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Internet Service Providers Must Be Forced to Help Music Industry, Says U2’s Band Manager

SAN FRANCISCO, September 7, 2010 – U2’s band manager Paul McGuinness has once again lit up the debate over who and what’s responsible for the decline of the music industry. In the August edition of British GQ, McGuinness declares: “I am convinced that ISPs are not going to help the music and film industry voluntarily. Some things have got to come with the force of legislation.”

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SAN FRANCISCO, September 7, 2010 – U2’s band manager Paul McGuinness has once again lit up the debate over who and what’s responsible for the decline of the music industry. In the August edition of British GQ, McGuinness declares: “I am convinced that ISPs are not going to help the music and film industry voluntarily. Some things have got to come with the force of legislation.”

McGuinness made the comment in a 3,400-word essay entitled “How to Save the Music Industry.”

"I'm sure the people running ISPs are big music fans. But their free-music bonanza has got to stop. That will happen in two ways: by commercial partnership, with deals such as Sky Songs' unlimited-streaming subscription service; and by ISPs taking proportionate responsible steps to stop customers illegally file sharing on their networks," writes U2's band manager Paul McGuinness in British GQ's August edition

The debate he has stirred up is worth paying attention to since it sounds as if it might be replayed on Capitol Hill in upcoming months.

In an August edition of British GQ, McGuinness renewed a January 2008 call for legislative bodies to mandate a “Three Strikes” approach to policing and curbing music piracy on the internet. France adopted such legislation last Fall, but has yet to start enforcing the law. The scheme basically gives Internet Service Providers’ customers two warnings for their allegedly infringing activities until they are cut off from the internet for a set period of time. In France, the period can last up to two years.

This three strikes approach has been controversial among policy makers around the globe because of privacy and due process concerns, not to mention the costs that it imposes on ISPs. Most recently, the effort to impose more responsibility on internet intermediaries has been hotly debated as bureaucrats around the world tried to implement such measures in the Anti-Counterfeiting Trade Agreement, which is scheduled to become final by the end of the year.

A recently-leaked document shows that the proposal has been dropped. Nevertheless, the Recording Industry Association of America’s President Cary Sherman told CNET this August that the Digital Millennium Act “isn’t working.”

Sherman told CNET that it might be necessary to enact new legislation to better address the piracy on the internet that continues unabated. U2’s label is Universal, a key member of the RIAA.

McGuinness first stirred the industry and the tech world up in January 2008 when he delivered an incendiary speech at the Midem Music Convention, the annual music conference in Cannes, wherein he denigrated Radiohead’s online pay-what-you-want music experiment with its album ” In Rainbows,” as well as Silicon Valley venture capitalists and technologists, calling them the makers of “burglary kits.”

The long-time band manager did call on the technology and music industries to work together on new music distribution and revenue-splitting models. But he also called the “Safe Harbor” provisions that protect Internet Service Providers in Europe and the United States from being responsible for the infringing activities of their users a “Thieves Charter.”

Music industry veterans have responded online to McGuinness’ piece in the past few days by pointing out that it’s far too simplistic to blame piracy solely for the recorded music industry’s downward spiral.

Instead, their message is: “It’s the licensing, stupid.”

“In order to get others to launch more music services, the industry must first adopt simple and sensible licensing policies that invite and encourage entrepreneurs to build businesses around the sale of (or access to) music,” writes venture capitalist and former eMusic CEO David Pakman in a recent Midem blog post. “It is all too convenient to dismiss those who disagree with Paul’s ‘The ISP’s must police the Internet’ solution to the music industry’s ills as an angry mob.”

Jim Griffin, managing director of the digital entertainment consultancy OneHouse LLC, also responded to McGuinness’ August piece by pointing to the industry’s need to focus on collective licensing.

He points to an analysis by economist Will Page at PRS for Music that shows that revenues for the international licensing of music is increasing as revenues for sound recordings (CDs, etc) continue to decline.

“As always, progress will be slow, but increasingly it comes down to this: We need to make it much faster, easier and simpler to pay for music. When it is, more will,” writes Griffin in a recent online note responding to McGuinness’ piece. “This requires a clear enumeration of rights, a transparent and accurate database of who owns what, specified by country, for both sound recording owners and songwriters.”

Sarah Lai Stirland was Contributing Editor for BroadbandBreakfast.com until April 2011. She has covered business, finance and legal affairs, telecommunications and tech policy for 15 years from New York, Washington and San Francisco. She has written for Red Herring, National Journal's Technology Daily, Portfolio.com and Wired.com. She's a native of London and Hong Kong, and is currently based in San Francisco.

Copyright

Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights

Derek Shumway

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Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright

Jericho Casper

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Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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Fair Use is Essential But its Enforcement is Broken, Says Senate Intellectual Property Subcommittee

Elijah Labby

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Screenshot of Grammy-winning recording artist Yolanda Adams from the hearing

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

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