This is a video of a great panel at the Creators Conference including a keynote by Robert B. Levine and our friends Rick Carnes and Helienne Lindvall, as well as many other thoughtful speakers.  This is about an hour long, but you should watch the whole thing if you can.

Summons Issued as to Nikesh Arora, Sergey Brin, L. John Doerr, Google, Inc., Paul S Otellini, Larry Page, Patrick Pichette, Eric E Schmidt, K. Ram Shriram, Shirley M Tilghman. (bw, COURT STAFF) (Filed on 8/29/2011) (Entered: 08/30/2011)

Google Sued Over Adwords for Canadian Drug Imports

“The Internet allows messages to be better focused on particular groups of potential customers. With that ability comes the growing possibility that the Justice Department will view search engines as more than mere passive conduits of information, and instead as potentially active participants in conduct that may violate the law.”

For every lawyer who argued with me when I forbade them board memberships.  It’s not a gym.

1. Jessie Baylin (Los Angeles) “Hurry Hurry” @jessiebaylin

2.  Atlas : Empire (Glasgow) “At the Edge of the Ravine” @atlasempireuk

3. Forest Fires (Aberdeen) “Best Intentions” @Forest_Fires

4.  Frankie Rose (Brooklyn) “Soma” @missfrankierose

5.  Keyboard Kid (Seattle) “Breathe In”  @keyboardkid206

The ever-transparent (or rather never-transparent) Google did not want to testify before the House Energy & Commerce Committee but instead wanted a closed-door meeting with members.  Google offered this up in record time after receiving a letter from a number of members of the Energy & Commerce subcommittee chaired by Congresswoman Mary Bono Mack, widow of Sonny Bono, who was a favorite whipping boy of Poker Prof Lawrence Lessig whose organizations have received millions from Google.  Coincidentally, that letter was co-signed by Congresswoman Jackie Speier, who represents the San Mateo district near Google’s Mountain View offices.

Of course, Google doesn’t want anyone, particularly not the government, to know what they are doing after the Google Drugs debacle, so it is not surprising that the meeting was unsatisfactory.  “‘At the end of the day, I don’t think their answers to us were very forthcoming necessarily in what this really means for the safety of our families and our children,’ Bono Mack told reporters after the closed-door briefing.”

Don’t be surprised to see a new tussle break out over whether Larry Page should testify about this, too.  And that will be interesting indeed.

However, in the meantime, everyone dealing with YouTube or Google Music should understand the real value of music to Google–as a honeypot for data collection that attracts a wide demographic group, starting with teens and kids.  This is why Google is the Joe Camel of search.  Now about that Google Home Entertainment Center….

(Connecting the dots:  This was the same Jackie Speier who Lessig briefly planned to challenge in the Congressional primary after Tom Lantos died in office–a bid for public office backed by Beth Noveck who was later the White House Chief Technology Officer for Open Government and who left the White House after former Google lobbyist Andrew McLaughlin was punished for having improper communications with Markham Erickson (Net Coalition lobbyist), Alan Davidson (Google lobbyist and former Center for Democracy and Technology, Ben Scott (Free Press) and others.  Jackie Speier was also an aid to Congressman Leo Ryan who was murdered in the Jonestown massacre, and Speier herself was shot five times and had to wait nearly a day before she received medical attention.)

Felix “BYOB” Oberholzer-Gee take note–nobody believes you.

Check out Mike Lombardo Music and follow @mikelombardo

Patronism.com (and @patronism) allows artists to create a patron-type relationship with their fans and give their fans steady access to the artist’s music.  Each artist decides how to structure that relationship, how much to give and how much to charge.  The site is the brainchild of Austin artist John Pointer, truly one of the most gifted performers and vocalists I’ve ever heard (or seen).

Not a surprise–Patronism is not trying to be all things to all people and there is an A&R process to being able to participate in the site.  We like that–no get big fast here, just get good faster.

Although I’ve heard a lot of claims for “new income streams”, Patronsim may actually be a completely new income stream that doesn’t “cannibalize” any others.

Check out the good news at Patronism.com and listen to the MTP podcast interview with John Pointer.

In his excellent critique of the SOPA astroturf campaign, “Lobbyists 1, Internet 0: An Alternative Take on SOPA,” David Rodnitzky of PPC Associates really puts a nail in the coffin of Google’s campaign.  Rodnitzky has no ties whatsoever to the entertainment industry, and opposed SOPA.  However, he also doesn’t like being lied to or lied about.  At the risk of stating the obvious, Rodnitsky’s piece is genuine citizen journalism.

Rodnitsky starts at the right place–something about the SOPA campaign didn’t feel quite right.  He wanted to believe it was a great day for democracy, but began to suspect it wasn’t quite all that.  Rodnitsky was concerned about “how easy it can be to get caught up in a moment, often without fully thinking through why we are for or against a cause. So now that the initial ebullience of our anti-SOPA moment of triumph has worn off, it’s worth reflecting a little deeper on this moment in Internet history. How exactly did the SOPA blackout come about, and why did so many people rally to its cause?”

Using his background as a search engine marketer, Rodnitsky then takes us through a careful analysis of exactly what happened when and by whom.  For those who have been deflecting attacks from the same group of anti-copyright adversaries for a decade or more, these names are familiar to us even though they were new to Rodnitsky.  However, he connected the dots very well nonetheless.

Rodnitsky notes that Google, Facebook, Twitter, AOL, and eBay had been lobbying Congress for months regarding SOPA–actually for months regarding it’s Senate predecessors COICA and Protect IP as well.  Both legislative action and Google’s lobbying really gathered steam once it became apparent to Members that Google was next deep in really sleazy advertising practices regarding rogue sites.  In fact, the term “rogue sites” was probably coined by former Health and Human Services Secretary Joseph A. Califano, Jr., now director of the Columbia University National Center for Addiction and Substance Abuse in a direct appeal to Eric Schmidt for Google to stop promoting the sale of controlled substances–which letter was ignored, by the way:  “[We were] able to find prominent displays of ads for rogue [sites] in a Google search for controlled drugs included in our analysis. This suggests that Google is profiting from advertisements for illegal sales of controlled…drugs.”

Google, of course, really stepped up its lobbying campaign–some staffers have suggested that they had two lobbyists or consultants for each Member of Congress.  Google’s lobbying expenditures tripled to $3.76M in Q4 2011, and that doesn’t count what it spends on the union buster Net Coalition, Public Knowledge, EFF, ACLU, and so on and so on and so on.  I can’t wait to see the lobbying reports for Q1 2012.

Rodnitsky puts his finger right in the astroturf:

“The history of public reaction to SOPA is really a history of effective public relations. SOPA was introduced into the house in late October of last year by a bipartisan group of lawmakers. You probably heard little about the dangers of SOPA, however, until mid-November, when Google, Facebook, and several other large Internet companies bought full-page ads in major newspapers outlining their opposition to the bill. Shortly after these ads, and testimony by a Google attorney in front of Congress, and who knows what else behind the scenes, editorial and tech writers started to come out against SOPA.”

Rodnitsky is quite correct–the timing of the public relations campaign was quite remarkable, with everyone from the LA Times (not surprising) to the Heritage Foundation (very surprising) having something negative to say.  (See “Heritage Foundation Misses the Market on Rogue Sites“.)  I personally was interviewed by a reporter from the LA Times who was clearly was trying to get me to change my view on the legislation.  In fact, every reporter I spoke to about SOPA clearly started the conversation with an anti-SOPA position, often based on a half-baked understanding of the facts at best.  This culminated in a TV journalist saying to me that President Obama said he would veto the bill–and resenting my correcting her that President Obama hadn’t said anything of the kind, aside from the fact that there was no bill to veto as yet.  Somehow the misinformation had gone from a White House blog reacting to what was probably a scammed “petition” to a statement that the President of the United States had supposedly made.

Rodnitsky tells us that “Just days after Google’s testimony and full-page ads, Nancy Pelosi (CA-D) and Darrell Issa (CA-R) publicly came out against SOPA. Google is the 8th-largest contributor to Nancy Pelosi and is listed as a “top contributor to Darrel Issa” on OpenSecrets.org. Facebook is listed as a top contributor to Pelosi.”

This is also of interest because Erik Stallman reportedly joined the Net Coalition lobbying firm Holch & Erickson as “retained counsel” right about that time–until January 2011 Stallman had served as chief technology counsel to House Minority Leader and former Speaker Nancy Pelosi.  Net Coalition circulated the union busting flyers at meetings of conservative organizations in Washington and seems to be leading Google’s dirty tricks campaign against organized labor who opposed the company’s management on rogue sites, second only to usual suspect, the Electronic Frontier Foundation.

Using his search engine marketing background, Rodnitsky notes that:

A ”big surge of Twitter traffic came on December 13th, when the Washington Post ran a story about a “visual petition” against SOPA on the Website IWorkForTheInternet.com.”

Of course, nothing is known about IWorkForTheInternet.com other than that the site was created by ”FightForTheFuture.”  While Rodnitsky may not recognize that name, we do.  He observes that ”[t]he only names listed on the FightForTheFuture site are “Tiffiniy Cheng” and “Holmes Wilson.” I looked up Tiffiniy online and she apparently works for “DownhillBattle,” which as best I could tell is a blog that is mad about record labels.”

Oh, you could say that.  We also remember them quite well.

But Rodnitsky notices that Cheng:

“also lists herself as the “Founder, Executive Director, PPF, Open Congress.” PPF is the “Participatory Politics Foundation,” a 501-c-3 non-profit that was founded and funded by The Sunlight Foundation, which is also a non-profit. The Sunlight Foundation is funded by folks like Adobe, Google, Craigslist, the Hewlett Foundation, Reid Hoffman, Esther Dyson, Matt Cutts, and Mark Cuban. Anyways, I’m not an investigative journalist, but all of this strikes me as quite odd; the sudden launch of some very nicely designed, privately registered, anti-SOPA Web sites without any contact info other than a woman who once founded a non-profit that gets money from another non-profit that gets money from technology companies? Methinks something is rotten in Denmark.”

Rodnitsky would have been interested in this story about the Media Democracy Fund whose materials state that it funds Future of Music Coalition and Public Knowledge among many others.  MDF made somewhat uncharacteristically high grants to Fight for the Future (raising the question of whether the contributions were “black boxed” to disguise a corporate contribution):

“Fight for the Future got off the ground last fall with a $300,000 grant from the Media Democracy Fund, which supports public interest organizations that focus on digital rights. Its director, Helen Brunner, said the fund is finalizing another $759,000 grant for Fight for the Future.”

Allow me to add–PPF also lists as its “allies” the Sunlight Foundation (Lessig), Change Congress (Lessig), Free Press (Lessig), Maplight (Lessig), Fix Congress First (Lessig), Rootstrikers (Lessig), and United Republic (Josh Silver fmr Free Press and Lessig).  Who do you suppose funds all these overlapping Lessig organizations?  Although I guess the Global Poker Strategic Thinking Society was left out for some reason.

Rodnitsky ends the story:

“In late December, NetCoalition, one of several lobbying organizations that represent the tech community [and dominated by Google], hatched the idea for the SOPA blackout day. And of course, as we know, eventually the blackout took place, leading to the dramatic increase in awareness and outrage about SOPA that the tech giants had been hoping for all along.”

But his whistful conclusion is most telling, and probably shared by his cohort:

“I’d rather see multi-billion dollar Internet conglomerates dedicate their home pages to raising money to cure cancer or stop poverty than to political battles that benefit their bottom line.”

Unfortunately, you were conned.

Nothing personal, just crony capitalism.

One of Google’s legion of lobbyists recently testified at the House Judiciary Committee that Google alone has “processed” nearly five million DMCA notices so far this year.  Speaking before the House Judiciary Committee, the Google lobbyist did not call the Committee’s attention to another statement in her written testimony: That the number of DMCA notices “processed” by Google in 2010 was “only” 3 million—still a staggering number, but considerably less than 2011.

The increase is 166% so the trend line is definitely up–nearly vertical.  A couple possible explanations–the number of infringements is on the rise, Google is now actually responding to DMCA notices or responding to a much greater extent, or Google’s “we’re just an innocent bystander” explanation–copyright trolls, competitive behavior of copyright companies trying to hurt each other, or Middle Eastern political suppression.

OK.  Let’s give them one million of the five million notices are these outlier cases, a very generous concession particularly since these trolls and potentates didn’t seem to show up in any great numbers in the Google Transparency reporting.  But let us not allow the spin and distraction to completely obfuscate the real issue:  That’s still four million notices of infringement.

And remember–Google acknowledged they received five million notices in the same breath that the lobbyist touted the much ballyhooed YouTube ContentID filtering system–so this is five million on top of the ContentID blocking at least on YouTube, just to compare apples to apples.  So to speak.

When you view the cost of sending these notices from the creators’ side, each notice is estimated to cost the creator at least $100 on average in finding the infringing link, preparing and sending the notice and responding to efforts—particularly by Google—to intimidate the sender and accept almost any pretext as a “counternotification”–a ”process” that allows the Internet company to continue infringing until it is sued.  Which it hardly ever is by the millions of works by independent labels and artists from whom it profits.

This $100 cost estimate does not include the costs of legal fees that many incur to try to understand the counternotification process.  The five million notices do not include those who do not summon the will to send a notice in the first place, or who have been beaten down by the inane Google machine-based DMCA response system so that they no longer bother trying.

Either way, there is a staggering productivity cost—Google has largely automated its DMCA response process, but artists and indie labels have to send the notices one by one every time an infringing file is reposted whether it is in search results, advertising on rogue sites (probably not subject to DMCA in the first place), Blogger or YouTube.

So if Google captures the hash of works to be blocked on YouTube through its much ballyhooed ContentID system, then why not use the ContentID hases to block those same infringing works from search which scrapes the hash when it spiders?

Whether you believe that the $100 figure is correct—resulting in a $500,000,000 productivity cost for 2011 measured by Google’s own numbers—or a lower number is correct,  the very artists who are being ravaged by online theft are being asked to spend precious time and resources monitoring some of the largest corporations in the world.  We believe that the $100 number per notice number is actually low.

And the 1% at Google once again profit from human misery, just like the drugs case–there is not enough at issue in any one case for the artists involved to find it cost effective to sue and over time they will just give up.  Not because of copyright trolls, competitive behavior of copyright companies trying to hurt each other, or Middle Eastern political suppression.

Which kind of makes you wonder exactly how much of Google’s profits are due to shady activities.  It is hard to know how much of Google’s profits are made up of revenues from illegal activities. As Santa Clara Law School Professor Eric Goldman told the New York Times, “’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.) These potential misrepresentations and the “liar’s discount” are certainly a core claim in the stockholder suit filed against Google in San Diego.

So perhaps the reason that most artists can’t afford to fight back is because they were overrun by massive infringement and mostly because the cavalry is not coming.

And that, dear readers, is exactly the point.

See also: Update: Should there be a rating system for “red flag” knowledge? Are Five Million DMCA Notices Too Many?

See also Artist Rights Are Human Rights

Based on his job description, I would suggest that Mr. Batato is probably the most interesting of the bunch of defendants, at least if you want to understand the breadth and scope of the what the indictment calls the “Mega Conspiracy” and how far it goes outside of Megavideo.

Down to a Sunless Sea

I began thinking about this over the last few days when it became apparent that a new meme had surfaced with the Google surrogates.  (Watch how messaging later adopted by Google in its many legal scrapes begins to surface online and from which sources.  You will get an idea of who these people are.)

The new narrative is that shutting down Megavideo accomplished nothing to stop piracy so why bother?  It’s all just whack a mole after all so what justifies the law enforcement resources spent on extradicting the Mega Conspirators?  Yes, and if that’s true, how about that assault, battery, rape, murder, burglary and theft?  Talk about whack a mole!  What’s up with that!

So how would you know the utility of spending law enforcement resources (the cost) without also knowing the losses due to piracy on Megavideo (the absence of which would be a benefit)?  Trying to calculate lost sales inevitably makes for argument and can lead to people like the Government Accountability Office suggesting that policymakers should take into account the positive effects of crime in these calculations.  Yes, it’s true.

But another good way to calculate these losses might be with reference to how much someone else made off of the sale of stolen goods–in the case of copyright from the theft of the reproduction and distribution rights (or the making available rights) reserved to copyright owners.  This measurement would be at least a starting place for the number of infringing copies and at least someplace tangible to start a statutory damages calculation.  Because it is possible to calculate exactly how much adserving companies and the pirate customers made from trafficking in stolen property.  Particularly with a subpoena and a badge.

Ad-driven streams, torrents or downloads are, after all, frequently monetized on sites like Megavideo even though they are unauthorized.  Advertising on pirate sites is not what either the advertiser or the copyright owner bargained for or even wanted, but were monetized nonetheless.

And the good news is that most of that money was made through credit card accounts or advertising sales so are on some level trackable.  So as Google has suggested on numerous occasions–follow the money.

Following the Money

The Mega Conspiracy indictment tells us (at paragraph 18):

“Before any video can be viewed on Megavideo.com, the user must view an advertisement. Originally, the Mega Conspiracy had contracted with companies such as AdBrite, Inc., Google AdSense, and PartyGaming plc for advertising. Currently, the Conspiracy’s own advertising website, Megaclick.com, is used to set up advertising campaigns on all the Mega Sites. The high traffic volume on the Conspiracy websites allows the Conspiracy to charge advertisers up-front and at a higher rate than would be achieved bythe percentage-per-click methodology used by other popular Internet advertising companies. The popularity of the infringing content on the Mega Sites has generated more than $25 million in online advertising revenues for the Conspiracy.” (emphasis mine)

“Originally” in the case of Megavideo was about 2005.  The indictment also states that:

On or about May 17, 2007, a representative from Google AdSense, an Internet advertising company, sent an e-mail to DOTCOM entitled “Google AdSense Account Status.” In the e-mail, the representative stated that “[d]uring our most recent review [as opposed to earlier reviews?] of your site [Megaupload.com,]” Google AdSense specialists found “numerous pages” with links to, among other things, “copyrighted content,” and therefore Google AdSense “will no longer be able towork with you.” The e-mail contains links to specific examples of offending content located on Megaupload.com….

AdBrite, Inc. (AdBrite.com) is an online advertising network based in San Francisco, California. AdBrite, Inc. provides advertisements for over 100,000 Internet sites and is believed to be amongst the top ten advertising networks on the Internet. From on or aboutSeptember 2, 2005 until on or about May 24, 2008, AdBrite paid at least $840,000 to the MegaConspiracy for advertising….

PartyGaming plc is a company based in the United Kingdom that has operated PartyPoker.com since 2001. PartyPoker.com has more than 3 million visitors annually and is one of the largest online poker rooms. PartyGaming’s advertising contract with the members of the Mega Conspiracy was initiated on or about November 12, 2009 and has resulted in payments of more than $3,000,000 to the Conspiracy. This contract was still active as recently as on or about March 18, 2011.

These three supporters of Megavideo would on the surface have little to do with each other.  And maybe they don’t.  But never underestimate the interconnectedness and influence of Silicon Valley VCs and luminaries.  (If you ever doubted it before, you should not doubt it at all after the Google Spring which gave a handy roadmap for future use.)

For example, AdBright and Google are both Sequoia companies.  MTP readers will no doubt remember Partygaming–this is the company whose co-founder, Anurag Dikshit, made big contributions to Creative Commons and also to the U.S. Treasury when he made a plea deal for $300 million after violating the online gambling laws of the United States.  (See Poker Money and the Ethics Professor)  The common theme?  Guess who.  Does it prove anything?  Time will tell.

Of All the Cyberlockers in all the World, She Walks Into His

So you may well ask yourself, of all the companies in the world that might advertise on Megavideo, how is it exactly that the big one that helped get Megavideo in business was Partygaming?  What are the odds of that?  Probably better than 649,740 to 1, which the Poker Prof will no doubt recognize as the odds of being dealt a royal flush.  How in the world did Megavideo and Partygaming find each other?  Perhaps a handy introduction in furtherance of the enterprise?

Another strange coincidence is that even though it would appear that Google Adsense terminated at least one Megavideo account for copyright infringement in 2007–two full years after it appears from the indictment that Google, Adbright and Partygaming helped Megavideo get in business–there is documentation that Google was still serving advertising in connection with illegal content from Megavideo cyberlockers.  (See extensive research on this by Ellen Seidler at Popup Pirates.)

For the adserving companies, if AdBright paid $840,000 to the Mega Conspiracy as the indictment alleges, then Adbright pocketed a good chunk off those transactions itself–probably a like amount.  And continued to do so well after Adsense terminated at least the account that they were writing about as quoted in the indictment.

“And all should cry:  ‘Beware! Beware!’”

And this will always be true–the site operator arrested in Operation Fake Sweep allegedly had at least one Adsense account.  The TVShack operator currently being deported from the UK to stand trial in New York is alleged to have made £150,000 in advertising revenue from selling unauthorized copies of other people’s work.  Whatever these customers of adserving networks made, it is likely that the adserving network, such as Adsense in the case of Operation Fake Sweep or in the Mega Conspiracy, made a like amount.

So I can’t wait to hear the Googley legalistic explanations of how Google doesn’t profit from piracy.  (Unlike the way Google profited from violating the controlled substances laws.)

But one thing is certain–who knows what evil lurks in the hearts of adserving companies.

Only Finn Batato knows.

Let the Wilding Rumpus Start

Levine has written a book that is a must read for all policy makers and indeed all professional creators.  Free Ride is an excellent survey of the current state of play online but also examines the cultural underpinnings of the principle excuses (and in some cases, affirmative defenses) developed by the execuprofs like Lessig and the Berkman Center.  Not surprisingly, the wilding rumpus has begun online which is what happens when you poke the sacred cows.

(“Execuprofs” are those who are ostensibly employed by academic institutions, but whose work is primarily directed at benefiting the corporations who contribute money to their schools or causes.  If these academics were actually executives at the corporations who benefit from their work, they would not be able to proselytize as credibly.  As long as they keep the corporate contributions hidden in plain sight–or hidden–they can continue in this netherworld pretty successfully.  But they are neither executives (no P/L responsiblity) nor professors (conflicts).)

Review of Policy Based Academic Studies

Levine’s book takes a very even-handed look at topics that are generally spun so hard by execuprofs from big institutions like Stanford and Harvard that it’s often hard for policy makers to know what reality is.  Even the U.S. Government Accountability Office has been taken in by some shadowy “experts” who the GAO refuses to name in support of its conclusion that the U.S. government must take into account the positive effects of crime in considering intellectual property policies.  Levine reviews some of the studies the GAO refers to in the GAO’s “study of studies” as well as some of the studies the GAO should have reviewed but failed to include (possibly at the direction of their shadowy “experts”), which should be illuminating to policy makers around the world.   For example, Levine considers the study by Felix Oberholzer-Gee which concluded that policy makers need not worry about online theft because musicians would work for “free beer” and “admiration” (if you know what I mean) as well as the extensive work of economist Stan Liebowitz which, among other things, mounted a very effective criticism of the “free beer” campaign.  (The GAO included the “free beer” study, but not the Liebowitz work–probably on the advice of the secret “experts”.)

For this reason alone Free Ride is an important book for policy makers to keep close by.

Worldwide Blanket Licensing

Levine takes a look at Jim Griffin’s various unworkable ideas about blanket licensing that MTP readers will recall we have discussed in numerous fora and have criticized.  (See my lecture at Osgoode Hall in Toronto, for example and our article in the ABA journal.)  Unfortunately, Levine doesn’t take into account the use of the global database idea as a “bright and shiny object” to further delay the enforcement of property rights online and create full employment for consultants for what will inevitably prove to be a sideshow.  But this is a small criticism of the book and should not be taken as a detraction from an otherwise highly effective and well researched presentation.

The Hands of the Google

One of the truly significant themes in the book is how Levine has laid out in one place all the different ways that Google influences public policy around the world.  This is done through his discussion of the execuprofs, groups like the EFF and Google’s massive contributions to Creative Commons, as well as a history of the YouTube case.  I mean the Viacom case against Google–sorry.  (Saying “the YouTube case” alone is like saying “my brother is in the Army, maybe you know him.”)

For busy policy makers who are trying to get their arms around the Google debacle through the sea of hundreds of Google lobbyists that must cost Google hundreds of millions worldwide, as well as Google’s high levels of government influence (especially in the UK), Levine provides a handy scorecard to keep track of the players.  This is not a black helicopter exercise–Levine has put in the Herculean effort to follow the money from Google to its many front groups.

The book’s review in the Financial Times is generally positive, but has this to say about Levine’s Google analysis (full disclosure, FT is my favorite business website and I tend to overquote them):

“On Google, Levine is correct that this most powerful of digital businesses will  need careful regulation in future. Yet if the company’s “war on copyright” is as  cunning as the author claims, it remains mysterious why it has, as yet, been so  unsuccessful. True, this week Britain’s government did approve some relatively  minor tweaks  to copyright laws. But, on both sides of the Atlantic, sensible attempts to  stop copyright term extension, which often runs long after an artist has died,  have largely failed – usually in the face of fierce lobbying from the very same  media companies Levine paints as victims.”

I actually disagree with the FT’s conclusion.  If Google had just made illegal scans of millions of books without the hundreds of lobbyists and the proverbial legion of lawyers, Google executives would probably be in the federal penitentiary.  So since they are not–yet–in that sense, Google’s campaign has been highly successful.

More importantly, the last sentence may belie the FT reviewer’s sympathies for the arguments of Lessig and many other execuprofs:  Copyright terms that extend “long after an artist has died” is the key point that Google and its followers, including its followers in the press, are most interested in because they wish to cut off the benefits of copyright to the hated “heirs”.  (See also Lessig, “The Starving Artist Canard“.)

The author advances an argument based on duration of the copyright term that will sound familiar to readers of Free Ride.  Lessig wants artists to accept a 14 year copyright term and give up the current life plus 70 as the copyright term (allowing an artist’s heirs to capture the benefit of either a discovery of the deceased artist after their death, or the benefit of being provided for like the journalist’s heirs are from his own estate).  While the reviewer apparently deigns to allow an artist the right to benefit from their creation during their life, when they die, that’s it.  A 100% estate tax.

The FT, of course, makes a silly argument.  But it’s silly for two reasons.  First, artists who want to enforce their rights will be very unlikely to accept a legislated cut from life plus 70 to 14 no matter how much Lessig wants to disenfranchise their heirs.  Even if Lessig manages to pull off the U.S. constitutional convention which would allow him to literally rewrite the copyright clause and finally seek his revenge on the U.S. Supreme Court that denied him in his humiliating defeat in Eldred, it is unlikely that the rest of the world would follow.  (See the eponymous Con-Con-Con effort at Harvard–where else–later this year where there is to be a gathering of grifters of all stripes–or in the case of the Poker Prof, suits.)

Second, the reality is that we currently have a 5 minute copyright.  That’s how long it takes for most works to be digitized and placed on p2p, Bit Torrent networks or cyberlockers for which Google delivers search results and on which Google sells advertising.  Google is bitterly fighting any government effort to cut off this ad revenue by enforcing intellectual property rights through the Protect IP Act (or its predecessor COICA, that Levine discusses in Free Ride).  And as long as this is true, any success from Lessig’s Con-Con-Con job would only serve to drive a further nail in the coffin that I would argue his bizarre faux-philosphy built.

Why Regulation Won’t “Break the Internet”

Given the problems of the 5 minute copyright, Levine’s most important conclusion is the following excellent advice to policy makers who actually want to bring balance to the online environment that preserves consumer choice, protects intellectual property rights and defends the human rights of artists:

“We can do better.

No one believes that piracy could be stopped by a law like [the Combating Online Infringements and Counterfeits Act, a precursor to the Protect IP Act] or an agreement between media companies and Internet service providers [such as the Copyright Alert System]….But regulations like these, whether private or public, would allow a working market to emerge.  Creators would sell, consumers would buy, and both would benefit….Artists would have the option of working with big companies or making their own way in an online economy that allowed them to do business, not just take donations.

In a functioning market, online media would get better, not just cheaper.  And this, in turn, would fuel the growth of more technology companies.  This wouldn’t break the Internet; it would help it live up to its potential.”

Hear, hear.

______________________
Buy the book here:

In the US, Book People and Amazon

Brussels and United Kingdom 

And read Levine’s Free Ride blog.

Andrew Orlowski’s review

The Resonance of Moral Design or Looking for Small Change in a House of Cards