For their next ruse, the Feds asked Whitaker to advertise an even dicier site—one selling RU-486, better known as the abortion pill, which is normally taken under close supervision of a doctor. Like the earlier site, NextDayProgram.org was designed to be as explicit as possible. “We understand accidents happen,” the front page copy read. “When they do we don’t ask why, we’re only here to help.” In another section, the site promised to fill prescriptions over the phone, “without the embarrassment of going to a pharmacy.”

To prove that Google’s behavior was widespread, Whitaker went through a different rep—one that the country manager of Google Mexico helped connect him with and who showed no more resistance to Whitaker’s schemes. Despite the site’s open promise to sell RU-486, it passed Google’s policy review on its first try, without any objections. Working with his rep, Whitaker spent $25,000 on ads against a series of explicit search terms: “abortion,” “abortion services,” “medical abortion,” and “RU-486.” None of the ad buys triggered any red flags from Google.

Whitaker kept designing new sites, working with different Google account reps to advertise ever sketchier online businesses. TaoTeWellness.com sold psychotropic drugs. “TaoTeWellness is a provider of the medications listed on this site,” the homepage read, above photos of Valium and Xanax. “There are no embarrassing doctor’s visits involved.” It was hard to be more up front than that, but Google’s reps in China didn’t just approve the site. They also added more than 100 drug names as search keywords, without even asking Whitaker.

The multi-year and multi-agency sting operation resulted in Google signing a nonprosecution agreement with the US Department of Justice to avoid being tried for crimes.  This would be the one that Senator Cornyn questioned Eric Schmidt about at the Senate Antitrust Subcommittee hearing on Google.  When Eric Schmidt invoked his Constitutional protection from self incrimination.  No, I’m not talking about Sam Giancana.

Eric Schmidt took the 5th.

Now why would he do that?  Aside from the fact that he probably knew no reporter would write about it without asking permission of Google and if they did, the Google PR machine would have a chance to tamp it down, probably in the form of Jill Hazelbaker (head of corporate communications at Google). Nothing to see here, move along.

One reason is because the Google board and a number of senior executives are being sued by Google stockholders for, among other things, breach of fiduciary duty.  This is partly because Google knowingly overstated its earnings from illegal stuff.  And we’re not even talking brand sponsored piracy or human trafficking here, but it’s essentially the same idea.

So joining in these very serious derivative lawsuits is the Google stockholder the Orlando Police Pension Fund, who one can easily imagine take a very dim view of their investment in Google being used for ostensibly criminal purposes.  And these are guys who know a RICO when they see one.

As usual, Google has reacted with an obsession for secrecy reminiscent of Richard Nixon.  One interesting passage from the complaint:

Plaintiff made a demand on Google’s board of directors (the “Board”) to, among other things, investigate and bring an action against those senior executives responsible for Google violating the Drug Marketing Statutes which caused, in turn, Google’s forfeiture of $500 million to the U.S. Government.

The Board constituted a committee (the “Committee”) which produced a 149-page report (the “Committee Report”) which it refused to make public but, nonetheless, served as the basis for a six page letter (the “Demand Refusal Letter”) refusing to act on the demands made on the Board. As alleged below in greater detail, the Board has improperly refused and continues to refuse demand and, therefore, Plaintiff is filing this action in order to seek redress on behalf of the Company.

So the Google board of directors used the stockholders money to prepare a report about the stockholder’s lawsuit, but the board won’t share that report with the stockholders whose monies they used to prepare it?

Why so secret, kitty cat?

After all, “if you have something you don’t want anyone to know, maybe you shouldn’t be doing it“

Great news for Tumblr users–the eponymous Mr. Dave Karp just sold your content for $1.1 billion!  In cash!  And of course, he’s sharing that money with you, right?

No, he’s not.  But then again, record companies, movie studios, newspapers and music publishers don’t share the proceeds with their artists, journalists, songwriters or actors, when they’re sold either.  Of course…that’s not an apt comparison because all those companies paid for the “content” they’re selling.  As Francis Cianfrocca noted adroitly on Coffee and Markets, much of the value of companies like Tumblr is based on the appropriation of user content (and I think you could add YouTube to that list).

I really enjoyed the part of the Copyright Principles Project that dealt with artist rights issue of compensating users when the product of their free labor is sold for big bucks…no wait, that wasn’t covered.

So meet the new boss…worse than the old boss.  Way, way worse.  It’s all about “loser generated content.”

This is what Lessig calls the “hybrid economy.”  Sharing cultures, right?  Very collaborative.

Now bend over and “collaborate.”

Google is–of course–very interested in orphan works.  They have a deep and abiding interest in the subject.  For example, current Twitter General Counsel, 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:

“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.

In 2008, the U.S. Small Business Administration hosted a roundtable in New York on the then-pending orphan works legislation.  The roundtable participants represented independent creators that were not getting heard over the massive lobbying muscle that was trying to jam the bill through Congress.  The Copyright Office sent a representative named Oliver Metzger who, we are informed, made it clear to some of the roundtable participants that what they did or said would have no effect on stopping the legislation he was honchoing.

Shortly after the legislation was stopped, Mr. Metzger left the Copyright Office and joined…Google.  However, lightening doesn’t strike twice and Google’s lobbying muscle is even more massive today than it was in 2008.  (For the entire sordid tale, see the excellent article by Brad Holland of the Illustrators Partnership entitled “Trojan Horse: Orphan Works and the War on Authors” that was serialized at The Trichordist.)

Fortunately, a video was made of the SBA orphan works roundtable.  We strongly recommend that you take the time to watch the video.  It’s pretty long, but it is well worth your time if you want to understand the impact of orphan works legislation on individual creators.

Reblogged from The Trichordist:

Reblogged from The Trichordist:

Although this point of view is common to academics (who frequently seem to think that their views are superior to everyone else’s–as any law student can attest), allow this non acolyte to diverge from the path to an “A” (or other form of approval, such as a nice fresh fish so appreciated by trained seals) and express a contrary view at the risk of getting an “F”.

First off, the Copyright Principles Project is not entirely made up of people who don’t know each other and is also not entirely made up of academics.  Some corporate types are represented–just not one soul from the photography business, playwrights, visual artists, or anyone from music (serious or pop).   So why were these people selected?

Here is a slightly annotated list reflecting those with ties to Google-funded organizations (generally advisory board types) and to organizations funded by Professor Samuelson and her husband, the well-known Silicon Valley tycoon Doctor Glushko.

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law (Creative Commons [millions funded by Google]/AU is Home of Samuelson/Glushko Center)
Julie E. Cohen, Georgetown University Law Center (Public Knowledge [Funded by Google per Google Shill List])
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology (Creative Commons [millions funded by Google])
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School (Former University of Ottawa/Samuelson Glushko CIPPIC during his tenure as dean)
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law (Public Knowledge [Funded by Google per Google Shill List])
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law (Associate at Stanford CIS, millions funded by Google)
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.

Why are these affiliations important?  First, there are a bunch of corporations flat out represented on The Project.  So if you’re going to let them in, why only them?

But what is more difficult to explain is why The Project pitched Creative Commons as a commercial solution to certain “reforms” (solutions in search of a problem if you ask” me) without disclosing the long time affiliations with Creative Commons of the participants (or, to be consistent, I guess you’d have to call them the “convened” if Professor Samuelson is the “convener”).

For example, The Project’s white paper states (at p. 24 for those who are reading along):

[W]e envision a series of registries that would meet the needs of particular authorial communities and industry participants and that could compete for business from copyright owners, as has occurred with the domain name registration system. Creative Commons, for instance, could become a registry for authors of works who prefer to allow wider uses of their works, but want control over commercial distributions of them.

How would that have read if you substituted one of the corporations participating for “Creative Commons”?  Or perhaps “Google” for Creative Commons since you are talking about data manipulation, Creative Commons gets a huge contribution from Google and the mother in law of one of the Google founders is the head of the organization.

Can we agree that the “convener” and the “convened” should disclose all of their affiliations before they testify to the American people?  If they are going to pass themselves off as selfless oracles from Silicon Valley (physically or metaphorically since they all teach “high tech law” of once species or another), shouldn’t they demonstrate that it’s not business as usual, Valley style?  Or that it is?

I acknowledge that they are not term sheet popping daddies having breakfast at Buck’s, but still–it kind of smells of the kind of shilling that caused the Google Shill List to seem necessary.  And I might actually prefer the breakfast at Buck’s types on a certain level.  At least you’d know where they stand.

For the convener and the convened not to submit their conflict of interest is just a little too convenient.

The shell game (also known as Thimblerig, Three shells and a pea, the old army game) is portrayed as a gambling game, but in reality, when a wager for money is made, it is a confidence trick used to perpetrate fraud. In confidence trick slang, this swindle is referred to as a short-con because it is quick and easy to pull off.  Wikipedia definition of “thimblerig”.

“The Project” (aka “The Copyright Principles Project”) is a group–some might say a cabal–of Big Tech lawyers and law school academics that is trying to pass themselves off as representing some kind of “consensus” about “copyright reform”.

This is a typical Silicon Valley policy deceit. It brings together a number of themes in its “principles” that have been floating around academia for years, and even made it into legislation a couple times.  The Project will be center stage this week at a special hearing of the House Subcommittee on Courts, Intellectual Property and the Internet (the “IP subcommittee”) under the title “A Case Study for Consensus Building: The Copyright Principles Project.”

The relevant document for the hearing is The Project’s white paper, which we can safely assume will be passed of as the “case study” at issue.  It may be a wish list of everything Big Tech needs to profit themselves from the the massive income transfer currently occurring online.  It may be a “case study” of “groupthink” when you get an influential financier of academia in the same room as academics who have benefited from that largesse.  It may be a “case study” for a lot of things, but what it is not is a case study for consensus.  And the fact that it is being passed off as such is yet another example of the the shell game to undermine artist rights.  And the “mark” for the thimblerig in this short con is the United States Congress and the American people.

Never ascribe to malice that which is adequately explained by incompetence.

How is the con being run this time?  I expect The Project present itself as an example of how to build consensus on copyright issues that Chairman Goodlatte has correctly identified as polarized. (“See–we’ve already done built consensus.”)

“Consensus”.  The messaging that The Project wishes to convey is that The Project is representative of a wide spectrum of views on copyright–the implication of which is that the white paper and the participants in The Project should be found to be trustworthy and believable.  Therefore there is little need to look further if you are busy people without a lot of time or staff to recreate the same process.  Such as…oh, I don’t know…the House Judiciary Committee, for example.  The Project would have the Congress think, why hold hearings when we’ve done it for you?  Particularly when we are just all so…how else to say it…soooo much smarter than you!

For example, we find this statement in The Project’s white paper:

At the outset of this project, we spent a considerable amount of time discussing the scope and objective of our efforts. We considered a range of possible outputs, from a simple statement of normative principles to the formulation of a detailed blueprint for comprehensive copyright reform. Although the group was broadly representative of different viewpoints and each of us had opinions about particular strengths and weaknesses of the existing copyright system, our ability to propose a substantial and comprehensive reform of U.S. copyright law was limited, partly because we met only three times a year for three years.

“Broadly representative”?  I think not.  But let’s look at who was represented.  And remember–this lineup was the best they could do after three years.

Weaving Spiders Come Not Here

How The Project came to be “we” is important, because who “we” are not can be just as important as who the “we” is.  In this case, even more important.

Let me point out again who the “we” is by name.  It’s this “we” who is key to understanding this entire charade.  Here is the list of participants in The Project:

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law
Julie E. Cohen, Georgetown University Law Center
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.”

So we immediately notice what others (such as David Lowery in Politico) have also–there is not one creator on this list.  In fact, we see a lot of names we recognize–Christopher Sprigman, for example, is associated with the Stanford Center for Internet and Society--funded by Google and founded by Lessig.  Now there’s some “consensus” if I ever saw it.

Sprigman is also the co-author of “The Knockoff Economy” in which he sings the praises of “knockoffs” in the fashion industry–now we know why The Project included no one from that important sector of the American economy that currently is unprotected by copyright but might like to be as long as we’re, you know, “reforming” copyright.  Sprigman also writes a blog called the Knockoff Economy in which he made this prediction after President Obama’s reelection (http://www.theknockoffeconomy.com/what-do-the-election-results-mean-for-ip/):

Our guess is that although copyright isn’t really an important national political issue now, it may well become one.  And if it does, there are a couple of possibilities.  First, if the GOP’s very deep losses last night prompt the party to take a good look at its future prospects, it’s possible that smart Republicans might conclude that elections will simply not be winnable in future unless the party finds a way to capture a larger share of the youth (and non-white) vote. One way to appeal to young people would be to identify with their interest in online freedom. And this would lead to a GOP that favors narrower copyright. This might be a good strategy for the GOP not least because the party doesn’t depend much now on Hollywood, compared with the Democrats, for whom Hollywood is a large source of support. If the GOP can drive a wedge between young people and Hollywood-loving Democrats, that may be worth doing.

Fans of Beautiful Person Derek Khanna may be surprised at exactly how prescient Sprigman was in foreshadowing almost all of the political argumentation around Khanna’s sophomoric pitch.

MTP readers will remember the unfortunate and unworkable collective licensing scheme proposed by the Songwriters Association of Canada that we were critical of because it was unauditable, would not result in payments to songwriters as opposed to enriching middlemen, and would never be–and indeed never has been–supported by ISPs.  That debacle was appealing to collectivization advocate Professor Daniel Gervais.   The distinguishing feature of the SAC proposal was that payments to creators only increased as long as new money came into the proposed new collective–like Canada is lacking in existing collectives–at a faster rate than it was paid out.  In other words, payments varied directly with new ISP subscribers.  When the new money started to decrease, so did payments…sound like something else we’ve heard about?

We weren’t the only ones who took apart the SAC proposal–Canadian IP lawyer Barry Sookman did as well in this paper published in the Osgoode Hall Review of Law and Policy–to which Professor Gervais has yet to reply.  Not that he’s obligated to, but his silence is deafening to some of us.

Before he joined Vanderbilt Law School (in 2008), Professor Gervais was Acting Dean of the Common Law Section at the University of Ottawa, where he also served as Acting Dean from February 1, 2006 until July 31, 2006, and as Vice-Dean for Research from 2003 until January 2007.  This would be the University of Ottawa that was home to the  Canadian Internet Policy and Public Interest Clinic operated by one Michael Geist–or it was called CIPPIC until 2007 when “technology innovator and entrepreneur Dr. Robert Glushko and his wife, law and technology pioneer Professor Pamela Samuelson, made a large donation to CIPPIC….” and the name was changed to the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.  Given that Geist just loves to get his jingo on about Canadian solutions for Canadians, it’s odd that he’d sell the naming rights for CIPPIC to Americans.

And it may be odd that Professor Gervais comes from an institution that benefited from the largesse…sorry, consensus building…of Professor Samuelson, the “(convenor)” of The Project.

I won’t bore you with the various interconnectedness of the rest of the tech professors, Big Tech companies and the lawyers who represent them on this list, but the cozy nature of these relationships should surprise no one familiar with clubby Silicon Valley and its endless supply of money.  Or as it’s also known…”consensus.”

No Dogs Or Actors Allowed

The studied exclusion of creators in The Project leads to statements like this from The Project’s white paper:

At this level of generality, agreement is easy to reach. Disagreements tend to arise over how to implement these goals in statutory language and actual practice.

So “agreement is easy to reach”.  Notice that little sojourn into the passive voice.  Does “agreement” mean unanimous agreement?  Agreement among the tech lawyers?  Who is doing the agreeing?  And who is not?  If you have agreement about painting the dining room but no agreement on the color, how much agreement do you really have?  And if you have agreement about painting the dining room but can’t agree about whether to use a brush or the dog’s tail, is that really agreement about anything?  Unless you really, really want to make it appear that there is agreement among a group?  A group of unknown composition in this case.

But take three guesses about who could be helpful with the “actual practice” part?  Oh, maybe–an artist?

And then there is this gem regarding taking away from authors the 35 year termination right for “authors” (which in this case essentially means all creators other than employees for hire):

The termination of transfer provisions of current law were the subject of considerable discussion at [Project] meetings. We were able to reach consensus that the existing rules are too complicated and formalistic, and that some reform of them would be beneficial. But when it came to specific proposals to improve these rules, there was substantial disagreement.

There was some sentiment in favor of elimination of termination rights altogether, in part because current provisions are too complicated to be useful to most authors, and in part because termination reflects a paternalistic effort to protect authors. Others preferred to reform termination in order to create a simplified copyright reversion mechanism that would be easier for authors to actually use.

So how would The Project know whether the poor authors found the current rules “too complicated to be useful”, “paternalistic”, or whether “reform” would make the rules “easier for authors to use.”  Because I can tell you that there are an awful lot of authors who are absolutely crystal clear that they get to have their rights back after 35 years and they are finding it very, very easy to send in their notices.

How in the world could this room full of highly educated people be possessed of such an astounding arrogance that they have somehow divined what authors would and would not find useful, paternalistic or difficult to use without including an author in The Project?

Oh, right.  I forgot.

“Consensus.”

, Samuel French’s hats http://oob.samuelfrench.com/index.php/about-2/store/

]]> http://musictechpolicy.wordpress.com/2013/05/12/the-copyright-principles-project-the-arrogant-thimblerig-of-contrived-consensus/feed/ 0 editorfox No_Dogs_ 2 http://musictechpolicy.wordpress.com/2013/05/11/the-copyright-principles-project-misses-the-point-on-copyright-registration-we-have-registration-now-where-is-the-benefit/ http://musictechpolicy.wordpress.com/2013/05/11/the-copyright-principles-project-misses-the-point-on-copyright-registration-we-have-registration-now-where-is-the-benefit/#comments Sat, 11 May 2013 18:38:37 +0000 Chris Castle http://musictechpolicy.wordpress.com/?p=8028 ]]>

Google is–of course–very interested in orphan works.  They have a deep and abiding interest in the subject.  For example, current Twitter General Counsel, 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:

“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.

Next week, the House IP Subcommittee will hold a hearing with the following participants:

Jon Baumgarten, retired Proskauer Rose attorney and former General Counsel of the U.S. Copyright Office;

Laura Gasaway, Professor, University of North Carolina Law School and co-chair of the Section 108 Study Group;

Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program;;

Pam Samuelson, Professor, University of California at Berkeley Law School

Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office.

One thing should jump out at you about this group.

No creators.  No photographers, illustrators, visual artists, film makers, recording artists or songwriters.

But in its own way, this is not unusual because they will be discussing something called the “Copyright Principles Project”.  Who’s that you say?

According to the “THE COPYRIGHT PRINCIPLES PROJECT: DIRECTIONS FOR REFORM”.  (This article was published in the Berkeley Technology Law Journal which we linked to in case you’re subscription expired for some odd reason.  I’m sure they won’t mind.)

The “convenor” of The Project is Professor Pamela Samuelson, a noted anti artist campaigner who puts her money where her mouth is and has founded the Samuelson Glushko legal clinics at various universities with her husband, the Silicon Valley tycoon Robert Glushko.   (If anyone has any idea what the title “convenor” means, please let me know.  MTP readers will remember that the US based Samuelson Glushko acquired for an unknown sum the naming rights to the Canadian Internet Policy and Public Interest Clinic operated by the well known Canada booster Michael Geist at the University of Ottawa, now known as the Samuelson Glushko Canadian Internet Policy and Public Interest Clinic.)

“The following persons are members of the Copyright Principles Project:
Pamela Samuelson, Berkeley Law School (convenor)
Jon A. Baumgarten, Proskauer Rose LLP
Michael W. Carroll, American University, Washington College of Law
Julie E. Cohen, Georgetown University Law Center
Troy Dow, The Walt Disney Co.
Brian Fitzgerald, Queensland University of Technology
Laura Gasaway, University of North Carolina School of Law
Daniel Gervais, Vanderbilt Law School
Terry Ilardi, IBM Corp.
Jessica Litman, University of Michigan School of Law
Lydia Pallas Loren, Lewis & Clark Law School
Glynn Lunney, Tulane University School of Law
Tyler Ochoa, Santa Clara University School of Law
R. Anthony Reese, University of California, Irvine, School of Law
Kate Spelman, Cobalt LLC
Christopher Sprigman, University of Virginia School of Law
Jule Sigall, Microsoft Corp.
Michael Traynor, President Emeritus, American Law Institute
Tara Wheatland, Berkeley Law School
Jeremy Williams, Warner Bros. Entertainment Inc.”

Before we move on to the substance, note a couple things about the composition of this list of members.

Not one artist.  Not one union.  Not even a record company or music publisher.  No visual artists, no photographers.  We do see a representative from Disney and from Warner.  Why might they be there?  Remember what Deep Throat said in All the President’s Men? “The people behind all of this were frightened of Muskey and that’s what got him destroyed. They wanted to run against McGovern. Look who they’re running against.  [McGovern]“

Do they have Disney and Warner in there because the studios are easy to hate (see Lessig and Pirate Party)?  Did the “conveynor” exclude artists because they don’t want to give artists a platform? As stated in “Winning the Web,” the anti-artist organizer’s manual, “And as the ORG campaign suggests, campaigners are often faced with simple, instinctually appealing messages from the other side (“artists need to get paid”) that are difficult to beat with a focus on the IP mechanism.” (The ORG is the Open Rights Group, the UK cousin of the Electronic Frontier Foundation.)

So just because a studio happens to be included in this group, do not let that deceive anyone into thinking that artist interests are represented.  We will be looking at all of the Project’s 25 proposals and offer suggestions.  But I note at the outset that this group has squandered an opportunity to include in their discussion those whose rights are implicated and not just large corporate interests–Big Tech and Big Media–and those who love them.  But we shouldn’t be surprised, because to paraphrase David Lowery, these are the thought leaders of those who want to stick it to the hippie freak musicians who create the copyrights and unstick it to multinational corporations that commoditize them.  (See “Meet the New Boss, Worse Than the Old Boss.”)

We’ve seen The Man before.  This is just The Man 2.0.

Let’s take a quick look at one of the 25 points in The Project’s paper.

“Deformalization”

The Project’s paper has a number of points that deal with the apparent evils of the demise of the “formality” of registration or affixing a copyright notice, etc., that were the old law in the US before the US updated the US copyright law to come in line with the countries from Azerbaijan to Zimbabwe.  One reason to get rid of registration is to offer creators and their heirs copyright protection regardless of whether they ticked a box or forgot to register.

There are a couple different ways to look at copyright protection:  the right to the own the copyright and the ability to prevent others from infringing on that copyright.  If you say to artists you have the right to copyright as set forth in international treaties, but it is an odd construct to say that if a creator fails to register their works others may use them until you catch them–without notice to the creator–and if the creator catches them the creator may not seek damages from them for infringing your works.  Because that is a right without a remedy.

And as we know, a right without a remedy is no right at all.

The Project’s version of “Deformalization” talking point can be summarized:

Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works. Deformalization inhibits reuses of many works because there is no simple way to distinguish between those works whose authors care about copyright protection and those who do not.  The new registration system would provide meaningful incentives to register works that authors or other rights holders expect to have commercial value, ease user access to registered works, and reduce the consequences of infringement for unregistered works.

The Project believes that registration is the definitive method to know the mind of copyright owners as to whether the creator wants to protect their works.  You may never have thought about this much before, but apparently in the hive mind of The Project, the default rule should not be that property should be protected because it is private property.

If you happen on a creation on the Internet, The Project would have you believe that the correct analysis isn’t whoever owns this, I know I don’t, so therefore I should not take it.  No, no.  The correct analysis, says The Project, is I should determine if the the copyright owner has taken a particular course of action–registration–and only then will I know definitively whether I can use the copyright as I see fit and without regard to the creator’s wishes, however many ways that creator may have expressed their wishes about the disposition of their works.

This would be like requiring you to file a particular notice with the county assessor’s office instead of posting a sign that said “BEWARE OF DOG”.  If you cared more about full employment for lawyers rather than full employment for dogs, you might find this appealing.  But then you’d be called a property troll, wouldn’t you?

In the minds of The Project, property should only receive its full protection if the property owner has taken the specific action of registration to indicate that the property owner wishes to protect the property.  This is, of course, exactly why the Berne Convention (the major international copyright treaty) prohibits “formalities” and government mandated conditions on copyrights.  And why adherence to The Project’s views will very likely land us in a hugely expensive arbitration at WTO.

So the default will then be no punishment for infringement without registration, and until registration the rights are available to the public, i.e., the default will be the collective ownership of copyrights or at least the unfettered commercial use by Big Media and Big Tech.

And what it really boils down for The Project to is that “deformalization” is bad, and re-regulation is good.  And just watch all the supposed libertarians line up to defend collectivization.

Let’s look at these points again:

“Copyright law should encourage copyright owners to register their works so that better information will be available as to who claims copyright ownership in which works.”

The market produces that information already.  The potential user says, “Do I own this work?”  If the answer is “No,” then ask permission or use something else.

You could even go a step farther–ask if the work has been made available under a Creative Commons license.  Just look up the work in the Creative Commons registration database.  Oh, wait–there isn’t one.  Well…do the best you can.  If you still can’t find a Creative Commons license, then find something else.

Deformalization inhibits reuses of many works because there is no simple way to distinguish between those works whose authors care about copyright protection and those who do not.

See above.  Assume all care about copyright protection.  If the reuse is important enough, the owner will be found.

The new registration system would provide meaningful incentives to register works that authors or other rights holders expect to have commercial value, ease user access to registered works, and reduce the consequences of infringement for unregistered works.

This is interesting–the notion of “commercial value” has crept in.  What if the owner thinks the work will have commercial value, but it hasn’t yet acquired that commercial value.  What if the owner doesn’t want to take a chance on guessing wrong and registers everything?  And what if the work doesn’t acquire that value during the lifetime of the author?  Does this “commercial value” concept become a rebuttable presumption even for registered works?

And the downside for authors?  Collectivization or corporatization of their unregistered work based on someone else’s unwillingness to ask permission.  And as we all know, the really pressing problem for rights holders online is dealing with all the permission requests they get–for registered works under the current US copyright law.  (That’s a joke.)

And this is the real question for The Project.  There is currently a registration system in the US.  Many, many works are registered with the Copyright Office.  Piracy is rampant, and major brands sponsor piracy through advertising sold by criminal organizations.  If registration was working, wouldn’t we see some evidence of it without standing the current copyright law on its head?

As (then) Google lawyer Alexander MacGilivrey made clear in his testimony at the Copyright Office:

“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.”

Kind of hard to do without “deformalization”.

Reblogged from The Trichordist:

Jonathan Taplin at  USC's  Annenberg Center has spent the last few month studying which parts of the online advertising ecosystem are delivering advertising (and hence revenue) to unlicensed music sharing and streaming sites.   His study has caused quite a stir in the advertising and entertainment industry.  Jonathan recently asked me to corroborate some of his findings regarding which brands are advertising on these websites.

Read more… 622 more words

Jon Baumgarten, retired Proskauer Rose attorney and former General Counsel of the U.S. Copyright Office;

Laura Gasaway, Professor, University of North Carolina Law School and co-chair of the Section 108 Study Group;

Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program;;

Pam Samuelson, Professor, University of California at Berkeley Law School

Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office.

One thing should jump out at you about this group.

No artists.

Unfortunately, the hearing has the title “A Case Study for Consensus Building: The Copyright Principles Project”.  Sounds like somebody didn’t do their homework, because what this “Copyright Principles Project” is NOT it’s a consensus.  Except a consensus of The Man 2.0.

They will be discussing something called the “Copyright Principles Project”.  Who’s that you say?  According to the “THE COPYRIGHT PRINCIPLES PROJECT:
DIRECTIONS FOR REFORM”  it’s a bunch of Big Media and Big Tech folks and the lawyers and academics who love them.  More about them later.  (This article was published in the Berkeley Technology Law Journal which we linked to in case you’re not a subscriber for some odd reason.  I’m sure they won’t mind.)

We’ll be posting some commentary on the “Copyright Principles Project,” but I note at the outset that one glaring explanation for its many, many flaws is that no artist was included in the group–no musician, visual artist, not even the documentarians.

How in the world could you think that you had a relevant discussion about copyright that did not include creators?  You know, the ones who actually create the copyrights that give all these people a job?  (Whether trying to destroy artists or protect artists, the artists sure to seem to create a lot of money for all concerned–what if we just paid that money to the artists?)

A prime example of this entitled ivory tower irrelevance is how the “Copyright Principles Project” overlooks entirely the absurd number of DMCA notices that get sent every minute of every day–Google search gets 20 million DMCA notices a month from the big rightsholders alone, notices that Google has acknowledged are 97% accurate.

20,000,000 a month!

How can these people have a rational discussion about “copyright principles” if this extraordinary situation–a kind of copyright version of adverse possession–drains hundreds of millions of dollars from the creative community and places obscene burdens on creators.

And if you read the news from Big Tech–it’s like this isn’t happening at all.

Think about it–even if each notice costs as little as $10 in total productivity loss and cash outlay, the transaction costs alone of serving notices on Google search–just Google search–is $200,000,000 a month.  And that’s for the people who can afford the high powered automated system that Google uses to count up their transparency report.  And it doesn’t even count the artists who have succumbed to the ennui of learned helplessness that Google does so much to foster.

In reality, there’s nothing wrong with the DMCA system itself–what’s wrong is the design defect and “catch me if you can” mentality that has resulted in what’s called a “DMCA license”–a taking by adverse possession of copyright.  This is what happens when artists are forced to send notice after notice after notice after notice to take down the same work from a site–including sites like YouTube–that employs the catch me if you can game.

I have to believe that Chairman Goodlatte–a very reasonable and fair legislator–will give artists a voice in subsequent hearings.  But–it’s a pity that the IP Subcommittee is starting with the old hash–because remember, consulting with everyone except the artists was how we got here in the first place.  The “Copyright Principles” are just a thinly disguised power grab by The Man 2.0.

The Man isn’t stupid–he knows not to include the artists because they’ll tell him something he doesn’t want to hear.