While the latest EU copyright directive shows signs that Europe is finally turning a corner when it comes to supporting creators’ rights, Google is winning the war in the US, judging by the abrupt removal of the Copyright Office’s Maria Pallante. The timing of her “reassignment” certainly seems more than suspect, coming hot on the heels of Pallante weighing in against the ludicrous idea of “100% licensing” as well as opposing the “unlock the box” proposal – both of which would benefit Google.
Pallante, who had headed the CO since 2011, was known among creators for being fair and balanced. Last year, she issued a report called Copyright and the Music Marketplace, which listed fair compensation to music creators as its first guiding principle. “She was a champion of copyright and stood up for the creative community,” singer-songwriter Don Henley told the LA Times. “Which is one of the things that got her fired.”
She understood that copyright rules and regulations in the digital era needed updating – considering that the last update was 20 years ago, when most of us used dial-up, and Google and Facebook didn’t exist. When songwriters pointed out that the Department of Justice’s “100% licensing” ruling, requiring ASCAP and BMI to license all of a song, even when they only represented part of it was unworkable, she listened. BMI Rate Court Judge Louis Stanton agreed, and so blocked its implementation.
Not soon after, Pallante was demoted by the new Librarian of Congress, Carla Hayden, to a post where she wouldn’t have contact with members of Congress, told to move out of her office and, according to people close to the situation, locked out of her computer. Pallante resigned three days later.
The creative community was in shock – this was unprecedented. Many argue that it simply illustrates how far and how deep Google’s lobbying tentacles reach, and the power they hold in legislature.
It also illustrates why the Library of Congress should not be in charge of the CO. “If the person at the top of the Library of Congress is against copyright, then being the manager of the Copyright Office is devastating,” said songwriter and publisher Dean Kay. Pallante publicly supported a congressional effort to remove it from the LoC, a position that probably contributed to her dismissal.
“The librarian wants free content, and the copyright office is there to protect creators of content. They are diametrically opposed ideologies,” Henley continued, adding that Hayden “has a long track record of being an activist librarian who is anti-copyright and a librarian who worked at places funded by Google.”
Meanwhile, Google-funded astroturf group Public Knowledge – who have conducted an incessant attack on the CO, accusing it of “pro-creator” bias (imagine that, a copyright office listening to those who rely on it for survival) – are rubbing their hands, and have already announced that this is a perfect time replace Pallante with one of their own anti-copyright representatives. (Of course they never admit to being anti-copyright, just anti any attempt by rights holders to exercise those rights.)
So what can we as songwriters do? The music industry operates in a digital world, largely without borders, so what happens in the US affects all of us – not least as it’s the biggest music market in the world.
Firstly, we should call out Google shills such as Public Knowledge on social media whenever they pretend to be independent champions for freedom of speech. In fact, copyright is the engine of free expression (https://www.theguardian.com/music/musicblog/2012/apr/19/copyright-freedom-speech). “Too many observers posit a false division between the interests of the public and those of working creators, and many of those who do so are seeking to defend exploitative practices that eliminate the need to obtain the permission of the creator,” says Musicians Action, a US-based grass roots organisation comprised exclusively of working musicians.
Secondly, debunk at every opportunity the fallacy that enforcing the rule of law online would somehow “break the internet”. The Copyright Office has reopened the DMCA Takedown and Safe Harbour debate, including the proposal of a “notice-and-stay-down” system, asking for comments from “interested parties”. It also “invites parties to submit empirical research studies assessing issues related to the operation of the safe harbor provisions on a quantitative or qualitative basis.” You can read more about how to take part here: https://torrentfreak.com/u-s-copyright-office-undecided-about-future-of-dmca-takedowns-161114/
Thirdly, push for the temporary Pallante replacement to become permanent. Musicians Action, a US-based grass roots organisation comprised exclusively of working musicians, recognises Karyn Temple Claggett, who has been appointed as the acting register, as an “experienced, capable, and even-handed public servant”.
Finally, and this is going to be a bitter pill to swallow for many of us, engage with the incoming US administration. Some believe that a president Trump would be a lot more creator-friendly than the Obama administration, which employed a number of people closely connected to Google, and had a very porous firewall towards the tech industry. The head of the Antitrust Division, Renata B Hesse, a former outside lawyer for Google is a driving force behind the 100% licensing position at the DoJ (unsurprisingly, it’s appealing Stanton’s ruling).
The Internet Association, which includes Spotify, Pandora, Google, Facebook, Amazon and Netflix, have already got on the band wagon, publishing an open letter to Trump that offers “a roadmap of key policy areas that have allowed the internet to grow, thrive, and ensure its continued success”.
If this sounds reasonable, music creators will most likely spit out their morning coffee when looking closer at the specific proposals they ask Trump to support, which include “compulsory licensing and vigorous oversight of consent decrees” – both of which are largely responsible for the complete undervaluing of recorded music, in particular for songwriters. If you can’t say no, you have no bargaining power, and it’s a race to the bottom.
It also calls for Trump to “modernise the US Copyright Office”, ensuring that its technology “advances the goal of accessibility of works” – in other words, don’t get in the way of the likes of Google scanning all the books in the world without permission. It also wants him to support copyright safe harbors, in order to not “chill innovation and free expression online”.
Music creators exercise free expression and innovate every day. Let’s make sure legislators are reminded of that when they reform copyright in the coming year.
Some further reading: https://artistrightswatch.com/2016/10/26/musicanswersnow-who-fired-maria-pallante/