you on the way out.
The NonMaterial Android in the Henhouse: Can the EC Trust Google to Actually Implement a Settlement?
Rumor has it that the antitrust chief for the European Union is about to reach a settlement with Google for a variety of horribles. That’s the good news. There is bad news, but it’s unclear who the bad news is for: Google is not treating its problems with the EU as what’s called “material” in the world of public companies. How do we know this? Because in Google’s most recent filing with the Securities and Exchange Commission (a Form 10Q) Google did not tell its stockholders that its potential settlement was an important financial event. Not only did Google not disclose the settlement as “material,” it also did not reserve any liability fund for paying fines or settlement costs. So the Fat Cat Signal is not getting lit up.
So what does that mean? Let’s compare it to the last major legal hurdle that Google couldn’t blow past–the $500,000,000 fine it paid to the US government for promoting the sale of illegal drugs in violation of the Controlled Substances Act. That was a very similar situation. The investigation–in that case a grand jury investigating crimes–went on for years. Google produced 4.2 million documents. But if you were a Google stockholder relying on Google’s public disclosure, you would never know it happened. Then mysteriously Google reserved $500,000,000 all in one quarter.
Here’s the relevant language from Google’s current 10Q:
On June 23, 2011, we received a Civil Investigative Demand (CID) from the U.S. Federal Trade Commission’s (FTC) Bureau of Competition and a subpoena from FTC’s Bureau of Consumer Protection relating to a review by the FTC of our business practices, including search and advertising. State attorneys general from the states of Texas, Ohio, and Mississippi have issued similar CIDs. We are cooperating with the FTC and the state attorneys general and are responding to their information requests.
The European Commission’s (EC) Directorate General for Competition has also opened an investigation into various antitrust related complaints against us. On February 10, 2010, we received notification from the EC about three antitrust complaints filed by Ciao, Ejustice, and Foundem, respectively. On November 30, 2010, the EC formally opened proceedings against us. Since November 2010, 1plusV, parent company of Ejustice, and VfT, an association of business listings providers in Germany, have filed similar complaints against us. On March 31, 2011, Microsoft Corporation submitted a similar complaint to the EC against us. On the same day, the EC notified us of additional complaints filed by Elfvoetbal, Hotmaps, Interactive Lab, and nnpt.it, and on August 30, 2011 of a complaint by dealdujour.pro. In addition, in December 2011, the Spanish Association of Daily Newspaper Publishers also submitted a complaint to the EC against us. In January 2012, Twenga brought a complaint against us and, in February 2012, the German newspaper associations, Bundesverband Deutscher Zeitungsverleger (BDZV) and Verband Deutscher Zeitschriftenverleger (VDZ), also brought a complaint against us with the EC. In March and April of 2012, the EC asked us to comment on Expedia’s, Tripadvisor’s, Odigeo’s and Streetmap’s complaints against us. We believe we have adequately responded to all of the allegations made against us. We are cooperating with the EC and responding to its information requests.
We are also regularly subject to claims, suits, government investigations, and other proceedings involving competition and antitrust (such as the pending investigations by the FTC and the EC described above), intellectual property, privacy, tax, labor and employment, commercial disputes, content generated by our users, goods and services offered by advertisers or publishers using our platforms, personal injury and other matters. Such claims, suits, government investigations, and other proceedings could result in fines, civil or criminal penalties, or other adverse consequences.
Certain of our outstanding legal matters include speculative claims for substantial or indeterminate amounts of damages. We record a liability when we believe that it is both probable that a loss has been incurred, and the amount can be reasonably estimated. We evaluate, on a monthly basis, developments in our legal matters that could affect the amount of liability that has been previously accrued, and make adjustments as appropriate. Significant judgment is required to determine both likelihood of there being and the estimated amount of a loss related to such matters.
With respect to our outstanding legal matters, based on our current knowledge, we believe that the amount or range of reasonably possible loss will not, either individually or in the aggregate, have a material adverse effect on our business, consolidated financial position, results of operations, or cash flows. However, the outcome of such legal matters is inherently unpredictable and subject to significant uncertainties.
So which is it? Does anyone really think that a major antitrust settlement with the European Union will not have a “material adverse effect on [their] business”? Using the $500,000,000 illegal drug fine as a benchmark, can we conclude that Google believes that a settlement will result in a cost of less than half a billion dollars?
But there is another possible explanation: Given Google’s recent history with government regulators, is the EU settlement non-material because Google has no intention of complying with the terms? Or complying enough to have a long running dispute that never quite boils over into a regulatory hammer? That is–the typical Google “make me” delaying action?
How far back do you want to go for evidence of the total disregard that Google has for regulators? Even after paying a $500,000,000 fine to keep their executive team from being indicted, you could still find ads and Autocomplete for “buy oxycontin online no prescription.”
And then there’s the human trafficking ads, obstructing the FCC’s investigation into the Street View spying and data slurping, Google Buzz, various union-busting efforts, the reopening of the ICO investigation and violating the FTC consent decree.
Let me sum it up for Mr. Almunia: They obfuscate, they shade, they equivocate and they pretty much do as they damn well please.
And there is something else, perhaps a simpler explanation.
At the time that Google bought their way out of a drug indictment, the prescient Professor Eric Goldman of the Santa Clara School of Law, was quoted in the New York Times as follows:
“Web companies can be held liable for advertising on their sites that breaks federal criminal law, and Google and other search engines have faced similar issues over ads for illegal online gambling sites [see, e.g., "Poker Money and the Ethics Professor"]. Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said the latest investigation raised questions about Google’s dependence on such sources. ’How much of Google’s overall revenues are tied to product lines that are questionable?’ he said. ‘For investors, I think they just got a little bit of a jolt [after Google reserved $500,000,000 to pay its forfeiture in the drugs case] that maybe Google’s profits are due to things they can’t ultimately stand behind.’” (emphasis mine)
This is how the Google stock behaved around the announcement of that $500,000,000 fine on April 15 last year:
So which do you think will have a greater impact on the stock price, the $500,000,000 fine that Google managed to keep from being reported too widely (and got the DOJ to apologize for), or the antitrust settlement with the EU that the entire financial world knows about? I tend to agree with Professor Goldman that “maybe Google’s profits are due to things they can’t ultimately stand behind.”
Except I don’t think there’s any “maybe” about it.
As The Trichordist noted in the July 16th post, the White House Intellectual Property Enforcement Coordinator Victoria Espinel has issued a call to the public to file comments with her office about the US intellectual property laws. If you care about artist rights, this is a good time to tell Victoria Espinel what you think. You can comment on anything, but she is probably looking for specific comments about how good a job you think the US government is doing in enforcing our IP laws and protecting artist rights and any ideas you have about how the government could be doing more.
You should be aware that opponents of artist rights will seize upon this kind of public comment period to flood Ms. Espinel’s office with copyleft and radical anti-artist commentary. You can bet that they will do it and they will do it from all over the world. This is so that they can point to the quantity of their comments and try to wrap themselves in some kind of mandate in dealing with the IPEC. Or more likely, trying to remove that job from the Federal government altogether–I’m sure that is their true goal as Ms. Espinel has done more to protect artist rights by enforcing the laws than anyone in the last 20 years. And we can’t have that.
Ms. Espinel’s job is to coordinate the resources of the federal law enforcement establishment on enforcing the laws of the United States against those who would steal our intellectual property at all levels–from your song to the avionics for spacecraft. This is a very hard job that has been allocated very few direct resources and we are lucky to have her.
When Ms. Espinel first announced the comment period it was to end on July 25 (today). The deadline has now been extended to August 10.
You don’t need to write a letter unless you really want to. There is a webform for your comments available at this direct link for your comments: http://www.regulations.gov/#!submitComment;D=OMB-2012-0004-0002
Don’t be shy. Ms. Espinel wants to know what you think.
Here are quotes from the Federal Register notice:
The Federal Government is starting the process of developing a new Joint Strategic Plan on Intellectual Property Enforcement. By committing to common goals, the U.S. Government will more effectively and efficiently combat intellectual property infringement. In this request for comments, the U.S. Government, through the Office of the U.S. Intellectual Property Enforcement Coordinator (“IPEC”), invites public input and participation in shaping the Administration’s intellectual property enforcement strategy.
The Office of the U.S. Intellectual Property Enforcement Coordinator was established within the Executive Office of the President pursuant to the Prioritizing Resources and Organization for Intellectual Property Act of 2008, Public Law 110-403 (Oct. 13, 2008) (the “PRO IP Act”). Pursuant to the PRO IP Act, IPEC is charged with developing the Administration’s Joint Strategic Plan on Intellectual Property Enforcement for submission to Congress every three years. In carrying out this mandate, IPEC chairs an interagency intellectual property enforcement advisory committee comprised of Federal departmental and agency heads whose respective departments and agencies are involved in intellectual property enforcement.
One of the funniest anecdotes of Tweets about the copyleft’s “break the Internet” mantra is attributed to Ana Marie Cox (the brilliant founder of the Wonkette blog) who summed it all up:
“It is starting to look like my ‘but I can’t file a piece today, the INTERNET IS BROKEN’ excuse will work afterall. #sopa” — The Guardian‘s Ana Marie Cox.
That Tweet crystallizes the inspired writing of Ms. Cox–one part Dorothy Parker, one part H.L. Mencken. She now works at The Guardian, the U.K. publication where the well known Internet huckster Jimbo Wales–the gadfly without borders–recently published his latest wailing regarding the extradition of the operator of TVShack (dot something or other depending on which part of his bad advice he’s listening to that day). Jimbo’s wailing in the Guardian and elsewhere on the extradition subject is yet another piece responding to the Fat Cat Signal.
You can always detect Fat Cat-ism because it blatantly avoids ever acknowledging that it’s artists, authors, actors and journalists–not just the loathsome ”Hollywood moguls”–who are getting ripped off by Big Tech and the merry band of useful innocents who feed them. Oh, sorry–the People of the Internet standing up against Censorship led by their elected representative, Jimbo Wales. Actually–strike that “elected” and replace it with “self appointed”. And given that 13% of Wikipedia editors are under age 17, you might be able to add “child labor magnate” to that noun-epithet formula. You can just hear Gary Hart saying, “He can help you, son, ’cause you’re too young to vote.”
It appears that Ms. Cox the Guardian journalist and Jimbo know each other well enough to get their pic snapped–you’ll recognize this photo as the source for Ms. Cox’s page on Wikipedia. Maybe one of the legion of unpaid 17 year olds thought that it would be charming to crop Ms. Cox from the couple’s picture where they did for a couple of reasons.
But would the Wikipedia editors have used this picture this way without the photogenic boss man’s consent? Oh, right. It’s leaderless. Just ask Jared Cohen.
In our ongoing series the Wall of Shame showing advertising by major brands appearing on sites hosting unlicensed music and illegally exploiting the rights of artists, this one really spoke to us.
BMW advertising appears on the site mp3crank for the unlicensed album download of the critically acclaimed "Drive" Soundtrack. Given that BMW is the maker of "The Ultimate Driving Machine" this really make us wonder about the sophistication of context based advertising.
Has anyone ever said to you, “What I really need is a good way to use other people’s works without paying them?” Or, “What would really save the [music/photography/movie/news] business is a good orphan works law.”
I thought not.
So how in the world did this orphan works thing get started?
The Origins of the Orphan Works Myth
“Orphan works” are by most of the common definitions works of copyright for which the owner cannot be found by someone wishing to use the work after a “reasonably diligent search”. This use may be commercial or noncommercial, and the “someone” can be you or it can be Google.
Remember that–it can be Google. (Google’s then-attorney, Berkman Center affiliate, Lessig acolyte, and all round digital sophisticate Alexander MacGilivrey made that clear in his testimony at the Copyright Office orphan works roundtable: “I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”)
As you can see already, there is a moral hazard present if you allow the person who would like to use the work to make the determination of how hard they have looked for the owner and whether the owner cannot be found. You’ll notice that the concept of “search” figures prominently in any discussion of orphan works. (Guess who thinks that they do search better than anyone else?)
But what you should take away from this is a large point–orphan works is one of a series of attacks on copyright designed to take away the rights of artists to control their own works. Not surprisingly, the result of the orphan works legislation is to shift the balance in favor of the big tech companies that want to exploit these works in the millions. These are the companies–we now see being mostly Google–that have the seemingly endless litigation and lobbying budgets to intimidate artists into giving up and accepting that ennui of learned helplessness we recognize as the most common state of the creative community in the Age of Theft.
The concept probably started with–wait for it–Lawrence Lessig–in his 2003 New York Times op ed “Protecting Mickey Mouse at Art’s Expense“. (This from someone with little to do with either Mickey Mouse, art or protecting either.) This piece was published in Lessig’s (still evolving) fit of pique at his humiliating loss in the Eldred case before the U.S. Supreme Court arguing against the Copyright Term Extension Act (which he recently described to some high school students as a “stupid” decision). And that op-ed is a good example of the oppressive regime of registration and formalities that Lessig and Google (benefactor of many Lessig causes) wish to impose on artists, especially American artists:
Patent holders have to pay a fee every few years to maintain their patents. The same principle could be applied to copyright. Imagine requiring copyright holders to pay a tax 50 years after a work was published. The tax should be very small, maybe $50 a work. And when the tax was paid, the government would record that fact, including the name of the copyright holder paying the tax. That way artists and others who want to use a work would continue to have an easy way to identify the current copyright owner. But if a copyright owner fails to pay the tax for three years in a row, then the work will enter the public domain. Anyone would then be free to build upon and cultivate that part of our culture as he sees fit.
It is important to know that the world has, for a very long time, agreed by treaty that governments could not impose “formalities” on copyrights, such as registration. (The United States has not completely abandoned the registration formality, but it is much more limited since the US signed up to the Berne Convention in 1989, probably the most important international copyright treaty.)
Photographers are a good example of why formalities don’t work as a condition of enjoying copyright. If you have ever been to a sporting event or a modeling shoot, you will know that photographers will fire off many, many photographs, sometimes in a matter of minutes. Each of those photographs is a separate copyright. Requiring the photographer to register each copyright would not only be extraordinarily burdensome to the creator, it would also be burdensome on the government agency required to maintain these works. (The US Register of Copyrights was very concerned about the ability of the Copyright Office to handle these works and the cost of registration being significantly under the long-term cost to taxpayers of maintaining these registrations.)
Lessig starts with what he and his acolytes know best–patents. Those would be the rights most of them never get to own themselves but are assigned to their employers under an employee inventions agreement signed on their first day of work. Having a patent issued is a laborious and secretive process, an expensive process that bears little resemblance to the creation of a work of copyright, one of the engines of free expression.
Comparing copyrights to patents is so inapt it would be silly if it were not for the fact that so many bought into that one giant leap. MTP readers will recognize the rhetorical leap when they see it, but others do not.
Lessig then suggests that creators pay a $50 “tax”, also known as a registration fee, to preserve their rights “50 years after a work is published.” Interestingly, a few years later Lessig remembers his op-ed as proposing a $1 registration fee–which it clearly did not (at 11:38). The unacknowledged shift from $50 to $1 no doubt was the result of complaints from artists, but it definitely does not take into account the complaints from the Copyright Office.
So Lessig teaches that if copyright were patent, which it is not, then artists could be required to register, which they cannot be required to do by treaty, and pay either $50 in 2003, which artists could not afford to do, or $1 in 2007, which the Copyright Office could not afford to do, and otherwise–and here’s the punchline–the works pass into the public domain “long after they have been forgotten by the commercial world”. In fact, Representative Zoe Lofgren introduced a bill called the “Public Domain Enhancement Act” (HR 2408 in the 1st Session of the 109th Congress). You remember Rep. Lofgren, right? She is Google’s Congressperson and most recently distinguished herself by calling out the Register of Copyrights for meeting with copyright owners, shocking though that thought might be. Yes, in a scene reminiscent of a certain late Senator from Wisconsin, Ms. Lofgren shamelessly demanded to know the names of copyright owners participating in meetings with the Register.
Yes, if 6 were 9, then things would be different.
Lessig’s op-ed may not have been the first time this concept got a name, but it is probably as good a starting place as any.
So you can see that the point of orphan works is to create a category of works that automatically pass into the public domain before the term of copyright would otherwise expire–which was the purpose of Lessig’s case in Eldred. Doing indirectly through a trumped up “problem” that which he failed to do directly before the Supreme Court.
How Orphan Works Shortens the Copyright Term Further
When you understand orphan works as another mechanism to define away the copyright term by imposing financial roadblocks or burdensome formalities, the underlying purpose of these proposed statutes become clear. When you understand that it is likely that international treaties prohibit these burdens on artists and other copyright owners the true sweep of the “problem” also becomes clear.
An argument can be made that what opponents of copyright–especially Google–are doing is trying to pick away at major treaty partners in an effort to cause the collapse of the entire treaty system. While this may have seemed like paranoid rambling before the last year or two, Google’s actions starting at least with the Google Books case should bring its ultimate goals into sharp focus. Google will trade on its reputation as a technology company, and particularly a search company, to try to control the “reasonably diligent search” component of orphan works as the black box from which only works held by the richest copyright owners–particularly US-based copyright owners–can emerge.
This is a lot of agina to go through because a petulant Lawrence Lessig was embarrassed by an easily predictable loss in the Supreme Court.
Unlike Lessig’s ”Free Mickey” op-ed, the concept of “orphan works” as expressed in the Copyright Office 2006 report and subsequent legislation sweeps up any work that has not achieved commercial success as a practical matter. If the copyright owner cannot be found after a “reasonably diligent search”, then the copyright owner loses. This could be a work created today, yesterday, last year or 50 years ago. Even Lessig criticized the abrupt effects of the orphan works proposals as too burdensome on users, but was happy to impose a registration burden on at least American copyright owner and the Copyright Office.
And of course, while he thought the orphan works legislation was unfair, what he thought would be fair was to cut the copyright term to 14 years or 5 years for pre-1978 works. 5 years because if the work is that old, then the copyright would not be commercially relevant any longer. This is another example of his rhetoric–he can say he opposes laws that are unfair to copyright owners. What he leaves out (and what you wouldn’t know unless you read up on him) is that his solution to the laws is to cut the copyright term to either 14 or 5 years because that’s fair.
Lessig, by definition, ignores the 35 year recapture right of authors that is now starting to come online. Lessig also would have only US works be subject to this ”simple and efficient registry” run by private industry, such as the highly efficient domain name system. (Meaning ICANN–whose board chairman in 2007 when Lessig had this idea was Vint Cerf who was on his way to his current employment at Google as the company’s “Chief Internet Evangelist” and Andrew McLaughlin pen pal.)
Once again, Lessig glosses over the complexity of information required, cover recordings vs. original recordings. This is obviously a man who has never tried to build such a registry for sound recordings. I have. He’s full of it. But then he wants to screw just the Americans, so he thinks that would be consistent with treaty obligations. This did not work out so well with Google Books.
Lessig also wanted the United States to encourage British copyright owners and then other treaty partners to adopt the same rules applicable to Americans, and kind of roll out the screwing on a country by country basis. So we should not be surprised that Google is currently applying a triple whip pressure to the current copyright landgrab in the UK Parliament.
The Solution that Became the Problem
The Google lobbyists and surrogates have been effective in some quarters in creating a narrative around some nonexistant vast treasure trove of works for which no owner can be found and which need to be “liberated” so that society can build upon them without compensating the creator–for example. manipulating them digitally so the original owner would have a hard time recognizing their own work if they happened to stumble upon it.
Both the Copyright Office proposal and Lessig’s absurd 14/5 year copyright term ignore the author’s right to recapture their works after 35 years in the United States, one of the few recent changes to copyright law that is actually working to the artist’s advantage.
So the solution in search of a problem has itself become a problem which is ever more troubling in a world where Members of Congress and Parliament seem more inclined to listen to an Internet mob (which must surely be composed in part of sock puppets) than to living, breathing artists. So far the artists have won.
And we can’t have that, now can we?
Google’s UK Landgrab
In case you missed it, Google did it the old fashioned way–get a trumped up study to justify doing what you wanted to do anyway, preferably with taxpayer dollars and even more preferably conducted by the government. Google has managed to convince the UK government–partly through agency capture and partly through the relationship between Rachel Marjorie Joan Whetstone Google’s global head of communications and public policy and her husband Steve Hilton, both close friends and advisors to current UK Prime Minister David Cameron. (Hilton is credited with such policy ideas as scrapping maternity leave for Britons.) Somehow, Cameron was persuaded to conduct and pay for the “Hargreaves Report” also known popularly in the UK press as the “Google Report.” We have written about the Google Report at some length in an attempt to keep Americans apprised of the risk of letting this government-capture continue unchallenged.
Now the chickens are coming home to roost and they are starting with “orphan works”–which have now graduated to the overly dramatic “hostage works” in some circles such as the ORG. According to The Register:
Why the rush?
Last week the government proposed a collectivisation programme to sweep away individual copyrights across any class of work, to allow “broad commercial use” of those works.
Such measures are illegal under the Berne Convention, legal experts tell us, and may result in costly litigation lasting years. The phrase “orphan work” can refer to any copyright artifact where the ownership information is missing, which in practice, means every photograph or image on the internet.
So Britain’s copyright radicals at the Intellectual Property Office – formerly known the Patent Office but reborn as a hotbed of ideological radicalism in recent years – appear to be in a desperate hurry. Why would this be?
Well, a draft European Directive on orphan works is in the pipeline. While this has been fiercely criticised by creators’ rights groups, it offers the individual creator much more protection than the scheme favoured by the UK.
For example, the UK would allow broad commercial use of orphans – the European Commission specifically excludes it. Crucially, however, the European legislation would leave any member state’s existing collective licensing programme intact. This would appear to be a very strong motive for the IPO to ram through what it can, while it can.
Legal experts tell is that even if the UK’s go-it-alone collective licensing becomes law, it would have to comply with European directives, and the government’s doesn’t.
Who is going to benefit from this?
Another reason somebody may want to rush through legislation now is because it tilts the playing field towards large content users and processors – hello, Google – and then locks in the bias through legislation.
Remember Google’s testimony at the Copyright Office orphan works roundtable?
“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”
It’s not like these people don’t tell you their plans, but artists consistently underestimate the global nature of the attack and the fact that should be clear as day that Google and its surrogates intend to crush the global copyright system and destroy artists. This all will have a familiar ring to those who watched US government contractor Google marshal members of the National Security Agency to support Google’s position against rogue sites legislation.
And when Google starts using all those same government levers to steal your privacy, don’t say you weren’t warned.
This is a great video that was made at the time of Google’s last big effort to jam through an orphan works regime. All artists should be aware of these issues and the way that companies like Google intends to twist the law to their benefit. Because Google has an extraordiary influence in the UK due to the personal relationship between Prime Minster David Cameron and Rachel Whetstone, a senior Google executive, a new version of the orphan works bill is finding its way through the UK Parliament right now. See “UK’s Brazen Copyright Landgrab Sneaked Into Enterprise Bill“.
Why is this important in the US and the rest of the world? Because if Google gets it past the UK Parliament–leave aside that there are significant treaty issues that Google will tie up in litigation for years–Google will start orphaning works through the UK on a grand scale just as they have done with Google Books while that case has been pending. Britain will become, essentially, a Temporary Autonomous Zone or “pirate utopia” for orphan works. And it won’t just be Google.
Why is this not a paranoid prediction? Current Twitter General Counsel, Google’s then-attorney, Berkman Center affiliate, Lessig acolyte, and all round digital sophisticate Alexander MacGilivrey made Google’s intentions on orphan works clear in his 2005 testimony at the Copyright Office the last time that orphan works got traction in the US:
“I would encourage the Copyright Office to consider not just the very, very small scale, the one user who wants to make use of the work, but also the very, very large scale and talking in the millions of works.”
That statement was made on July 22, 2005—almost 4 months to the day before the Library of Congress announced a $3 million gift from Google for the Librarian’s World Digital Library pet project–and the US Copyright Office is part of the Library of Congress.