Author Archive

Whack a Mole Redux: Senator Ben Nelson Calls Out the Ridiculously Porous YouTube Kids App

October 8, 2015 Leave a comment

Don’t get too excited, but the chickens may finally be coming home to roost for one of Google’s many data mining platforms, this one commonly known as YouTube.  Senator Ben Nelson (D-FL) recently highlighted the flaws in the YouTube Kids app–remember, this is not the web version of YouTube, this is an app expressly targeted at parents of children “five and under”–FIVE AND UNDER.  As Senator Nelson describes them: “toddlers”.

MTP readers will, of course, know where this is going.  Because Google refuses to take any responsibility for assuring that improper materials–materials that violate Google’s own policies and terms of use–get into places the materials are not supposed to be, a substantial amount of improper stuff gets into the YouTube Kids app.

It must be said that challenging Google’s ability to keep bad things off of their service is also at the heart of Mississippi Attorney General Jim Hood’s questions he asked of Google and for which Google is suing him.  So Senator Nelson should feel good that he hasn’t been sued, too.  At least not yet.  Google doesn’t like it when you challenge them.

I would encourage you to take some time and watch Senator Nelson’s video–which is hosted on….YouTube, a fact that should not escape your focus.  Hosting videos on YouTube for Members of Congress allows Google almost continual access to the staffs of the Members, access that does not show up on any lobbying report and in-kind donations that are not disclosed to the Federal Election Commission.

Pay particular attention to the quotes from Google’s replies to Senator Nelson’s letters which will sound very familiar to anyone who sends take down requests to YouTube.  It’s all about the famous algorithm and user complaints.  We in the music business know all about that answer.  This would be the famous algorithm that attracts 350 million take down notices for search alone–the algorithm that is pretty clearly not fit for purpose and is as dangerous to users as an exploding gas tank.  At least as dangerous as this guy:

But here’s the question that Senator Nelson should also be asking.  If he’s finding these problems with the YouTube Kids app, has he had a peek at what is available on the web version of YouTube?  He should, because the reason that YouTube has the YouTube Kids app is to capture an audience as early as possible to transition them to the web version at as early an age as Google can manage it.  The better to scrape your data with my dear.

And when young users transition from the app to the real thing, they will then be exposed to jihadi recruiting videos, what the ADL calls “bigots who rock,” “how to” shoot heroin in the femoral vein, the HGH community and sugar daddy dating sights.

So ask yourself this–what kind of depraved excuse for a human being would enrich themselves this way?

Here’s the Google letter to Senator Nelson from head lobbyist and revolving door maven Susan Molinari:



Blake Morgan’s Evening Stroll through the District of Columbia

October 5, 2015 Leave a comment

An awesome update from Blake Morgan–apologies if you’re one of the 6,000 or so who have seen this already on Facebook.

Make history, get artists paid for radio play, sign the petition at I Respect Music!

The Russians Are Coming for Ad-Sponsored Piracy But Will They Come For Google?

October 2, 2015 Leave a comment

Paul Resnikoff is reporting in Digital Music News that according to Izvestia the Russian Minister of Communications Alexei Volin intends to publish a list of 100 major brands whose online ads routine appear on pirate sites.  (Izvestia is essentially a government controlled broadsheet, so it is safe to say that there’s nothing that appears in Investia that Mr. Putin doesn’t want to be there.)

Paul obtained a translation of the Russian-language article indicating that this would be something of a name-and-shame campaign.  As MTP readers will recall, we have been on this tip for years, as has David Lowery in the Trichordist and his “Undesirable Lyric Site” report that focused on unlicensed lyric sites especially those that were ad supported.  So I’m somewhat gratified that a government would take on this issue from essentially the same approach.

I find it bizarre, however, that it’s the Russian government.  One reason is that I find it very hard to believe is the long history of pirate sites operating in Russia–could those sites have operated without Kremlin protection (if not financial participation)?  We’ll see if this actually comes to pass and whether anything happens as a result of it.

It is well to note though that major brands and the mega-ad agencies like WPP are taking a hard look at whether online advertising even makes sense given the high degree of click fraud and scamming by ad networks.  According to a recent article in the Financial Times, WPP CEO Sir Martin Sorrell “warned Google that unless it improves its efforts to weed out ‘fake views’ of online adverts, marketers will shift their focus back towards traditional media such as press and television.”   Sir Martin was reacting to a study that alleged that Google “has been charging marketers for YouTube ad views even when the video platform’s fraud-detection systems identify that a ‘viewer’ is a robot rather than a human being” and Sir Martin stated the obvious conclusion that “Clients are becoming wary and suspicious.”

So on the one hand you have the brands getting shamed, now by the Russian government of all things, and on the other hand they are getting ripped off by the ad networks especially Adsense and YouTube.  And at the same time we have the YouTube, Spotify and Pandora trying to convince us that free streaming is our future (Spotify and Pandora both use Google’s Doubleclick platform that is no doubt part of the problem Sir Martin describes).

No wonder these services make upstream advertising revenue so difficult to confirm.  Harvard Business School Professor Ben Edelman called it years ago with his prescient “Toward a Bill of Rights for Online Advertisers“.  If it’s any consolation, these ad networks don’t just do it to us, they do it to everyone including the brands themselves.  The first plank of Edelman’s bill of rights is transparency for advertisers:

An advertiser’s right to know where its ads are shown.  It is nonsense to pay for ad space without knowing where an ad will appear; sites vary too much in user quality and context.  Even for “blind buys,” advertisers need enough information to determine whether a given site qualifies to show an ad.  Anything less undermines accountability—inviting fraudulent sites that devour advertisers’ budgets.  And with all manner of fraud—from spyware pop-ups to invisible banners to adult sites slipping into networks that claim to be brand-friendly—advertisers need to be wary.

If advertisers had demanded the rights that Ben Edelman proposed in 2009, it would be a lot easier to take their side now.  But they didn’t and it’s not.

So however difficult it is to swallow that it’s the Russians, and however odd the timing, it will be welcome for any government to follow suit.

President Obama, please take note.

Artist Rights are Human Rights

September 27, 2015 1 comment


The human rights of artists is a different concept from intellectual property rights, such as copyright. Intellectual property rights are created by national laws, and the human rights of artists are recognized as the fundamental rights of all persons by all of the central human rights documents to which hundreds of countries have agreed.

These rights resonate in a number of international and national documents, but a good international agreement to consider first is the International Covenant on Economic, Social and Cultural Rights that was ratified by the United Nations General Assembly on December 16, 1966. It is important to remember that human rights are fundamental, inalienable and universal entitlements belonging to individuals, individual artists in our case. As a legal matter, human rights can be distinguished from intellectual property rights as intellectual property rights are arguably subordinate to human rights and actually implement at the national level the human rights recognized as transcending international and national intellectual property laws.

The Covenant recognizes everyone’s right — as a human right–to the protection and the benefits from the protection of the moral and material interests derived from any scientific, literary or artistic production of which he or she is the author. This human right itself derives from the inherent dignity and worth of all persons. The Covenant recognizes these rights of artists (in article 15, paragraph 1 (c):“The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”

These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.

The human rights of authors are recognized in a multitude of international agreements, including article 27, paragraph 2, of the Universal Declaration of Human Rights: (“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”); article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948 (“Every person has the right…to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author”); article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (the Protocol of San Salvador) (“The States Parties to this Protocol recognize the right of everyone…[t]o benefit from the protection of moral and material interests deriving from any scientific, literary or artistic production of which he is the author”); and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952 (the European Convention on Human Rights) (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”).

These precedents clearly enunciate the goals of the international community. The Covenant is closely linked with the right to own property (recognized in article 17 of the Universal Declaration of Human Rights) and workers’ rights to adequate remuneration. The “material interests” protected by the Covenant are protected under the right to an adequate standard of living.

These moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works that would be “prejudicial to their honor and reputation.” The protected interests of artists include the right to just remuneration for their labor as well as the moral right to the “intrinsically personal and durable link” between creators and their creations that survives even after the passing of the work into the public domain.

Apple Music for one have recognized the importance of protecting these essential interests of artists, albeit only recently. But I’ll take it. Apple’s commitment is reflected in the iTunes style guide that prohibits the practice of “covering” a song made popular by a different artist, but including that artist’s name in the metadata under the guise of “tribute to” or “inspired by” when the commercial incentive is to include that original artists name in the track metadata so that those searching for the original artist will find the cover. One might ask why this offensive practice became an art form only on digital services if that’s not the true motivation.

But what bothers me most about the massive, worldwide infringement of artist human rights is not just that major multinational corporations like Google are knee-deep in perpetuating this exploitation economy. It is that the governments of the world have done very little or nothing to stop it. And in that regard, these governments have failed to protect the human rights of artists.

If there seems to be a coordinated effort in many countries to oppose the rights of creators, that’s because there is — a complex effort very well described in the book Winning the Web, written by the former head of the Open Rights Group and sponsored by the Open Society Institute ( (The Open Rights Group (or “ORG”) is essentially the UK version of the Electronic Frontier Foundation and is a voice in the opposition to artist rights protection under the UK Digital Economy Act.)

But these coordinated attacks on artists’ rights also extend to some unlikely places — such as the United Nations Human Rights Council. This is not surprising because there has been a sustained effort to define away an artist’s ability to protect these transcendent rights (“it’s not really property so it can’t really be theft”)–the success of the anti-copyright crowd in destroying artists is in part dependent on getting over this issue. If the ORG, EFF and Google can define away an artist’s right to protect their rights through ridicule (such as Lessig’s obliging piece “The Starving Artist Canard“) , or by making them small as Lessig said on a Pirate Party UK video, “we” should not “break the Internet” to protect a “tiny industry” such as the hated “Hollywood”, then it will be easier for Google to roll over artists. Then it is easier to define an artist’s human rights out of existence altogether.

And doesn’t that just sound like a human rights violation?

Their reach is deep–I find it very strange that the United Nations 2011 report on promoting freedom of expression Frank La Rue the then-Special Rapporteur for the UN Human Rights Commission failed to address the human rights of artists even once but mentioned Google in glowing terms seven times. Who is most likely to be doing the expressing part, artists or Google?

The Special Rapporteur’s conclusions would impose grave burdens on artists, yet bends over backwards to protect the rights of corporate intermediaries online–and specifically mentions Google. Mr. La Rue, by the way, now advises Google on “right to be forgotten” take downs.

Of course it is not enough that the States of the General Assembly merely recognize these rights of artists in a number of international agreements — the States also have undertaken the affirmative obligation to protect these rights of authors. This is, after all, what the Sovereign is all about.

Those protections include adequate legislation and regulations, as well as making effective administrative, judicial or other appropriate remedies available to authors within each jurisdiction. Access to such remedies must be affordable— violations of moral rights cannot be remedied only if the rich are able to enforce their rights.

Unfortunately, this is not the current state of the world, even — perhaps especially — in developed countries. If an artist calls 911 because her car is being stolen out of her driveway, the police will respond. If the same artists calls 911 because her life’s work is being stolen online, nothing happens. This is a righteous complaint because it goes to the heart of the social contract between the Sovereign and the governed.

Some in the “Big Tech” orbit have described artist complaints of these human rights violations as “moral panics.” Anyone who takes seriously the international human rights of artists will find “Big Tech’s” dismissive use of “moral panic” to be deeply offensive to creators. It is Orwellian to describe as a “moral panic” an allegation of immorality being associated with massive infringement by means of weaponized search supported by advertising. Infringment that deprives creators of their ability to achieve an adequate standard of living. In fact, one Google representative dismissed demanding fair payment as “fetishizing royalties.”

This “don’t be moral” admonition obscures much more than mere lusting for commercial gain on the part of Google, Popcorn Time or Bit Torrent. The protection of artist rights — many of the rights of the professional creative class — are entitled to protection as human rights.

Ellie Goulding’s New YouTube Strategy Finally Puts Google in its Place

September 22, 2015 2 comments

We all know that YouTube pays the lowest royalty rate and has the least transparent royalty statements of any digital service. Due to really bad advice, artists and labels have been driving traffic to YouTube essentially for free and marketers misread the direction of this traffic in forming the belief that hits need YouTube.  Actually, it’s the other way around.  YouTube needs hits.

Taylor Swift’s 1989 release led the way on putting this YouTube situation back on the right track.  Taylor’s videos were pretty much only available on the higher-royalty Vevo, and her label used a variety of tools to take down most of the other Taylor videos on YouTube proper.  (So while it is true that Taylor denied Spotify, to say that somehow the business move was ill-advised because YouTube pays less than Spotify misses the Vevo point.)

Ellie Goulding is now extending the strategy in rather a brilliant way.

Elle’s video on YouTube proper for the new single “On My Mind” is merely a still image with a 30 second snippet of the audio track.  When the video starts, a link to the official (and full length) video appears, sending fans to the official video on Vevo.

At the end of the snippet (clearly marked as a snippet in the YouTube metadata), graphics come up suggesting that the user stream the track on Spotify or Apple Music.  (Of course, if the label didn’t include Spotify, Daniel Ek’s high priced lobbyists would no doubt go crying “collusion” to the Obama White House they have such easy access to.)

Links under the video drive the user to more artist locations outside of the tacky YouTube environment.

Of course–given that we are talking about the tasteless YouTube, Google managed to get two–count em, two–ads to run when I watched the snippet video, a pre-roll and an embed.

All and all, a great victory over the YouTube data mining honey pot.  If the artist is going to drive traffic to Google, she should be able to direct her fans to a good quality experience at a reasonable price.

Lessig Defends Dotcom as Extradition Hearing Begins | Copyhype

September 22, 2015 1 comment

Originally posted on The Trichordist:

Required reading regarding Larry Lessig’s pitch to help Kim Dotcom…

The second thing about Lessig’s declaration that jumps out is an apparent contradiction between Lessig and Dotcom’s defense team regarding the applicability of the DMCA safe harbors to Megaupload.

In the white paper, Dotcom’s defense team says

Even if the U.S. government’s wishful expansion of the criminal copyright law into the realm of secondary infringement were tenable (which it is not), Megaupload is shielded from criminal liability by specific “safe harbor” provisions in the Digital Millennium Copyright Act (DMCA), included in the law to protect companies like Megaupload that make efforts to remove infringing material in response to “take-down” notices issued by copyright holders

But in his declaration, Lessig asserts “The DMCA is only a defense in the civil context”. The reversal is notable.


Larry Lessig is Wrong, and should “Get Over It”

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What is the Intention of Justice? Notice and Stay Down is the Government’s Responsibility

September 21, 2015 Leave a comment


Let’s get back to justice…what is justice?  What is the intention of justice? The intention of justice is to see that the guilty people are proven guilty and that the innocent are freed.  Simple isn’t it?  Only it’s not that simple.

From …And Justice for All, written by Valerie Curtin and Barry Levinson.

There is a new term in our lexicon:  Notice and stay down.  What does it mean?

It is a way of encapsulating a distortion of the law that large multinational corporations are using to their immense profit by middlemaning the theft of other people’s property in the weaponized Internet.

In the late 1990s, the large ISPs had a legitimate concern.  If they are providing ways for the many to connect with each other over the Internet by means of a technology that also enabled them anonymously to send digitized property by means of that technology–such as a file that contained a copy of a sound recording or an image–they need to be protected from responsibility for things like copyright infringement.

They needed a zone in which they could operate, a zone that came to be called the safe harbor.  The deal essentially was that if you didn’t have a reason to know there was bad behavior going on with your users, a reason waiving like a red flag, then the government would provide a little latitude to reasonable people acting reasonably, assuming you otherwise qualified as an online service provider.

If a copyright owner thought there was infringement going on that didn’t qualify for the safe harbor, then the thought was that they shouldn’t have to file a lawsuit, they could just send a simple notice to the service provider.  If it turned out that there was a bona fide dispute, then the parties could go to court and hash it out.  The notice was perceived as an inexpensive remedy that would be available to artists who did not want to take on a lawsuit as well as large corporations with litigation budgets.

Sounds very civilized, don’t it?  Sounds like something that could be considered to be just.

The one thing that nobody thought was that there would be an amoral multinational corporation whose business model is in large part built on exploiting that safe harbor in a way that it seems inconceivable was the intention of the Congress.

Now we have that company–Google–bleeding copyright owners dry through exploiting this loophole while reaping great profits for itself.  Profits that it uses to hire an army of lobbyists to perpetuate its ability to bleed artists dry.  The circle of life.

And if you struggle against the “whack a mole” reality of the safe harbor, then the Google PR team suggests that there’s something wrong with you.

To be clear, Google is not the only one who benefits from the safe harbor.  But Google is the only company that Morgan Stanley estimates grosses $6 billion a year from YouTube.  That supported Kim Dot Com’s advertising business.  That profits from the sale of advertising for counterfeit goods.  No, Google is in a class by itself when it comes to exploiting the “safe harbor.”  Google behaves in a way that we would like to think hardly could have been contemplated by the U.S. Congress.

So now when we ask that some common sense be applied to this grotesque distortion of the law–this unjust distortion of the law–we are told that it’s not up to government to tell us what their law means, we are supposed to tell them how we would like to amend the law so that when you send a notice for the same work on the same service 100,000 times it stays down.

Whack a mole is not automatic–someone has to decide to repost the infringing file knowing it is infringing.  That actually defies the entire purpose of the safe harbor–that is not a little latitude for reasonable people acting reasonably.  Whack a mole actually describes a crime that should be investigated by the FBI.

Let’s get back to justice.  Not only are we being asked to tell lawmakers what their law means, the U.S. Government has utterly failed artists with the fundamental justification for the sovereign common to our jurisprudence and political theory.  It failed artists in the basic tenet of the social contract theories embedded in our Constitution.  The Congress failed to protect artists, failed to enforce the laws, and permitted the most blatant crony capitalism to reign supreme, essentially overseeing and giving legitimacy to one of the largest income transfers of all time.  You may think that’s a little soft–I’m being diplomatic.  The Congress permits Google to commit what I believe to be crimes, all day, every day.

And that’s the other point.  Unlike Socrates who suggested that citizens could vote with their feet, we cannot escape the Internet.  It can’t be said that we should just move to another country as Plato writes in the Crito.  Instead of protecting us from companies like Google and the criminal enterprises it supports through traffic and the sale of advertising, the government actually allows Google to install the gigabit Google Fiber so that massive theft can be accomplished even more massively.

So I would beg pardon here–I do not feel that it should be necessary for artists to tell the Congress what we would accept in the way of parameters for “notice and stay down”, at least not initially.  I think artists have the undisputed right to ask–actually to demand–of the Congress, what was their intention.

The safe harbor is their law.  They wrote it.  They voted for it.  They presumably have some idea what it is supposed to mean.  Many who voted for it are still in the Congress.  Isn’t the place to start a coming clean about what Congress intended?  Why should artists have to tell the Congress what the Congress’s intention was?

If it was the intention of the Congress (and President Clinton who signed the law) that the current state of play was the plan all along, then let them say that.  Google is on track to receive over 300 million take down notices this year alone.  If this was the Congressional intention, then let them say that.  If their intention was there should be no upper limit on the number of takedown notices any one company could receive in a year, then let them say that.  And explain themselves.

And let’s be clear–Google does not view these hundreds of millions of notices as a design defect, although that would be a perfectly reasonable starting place.  Google views 300 million notices as a feature set.

Neither should the starting place be some guess on the part of artists as to how many notices are too many, which is inherent in the “notice and stay down” concept.  The starting place should be whether there are too many being sent already and what is the punishment.

Because what is the intention of justice?  That the guilty are proven guilty.  But if lawmakers won’t tell us what it means to be guilty much less prosecute the politically connected wrongdoers, then what justice is that?




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