Tag: David Lowery

We’re All In It Together: Independents File “Friend of the Court” Brief in Google v. Oracle

 

Helienne Lindvall of the Ivors Academy, David Lowery of Cracker and Camper Van Beethoven, Blake Morgan of #irespectmusic and the Songwriters Guild of America joined in a friend of the court brief supporting Oracle in Google’s appeal of its losing argument in a copyright case involving Google’s taking of Oracle’s Java code without a license.  Oracle won the case on two different occasions at the Federal Circuit, but Google appealed to the Supreme Court which of course is their right.

I got to co-write the brief as co-counsel with my friend Charles Sanders, long time counsel for SGA.  You can read it here.

SCOTUS Brief Cover Page

Oracle had nice things to say about our brief:

There will also be numerous Amicus Briefs filed shortly on the side of strong copyright protection for expressive and creative works including computer software. One brief, filed by the Songwriters Guild will state: “There are untold riches in running the Internet of other people’s things.” Only a songwriter could so eloquently capture the essence of this case, and Google’s business practices. We wish we would have thought of that line ourselves, but we didn’t, so we repeat it here (with credit and permission).

One of the accomplishments in our brief was that we were able to bring the words of artists and songwriters like Zoë Keating, Kerry Muzzey and the indefatigable artist advocate and five-time Grammy winner Maria Schneider before the Court.  All of them have written eloquently of the reality of being an independent up against the biggest corporations in the world.  We were happy to put their voices before the highest court in an important copyright case.

Stay tuned.  Google’s reply brief is coming soon and oral argument is scheduled for March 24.

Save the Date: User Centric: Streaming Gentrification or Fairness at SXSW

I’m pleased to be moderating a panel on user-centric streaming royalties with some of the smartest people in the music business at SXSW on Thursday, March 19 at 3:30.  Helienne Lindvall from Ivors Academy, David Lowery of Cracker and Camper Van Beethoven and Portia Sabin from the Music Business Association will join me in a discussion of this important topic that seems to pick up support daily.

Please put us on your calendar if you’re coming to Austin for the conference!  We really want this one to be collaborative with the audience.  Watch this space for further updates.  If you are new to the topic, a good place to start is the “ethical pool” post from last year.

SXSW User Centric
https://schedule.sxsw.com/2020/events/PP103941

@katenash Shows that Permissionless Innovation is Just A Trumped Up “DMCA License”

Small business people dealing with big business people always have the same fear–what if they just stiff me.  You know going in that there are some big businesses that simply factor into their financials that the businesses will get away with stiffing a percentage of their contractors with claims of unsatisfactory work daring the small business to sue.  Claims that may be trumped up, so to speak.

Some–not all surely, but some–Silicon Valley companies have taken this “pay them when they sue” mentality to it’s logical conclusion under the guise of the faux “DMCA license” based on sheer bargaining power.  At least the real estate developer stiffing contractors on trumped up claims did actually hire the contractor with a promise to pay.

The Silicon Valley version of “pay them if they sue” is wrapped in the cant of Valley Boy catechism and the leap of faith to “the machines made me do it” or “disruption” resulting in the gospel of “permissionless innovation”.  That’s the trumped up theory that allows the “disruptor” to just take the contractor’s labor and materials without negotiating a contract or paying a dime and then saying “so sue me” and my $20 billion valuation.

UK artist Kate Nash recently called out Snapchat in a viral tweet for profiting themselves from a trumped up license

David Lowery called out Facebook for essentially doing the same thing starting the “#F*CKTHEZUCK” hashtag.

Remember–Snapchat and Facebook, two massive Silicon Valley darlings, have NO licenses and REFUSE to negotiate.  (Google does get licenses for some of its platforms like YouTube but is also busily serving millions of NOIs on the Copyright Office to use songs without paying royalties and also gaslighting the UK music industry with yet another meaningless “voluntary” code of conduct for the billions of takedown notices Google receives for search that Google refuses to fix.)

Kate Nash has put her finger on the key factor in the greatest income transfer of all time–it’s not that the music is free because it is without value, it is free because it is stolen using a trumped up legal theory based on loophole seeking behavior in a legacy statutory construct.  Nobody ever intended for the “safe harbors” to be used to trump up a nonexistent “license held in place by unequal bargaining power.

As Beggars Group Chairman Martin Mills said in his keynote at Canadian Music Week:

[An] imbalance I want to talk about is the safe harbour provisions, and similar terms in other countries. They were introduced, with some foresight, by the legislators in the USA framing the DMCA, to provide a notice and take down procedure for unlicensed content. But the legislation has been distorted into a protective wall behind which cyberlockers and torrent sites, and companies such as YouTube and Grooveshark, operate.

The original intent was to protect reasonable people acting reasonably from falling foul of the law, to enable the digital economy to grow without “ gotcha “ law suits against ISP’s who had no idea that their networks were being used for infringement. They were not intended to provide fortress walls behind which companies could build billion dollar businesses on content that had not been cleared. They were never intended to become a de facto “ licence “.

Kate Nash said it best:  “But where’s my paycheck?”

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