Christian L. Castle, Attorneys -- Austin, Texas

Austin Music Lawyer

We practice in transactions at the nexus of the traditional music industry, content based technology and public policy.

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Google Books: Fair Use for the 1%

(from Music Intelligentsia)

Google dealt creators a serious blow in the last few weeks. In a bizarre ruling sought by Google on fair use in the Google Books case, a New York federal district court essentially decided that after years and years of litigation, authors could not sue Google as a class. According to Business Week:

Google attorney DaralynDurie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.

Yes, Google told Judge Denny Chin that after eight years of litigation during which the countries of Canada, France and Germany filed opposition briefs to protect their authors (and even the U.S. Department of Justice had the temerity to tepidly challenge Administration buddies Google), it was only fair to authors that they should not be able to sue Google as a class.

Judge Chin then ruled that scanning millions of books without permission was a “fair use” because in the years since the start of the litigation Google had scanned so many books and had relationships with libraries. The message being if you’re going to infringe, do it a lot, and if you can find some crackpot librarians to go along with you, even better. (Canadian author and Writers Union of Canada president John Degen sensibly suggests that Judge Chin actually committed the classic “post hoc” logical fallacy in his decision.)

Academic response to the Google Books project has been mixed at best, notwithstanding Judge Chin’s glittering generalities. Berkeley Professor Geoffrey Nunberg’s article, “Google’s Book Search: A Disaster for Scholars” illustrates a couple of problems of the monopoly of one that Judge Chin seemed to want to overlook:

Google’s book search is clearly on track to becoming the world’s largest digital library. No less important, it is also almost certain to be the last one. Google’s [8] year head start and its relationships with libraries and publishers give it an effective monopoly: No competitor will be able to come after it on the same scale.

Nor is technology going to lower the cost of entry. Scanning will always be an expensive, labor-intensive project. Of course, 50 or 100 years from now control of the collection may pass from Google to somebody else—Elsevier, Unesco, Wal-Mart. But it’s safe to assume that the digitized books that scholars will be working with then will be the very same ones that are sitting on Google’s servers today, augmented by the millions of titles published in the interim.

Judge Chin may be impressed with the virtues of one monopolist having a monopoly on “the world’s largest digital library” as a justification for his fair use ruling, but what about Google’s horrendous record on user privacy, complicity in the spy agency scandals, and sharp treatment of artists of all stripes suggests that they come to the fair use defense with clean hands?

So if the authors say no, why does Google send in their thuggish lawyers to force authors to submit? The authors of the books at issue clearly do not trust them—I suppose it is theoretically possible to have devised a more rancid method of alienating every living writer on the planet and the heirs of the dead—all at the same time—but I can’t think of what it would be. Who can forget the “Heidelberg Appeal” when 1,300 German authors like a contemporary Luther nailed their protest against Google Books to the doors of German President Horst Köhler, Chancellor Angela Merkel and the heads of Germany’s 16 federal states.

Self Serving Mistakes in the Metadata?

Professor Nunberg has noted one of the serious failures of Google Books that directly calls into question the very failing that Judge Chin trumpets as virtue: The metadata stinks.

Start with publication dates. To take Google’s word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler’s Killer in the Rain, The Portable Dorothy Parker, André Malraux’s La Condition Humaine, Stephen King’s Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams’s Culture and Society 1780-1950, and Robert Shelton’s biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf’s letters is dated 1900, when she would have been 8 years old. Tom Wolfe’s Bonfire of the Vanities is dated 1888, and an edition of Henry James’s What Maisie Knew is dated 1848.

Remember that there have been some serious discussions of Google taking on the role of database to copyright agencies around the world (perhaps even our own). Now think about Professor Nunberg’s criticism of copyright dates, which he found to be rampant in the “library”. And notice that Google’s mistakes always seemed to make in-copyright works older—much older—and therefore more likely to be in the public domain…which helps who, exactly?

Before you think that this has nothing to do with songwriters or the music business, or nothing to do with film makers and the movie business, think again. Aside from the fact that sheet music and screenplays are included in the “library”, Google has demonstrated a willingness do the same to all creators—for starters, there’s not that much difference between Google Books and YouTube. If you think I’m overstating it, consider this sarcastic quotation (or perhaps telling slip) by one of Google’s lead outside litigators speaking at this year’s SXSW: “It’s really important that we protect the rights of really good looking people in this society.” (Attorney Andrew Bridges of Fenwick & West.) Clearly, the only rights that interest Google are their own.

But Google’s mass misappropriation of the authors’ rights of publicity and the clear implied endorsement of the Google Books mass digitization turns on one thing—Google had the money to create the pile of works—a number of other companies had investigated but abandoned the idea in part because it seemed improper. Google also devoted its massive wealth to litigate authors into the ground because it is that important to them to defeat the rights of creators in general in their quest to commoditize the world’s information–be it your Google+ pictures or Jack Kerouac. (And with librarians leading the charge as weird as that may sound. If you doubt me, engage your librarian or your child’s librarian on the subject of copyright and see how long it is before you feel the need to call for an exorcist.)

Jack Kerouac and the T-Shirt Economy

Judge Chin’s ruling comes down to one “principle”, a message that will ring loud and clear across Silicon Valley (reinforcing what they already believe): Might makes right. And when it comes to fair use for the 1%, nothing says Internet freedom like getting away with it.

Except this time, Standard Oil 2.0 really gets away with it. While every generation of creators expects to fight The Man, Silicon Valley presents The Man 2.0. The Man 2.0 takes Standard Oil’s worst tricks to new lows and performs them at scale.

As antitrust scholar Jim Delong noted presciently in his article Google the Destroyer:

In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….

Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.

So, on the whole, Google can continue to do well even if it leaves providers of its complements gasping like fish on a beach.

If Jack Kerouac wrote in the Google Books world, would he give away the books and get a Levis sponsorship? Where is this generation’s literary hero, a Lawrence Ferlinghetti 2.0? If he’s like most small publishers, he’s gasping like a fish on the beach.

What Hath Google Wrought: Shut Up And Sing

Might makes right also rings loud and clear in the recent GoldieBlox “shut up and sing” litigation against the Beastie Boys. If you don’t know the GoldieBlox story, the company is a toy company founded by a Stanford grad who spoke at TED and whose crowd funded company specializes in toys that empower young women through encouraging them to think of careers in science and engineering.

Yes, groovier than thou. (A tone that saturates the Google Books ruling.)

Parody? What Parody?

GoldieBlox produced a clever commercial for their toys that showed young women using the toy–“GoldieBlox” (itself a play on the Robert Southey children’s story, “Goldilocks” and a registered trademark of Goldieblox, Inc.). Apparently as an afterthought according to the timeline in the commercial production company’s blog , the commercial producer added a re-record of the Beastie Boys’ song “Girls”:

“And we would add key details in Post: Beau’s inspired re-writing of an old, misogynistic Beastie Boys tune, “Girls” would add narrative drive [i.e., contributed to an idea that was already present without using the Beastie Boys] as we assembled the piece, and our resident geniuses at Pico Sound would augment the action with chain-reactive sound design…[wait--didn't the lawyers say it was a targeted parody of Beastie Boys all along? Shouldn't the video's story line have added to the parody?] “ (emphasis mine)

Did they get a license? Did they even try? No, no. GoldieBlox’s blatantly commercial use was protected by fair use, you see—just like Google Books. Even though the creative direction of the GoldieBlox viral video—which is the subject of their strategically filed lawsuit—apparently had nothing to do with the Beastie Boys according to the commercial producers, so is unlikely to have been the parody’s target. The “parody” was added after the fact to make the video more effective with a commercial hook. (GoldieBlox subsequently removed the Beastie’s song and re-released the same video with different music, which buttresses the idea that the video was not the parody as claimed by the GoldieBlox lawyers in the first place.)

But more importantly, GoldieBlox used the name “Beastie Boys” in the title of their viral YouTube video—a use that both misappropriated the band’s right of publicity and also created an implied endorsement of the video. This blatant attempt to free ride on the band’s good name is, to me, where the analysis should start. (Such free riding was not present in the fair use cases selectively cited as precedent by supporters of GoldieBlox.)

A Logical Step from the Illogical Google Books Ruling

So what do you have in GoldieBlox that Google Books foreshadowed? You have a Silicon Valley company deciding that they can just take a song by one of the most successful bands in recent history and do with it as they like in a commercial to sell a product, all the while associating the band’s name with their commercial and their product. Then the company has their massive San Francisco law firm (the 1,100 lawyer Orrick) sue the band to scare them off by filing what is, some think, a fatally flawed lawsuit.

What kind of people do this? Easy answer—the kind of people who don’t respect creators because creators are comparatively weak litigants. People who want to deny creators the ability to collectively protect themselves. Because this is the message of the Google Books case and Google’s influence in the Valley is not to be underestimated.

That is also the message that GoldieBlox sends to anyone who wants to hear it including their customers. The message was most concisely stated about the Beastie Boys by Mary Elizabeth Williams writing in Salon, who could easily have been addressing any author whose work was taken by Google for their books library:

The Beastie Boys spent a better part of their formidable career making it very clear to even the most casual observer that they were not, in fact, a pack of infantile misogynists. But even if they had been, that wouldn’t give anybody – even a company with a positive, girl-powery message – the right to steal from them. “Girls” is the Beastie Boys’ song, and they shouldn’t be expected to hand it over to anybody in some bizarre legal stab at public shaming. That’s not the inventive, original thinking that GoldieBlox appears to espouse. Instead of hiding behind the thoroughly lame excuse that “The song was sexist, ergo we can take it to sell our toys,” GoldieBlox could instead put on its big girls pants and make something awesome now with its creative talent. The company could instead prove that when challenged, it’s crafty. And that’s just my type.

[Ms. Williams had a particularly brilliant coda after GoldieBlox’s nonapology apology to the Beastie Boys:] The whole fiasco is a particularly huge disappointment for those of us who were briefly excited at the thought of a company that would take on the very real and rampant problems of sexism in both toy marketing and in the tech world our sons and daughters will someday be going out into….You know how many of us had been rooting for that? Maybe it doesn’t matter to GoldieBlox, which thanks to all the attention currently has one of the top-selling toys on Amazon. But you don’t create positive change in the world by cavalierly stepping all over the hard work of others.

Most gallingly of all, after lawyering up all over the band just two days ago, GoldieBlox ends its letter with a “Let’s be friends” message. What, no self-absolving smiley thrown in for good measure? If I were the Beastie Boys, I’d tell you to go ahead and hold your breath on that one, GoldieBlox. And I’d say that if you really want to “inspire the next generation” and “be good role models,” you would own up to your mistakes and apologize for them.

But if you’re in the 1%, you don’t want to apologize for anything until you find out first whether you can get away with it.

Choruss Hits A Sour Note, by Rick Carnes and Chris Castle

(This article first appeared in the December 30, 2008 edition of Content Agenda)

In early December (2009, Wired reported that some music labels were talking to universities about building a flat fee for file-sharing into tuition, allowing students to continue downloading music “without fear of legal reprisal”. The fees would be collected by a non-profit organization, Choruss, which would then distribute revenues back to participating record labels.

      The proposed Choruss music service appears to be an idea whose time has passed. While creators work hard to support cooperative business models that respect copyright and economic rights online, Choruss essentially waves a wand of legality over bandwidth-hogging file “sharing” programs without any of the accountability required of legitimate services like iTunes and Hulu.

     Creators are unable to control the distribution of their recordings through file “sharing” on university networks, and Choruss offers nothing to change that affront. Legitimate services such as iTunes have been wildly successful operating within the laws and recognizing the economic rights of artists while offering a great consumer opportunity. If Choruss “legalized” illegal file “sharing”, why would any user ever go to iTunes again? What would happen to the considerable investment already made in legitimate music and video services online, not to mention the network infrastructure that delivers content to consumers?

      The promoters of Choruss would have universities hide a music “tax” in student tuition bills paid by all students—whether they download illegally or not. (This charge would presumably be paid by scholarships, student loans and parents alike.) Choruss promoters rely on granting universities and students a “covenant not to sue” by some rights holders--a nuanced, untested, flimsy, and complex legal strategy that does little to shift the risk of prosecution for copyright infringement away from users. Choruss would have students believe their legal theories magically allow users to continue downloading without fear of consequences—and the nuances of the legal theory will be lost until the student ends up in the courtroom wondering what happened. 

      Why is the theory doomed to fail? Because there will be thousands of copyright owners who do not participate in Choruss. It seems highly unlikely that Choruss will be able to sign up all copyright owners in the universe, or even most. And note—the word “indemnify” does not appear in Choruss’s pitch materials. If the Choruss legal theory is such a great idea, why doesn’t Choruss indemnify the universities and students from any claims? What are the students paying for exactly?

       The gravest concern to creators, however, is that Choruss would have virtually no accountability to the songwriters, artists, musicians and vocalists who fuel the Choruss business model. The program offers no solution to accounting to creators for file “sharing” uses—campuses would merely “estimate” usage. Choruss stands in stark contrast to ASCAP, BMI, SESAC and SoundExchange, all of which spend considerable effort in tracking actual usage of the works they are permitted to license to be good fiduciaries to their members.     

     What will the long-term effects be on the music business? Under the Choruss model, “estimates” of p2p traffic will suffice for “success”—which means that major label records will be rewarded because p2p is a reactive technology, meaning that users typically go to an illegal service to look for a specific track, not to find out about new music. “Estimates” will inevitably reward artists who are getting or have gotten a big marketing push from major labels—not indie or niche artists.

     Choruss seems to plan on extending this plan to ISPs if it is “successful” on college campuses. It is hard to see why any ISP would want to be the collection agent for Choruss when the legitimate music services could easily be wrapped into a broadband or other ISP offering. 

     While legitimate services offer all of the accounting resources and control necessary to run a successful business, Choruss is lost searching for spare change under the cushions in a house of cards.

The Hubris Behind Google's Demotion of Rap Genius (Billboard Guest Post)

Google's attack on Rap Genius proves the company can demote websites when it suits the search giant.

Rap Genius recently came in from the cold after topping musician/lecturer David Lowery's "Undesirable Lyric Website List" in October.  To its credit, the site has so far chosen to negotiate lyric licenses with publishers and rejected litigating a tortured "fair use" defense for copyright infringement.

Rap Genius topped any Google results for practically any lyric search string, so the site was very well-known to music fans. That enviable ranking doesn’t seem dissimilar from search results for Isohunt, the Pirate Bay or Kickass Torrents.

Then last month there were reports that Google had “disappeared” Rap Genius by tweaking its search algorithms -- an existential threat to gutsy startups that many have complained of in the past.

So what was the cardinal sin justifying Google in disappearing Rap Genius? Operating without licenses? No, certainly not that. Openly challenging the music industry? No, not that either.

It would appear Rap Genius did the one thing Google doesn’t permit -- it spoke openly about beating Google at its own game. Rap Genius evidently tricked Google’s search algorithm into ranking it higher than the site should have been absent the manipulation. And for this cheeky violation of Google’s rules -- not a law -- the search giant demonstrated two points in one flex of its dominant muscle.

First, Google does exactly what it has denied doing for years -- bury companies that it doesn’t like. Google is currently denying disappearing challengers before the European Commission (EC) competition commissioner in a heated antitrust investigation.

Also, for years Google has promised creators that it will “demote” the worst unlicensed sites in search results -- sites that are usually ad-supported. Despite Google receiving tens of millions of costly take-down notifications every month, who can tell the difference between the before and after?

EC VP/competition commissioner Joaquin Almunia is investigating Google’s monopoly business practices in Europe. The case has everything to do with companies whose survival depends on “search neutrality” -- fair rankings in Google’s dominant search results. These competitors to Google’s growing number of product lines complain that they often experience the inverse of Rap Genius’ fate -- legitimate companies get a worse ranking than they deserve.

The point is that Google established the rules and Rap Genius apparently hacked them. The punishment? Not a lawsuit from Google’s legion of lawyers, but rather the self-help disappearing remedy -- because that’s how Google rolls.

The principle at work here is simply that Rap Genius offended Google and -- dare I say it -- Google “censored” the site in return. (Rap Genius has since apologized for gaming Google’s search engine in the first place, and this month its links started reappearing in lyric search results.)

This is exactly the behavior that Almunia must weigh in deciding whether to give Google not a first or second chance at an antitrust settlement, but an unprecedented third chance to avoid a government antitrust lawsuit.

Google has claimed for years that it doesn’t profit from piracy, despite driving traffic to pirate sites with Google advertising publisher account numbers. The company acknowledges terminating 46,000 such accounts for piracy violations of its publisher agreements -- 46,000 accounts from which Google presumably received about 40% of the ad revenue prior to termination -- revenue that apparently also was disappeared. And these are just the accounts we know about.

This is why the creative community asks Google to demote pirate sites in search results -- to do to unlicensed pirate sites what Google just did to Rap Genius, which has begun negotiating licenses. Google’s response? No measurable change for several years.

For all its bluster, Rap Genius has demonstrated to Almunia that Google disappears legitimate companies it doesn’t like, and has shown creators that Google is perfectly capable of demoting any site. And Google has shown once again that nothing says Internet freedom like getting away with it.

A bipartisan offender: The Internet Radio Fairness Act

So if the groups Cracker or Camper Van Beethoven spoke out against a direct licensing deal because, say, it might allow record companies to capture the artists’ share of performance royalties, would that exercise of free speech “impede” direct licensing? Do artists now have to check with their legal counsel before making comments on Facebook for fear of being sued under The Sherman Act?  Do the member companies of the Internet Radio Fairness Coalition with their combined $1 trillion plus market cap really need this special government protection? 

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“Five Things Congress Could Do For Music Creators That Wouldn’t Cost Taxpayers a Dime“

1.  Create an Audit Right for Songwriters for Compulsory Licenses:  One of the oldest compulsory licenses in the Copyright Act is the “mechanical license”, the statutory mandate forcing songwriters to license songs that dates from 1909.  The government mandates the license and also mandates the rate that songwriters are paid—from 1909 until 1977 that rate was set at 2¢ per recording.  Although that rate was eventually indexed to inflation leading to the current 9.1¢ minimum, songwriters had to dig out of a deep hole.

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Recording Tips for the 'The Loudness Wars': An Interview With Mastering Great Bob Ludwig

Mastering is the last and probably the least understood step in the audio recording process.

Mastering engineer Bob Ludwig is one of the true living legends of the music business. In addition to being a Grammy winning engineer, he has received many TEC Awards for excellence and was the first winner of the Les Paul Award from the Mix Foundation for setting the highest standards of excellence in the creative application of recording technology.

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Creators see silver lining in adapting to technological changes Read more: Creators see silver lining in adapting to technological changes

Flexibility, transparency, and monetization: these are some of the cornerstone tools for professional artists adapting to the effects of technology on creativity in the 21st Century. The Arts+Labs CREATE conference in Washington, D.C. brought a fresh and even handed look into the world of creators and technology entrepreneurs. Unlike the typical D.C. policy conferences, the sponsors were able to assemble a group that was overweighted with film makers, photographers and other visual artists, songwriters, performers and record producers as well as technology companies--and only a couple of lawyers.


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Can creators call 911?

Sometimes rogue sites actually sell counterfeits directly to consumers using a major credit card. Sometimes they give away the movies or music and sell advertising—often advertising for well-known consumer brands served by one of the major adserving companies. And all of the rogue sites benefit from search engines that indiscriminately drive traffic to their sites. Sometimes the search engine owns the adserving company it drives traffic to.

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