About the Statement Of Digital Solidarity Petition

If “the devil is in the details”, then the devil destroying over half the value of musicians’ work (and permitting the mass copyright infringement that has generated windfall profits for Silicon Valley corporations) has made his mansion in one particular set of details: section 512 of the Digital Millennium Copyright Act (DMCA).

Last March, musicians’ and composers’ grass roots organizations, unions, rights organizations and industry trade groups came together around the ‘Music Community’ submission to the U.S. Copyright Office (USCO) inquiry on the DMCA section 512, and are now united in calling for the DMCA to be reformed to protect creators.

The DMCA, which was passed by Congress in 1998, was supposed to extend copyright into the digital domain and strike a fair balance between the need to create breathing room for technical innovations in online industries, and the need to protect copyright holders.

However: it was written BEFORE Napster, YouTube, Facebook, etc., and it contains loopholes exploited by tech corporations to hurt creators.  The record industry has declined by more than half since the creation of the DMCA: the tech industry has grown exponentially.

Musicians’ and composers’ groups are now calling for the DMCA to be reformed in order to protect creators, and have united around the Music Community USCO response as the means of doing so. Key objectives of the Music Community USCO response form the basis of the attached Statement of Digital Solidarity Petition.

Yes – the Music Community response is signed by the RIAA, the trade group of the Major Labels. But it is also signed by the indie labels’ trade group, and all musicians and songwriters unions and rights groups; it is supported by all the true grass roots musicians/composers organizations. A support letter signed by 400 artists–indie, major, and self distributed– was submitted to USCO along with the Music Community response.

This agenda is opposed by the anti-artist, tech-company-funded group Fight For The Future.

According to Evan Greer, campaign director of Fight for the Future, and organizer of the RockAgainstTheTPP tour,

“Copyright laws are among the biggest threats to freedom of expression in the digital age…”[1]

Greer believes that,

“The Internet is the best thing to ever happen to creative people and independent artists. We need to fight to defend it from those pushing censorship…”[2]

FFTF labels the Music Community’s, or anyone’s, attempt to assert copyrights as “censorship”, and considers virtually ALL infringing uses of copyright “fair use”. The Google-funded Electronic Frontier Foundation, on whose talking points the FFTF bases its copyright related positions, have have won some cases in some circuit courts—thus making the Music Community’s legislative proposals a matter of some urgency for working artists.

Less than three weeks after the Music Community report was submitted, FFTF, which had never been involved in strike support before, suddenly began supporting the Communication Workers of America (CWA)’s strike against Verizon.

We believe this action and the subsequent decision of FFTF to involve the CWA in co-sponsorship of the RockAgainstTheTPP (Trans Pacific Partnership) tour was a calculated response to the remarkable show of unity in the Music Community USCO document, intended to blunt the impact of the Music Community’s call for pro-artist reform of DMCA by splitting the labor and progressive movements on copyright.

Unable to accomplish such a task through reasoned argument, FFTF appears to have resorted to tactics of association and bait-and-switch:

FFTF’s first pubic interaction with the CWA occurred while the union was locked in a make-or-break strike with Verizon: it’s highly doubtful that CWA or the other unions involved in RockAgainstTheTPP ever had the time to read the fine print on FFTF’s anti-artist agenda.

The artists on FFTF’s RockAgainstTheTPP tour are there to support the tour’s labor, pro-democracy, and environmentalist goals.

None that we’ve contacted have had the time to evaluate the 1000+ pages of the DMCA or to understand the Music Community’s 90+-page response.

We support the labor, pro-democracy, and environmentalist critiques of the TPP. But despite FFTF’s claims that the “Trans-Pacific Partnership… contains problematic copyright provisions that will negatively impact Internet users’ right to freedom of expression”[3], where copyright is concerned, TPP makes NO changes in the current law whatsoever.

Given this fact, FFTF’s political intentions are transparent:

They’re using their association with participating unions, environmental groups, musicians and fans, to manufacture the illusion of consent to a policy that hurts working artists, in order to better position themselves and their tech industry funders for the upcoming domestic congressional fight on copyright/DMCA reform.

The real goals of Silicon Valley have nothing to do with protecting the CWA’s workers, the environment, or the public interestWeakening copyright boosts their bottom line – period.

We don’t believe that’s the cause that RockAgainstTheTPP’s artist, unionist, and environmentalist supporters signed on for.

MusiciansACTION is circulating this Statement of Digital Solidarity Petition[4] in order to give artists, unionists and RockAgainstTheTPP supporters the opportunity to continue their participation in the legitimate goals of the tour, while breaking the illusion of consent to the anti-copyright, anti-artist positions of its FFTF organizers, and standing in solidarity with fellow working artists and with our unions. We hope you’ll sign it.

http://musiciansaction.org/petition

Below please find quotations from the Statement of Digital Solidarity along with more detailed explanations of their meaning:

“Copyright is the workers’ right of recording artists, musicians, composers, and other creative workers.

If you’re a working musician, composer, or recording artist, copyright IS

  • Your constitutionally-based right to ownership[5] of the music YOU create until YOU decide to give or sell or license it to someone else.
  • The ONLY thing preventing politicians you hate[6], film makers whose positions you don’t share, ads for products you don’t support, and corporations you don’t even know from using and profiting from your work without paying you a penny or even asking your permission.
  • What enables songwriters to live, record companies to fund artists’ record budgets and pay non-band members (side-musicians), and indie artists to make back what they spend on their recordings.[7]
  • An artists right to choose. Copyright doesn’t prevent ANY artist from posting their work online for free download or streaming, or donating their work permanently to the public domain.

But the right to choose includes the right to say no.

And underneath all the hype, that right is exactly what EFF/FFTF’s big tech allies are trying to take away.

Is copyright a perfect system?

Of course not.

Like any system, it’s subject to abuse.

But the only system in which an artist can’t ever make the wrong decisions (like signing bad contracts) is one in which we can’t make any decisions at all.

Giving away our rights isn’t the way to ‘protect’ us from our rights being abused or violated.

…Fair Trade protection of our natural and human environment that we demand as the basis for US trade agreements includes the right of working creators to protection from unfair competition with an open, corporate, ad funded black market.

MusiciansAction stands with the unions protesting the TPP: so-called “free trade” ISN’T “fair trade” if US workers are forced into competition with workers who work for next to nothing because their rights to organize aren’t respected.

Nor is “free trade” fair – within the US or outside of it – if creative workers are forced to compete with businesses making our work available for nothing or next to nothing without financial compensation to us or without our consent.

No fair trade can survive in the face of such an open, corporate BLACK MARKET, and our industry is no exception.

“…We support the efforts of the Music Community unions (AFM, SAG AFTRA), and rights organizations (ASCAP, BMI) to restore fair market conditions by reforming the DMCA”

The Music Community’s basic proposals are supported by artists and democratic membership organizations from other media as well.

Why did our unions and rights organizations choose to respond to the U.S. Copyright Office’s inquiry, and take the positions it did? Because their leaderships are elected by and accountable to their members, and those members are demanding justice in the digital domain NOW.

FFTF, by contrast, has never asked working artists what WE think their policy should be. They may claim 1.4 million “members”, but they’re accountable to none. None of these alleged “members” pay dues, none are invited to meetings, and none are permitted to vote on FFTF’s policies or elect its board.

FFTF is run by its board, which includes Google consultant Marvin Ammori and other noted anti-artist advocates, and its board is accountable to its funders. A number of FFTF’s funders hide behind well-constructed shell corporations so we can’t know their identity.

But its not difficult to guess.

https://thetrichordist.com/2016/05/12/list-of-corporations-and-foundations-funding-astroturf-fight-for-the-future-free-speech-graveyard

The Statement of Digital Solidarity petition is sponsored by MusiciansAction, a grass roots organization of, by, and for working artists, dedicated to the achievement of economic justice in the digital domain.

Some of us are union members, some not. Some have been strong supporters of our unions’ positions on other issues, some dissident opponents.

But today we stand united. We’re fed up with Silicon Valley’s attacks. We support the Music Community policies, and we’re thrilled to see our unions and rights organizations finally come together to defend our rights and livelihoods.

“End special privilege ‘safe harbor’ protections for corporate hosting platforms specializing in the delivery of content with ‘red flag’ knowledge of mass infringement.

SAFE HARBORS:

Normally, a business is legally responsible for preventing criminal acts on their premises. As every bar owner knows, if you allow someone to deal coke in your bar, the cops are going to come after YOU, even if you weren’t buying or selling the coke yourself, didn’t make a penny on the deal, or know the dealer’s name.

(in legal terms: the dealer was a third party USING your business, but not directly part of it).

If you whine, “I didn’t know the guy was dealing coke!” very convincingly, the judge might let you off once or twice. But eventually, the judge is going to hold you responsible: there were “red flag” signs that this guy was dealing coke, so it was YOUR RESPONSIBILITY to know.

That’s what “red flag” knowledge means.

Normally, proof that an owner has red flag knowledge of consistent illegal activities on a business’ premises is enough to shut it down.

Instead, Google’s YouTube is a four billion dollar cash cow because of special privilege Safe Harbor protections. The law says that as long as an Online Service Provider (OSP) plays along “in good faith” with the notoriously ineffective (see “whack-a-mole”, below) DMCA takedown process, they are protected from liability, even if a huge portion of their profits are derived from ads posted on (or data mining of information related to) infringing files. Meanwhile, the OSP’s are free to do nothing to reduce infringement in general, and many routinely refuse to stop even known infringers from repeatedly re-posting infringing files.[8]

“End the game of whack-a-mole: reform the DMCA so that  a single take-down notice effects the take-down of all identical files on a site… permanently.” 

Right now, the only thing an artist can do if they don’t want their work posted on a website is to issue a DMCA takedown notice.

But according to the DMCA, each takedown notice only affects that one posting: you have to write a separate takedown notice for every individual infringing file. And if someone re-posts your material a few hours later, you have to start the whole process again.
This game of whack-a-mole has effectively voided copyright protection online for most artists. The solution is to make a single takedown notice effective for ALL identical files on a site—permanently (unless, of course, the takedown notice is challenged by whoever posted the material).

Seems like basic fairness, no? Not to FFTF/EFF.

In order to distract from the very real abuse–legal, artistic and economic–suffered by artists and songwriters, FFTF has invented the phenomenon of “DMCA takedown abuse”.

As evidence that such abuse exists, they offer the huge number of takedown notices filed— in fact, the very proof of the failure of the current system to adequately protect ARTISTSas evidence of the inability to protect uploaders!

Originally, the Safe Harbors were meant to help innovative startups get established, protect the companies building the internet’s infrastructure from liability for transmissions they couldn’t possibly control, and protect law-abiding online companies from liability for mishaps.

The Safe Harbors were never meant to give major corporate hosting platforms a permanent license to profit from a black market, let alone to spawn a whole set of businesses whose very business model encourages infringement.

Yet that’s what Google/YouTube and apologists such as EFF/FFTF have tried to defend with endless rationalizations:

  • Stopping infringement is just too difficult, there are just too many uploads! “Censoring” content will “shut down the internet”!
  • We can’t use automation to screen out identical copies of our work without chilling “free speech” or violating “fair use”!

These claims are nonsense. Google already screens out kiddie porn without “shutting down the internet” or destroying our civil liberties through such “censorship”, and could do so with copyright infringing files if it chose to.

YouTube already licenses Content ID software to particular artists without chilling “free speech” or violating “fair use.”

FFTF lace their literature with ominous proclamations on the alleged “chilling effects” of these takedown notices, and dark innuendos that the efforts of artists to prevent illegal use of their work are somehow a sinister conspiracy to block legitimate free speech. In reality, there is no “crisis”: takedown notices, which actually prove false on challenge, constitute less than .1% of the total issued. And nowhere does FFTF present evidence that that .1% has actually effected the suppression of legitimate free speech.

FFTF misrepresents the Music Community positions: “The copyright industry wants to eliminate the counter-notice process that people can use to fight DMCA takedown claims” (see http://tumblr.fightforthefuture.org/page/5).

Nowhere in the Music Community USCO submission is such a proposal ever made: subjects of false takedown, whether automated or not, would still have recourse available now under the DMCA.

FFTF’s intention in opposing the Music Community’s common sense solution becomes clearer when you look at their own proposal:

They want to make it so that anyone who files a takedown notice that is successfully contested can be sued.

To avoid liability, artists would need to hire a lawyer for each notice, an expense that would place the filing of a takedown notice well beyond what most artists could afford, effectively voiding copyright for the large majority of artists.

But of course, all the rhetoric about free speech and fair use is a smoke screen: voiding copyright is, and always has been FFTF’s whole intent.

“Use the technology to protect our rights – without harming freedom of speech or genuine ‘fair uses’ – this technology exists now, and should be made standard for all major hosting platforms that deliver content and wish to enjoy Safe Harbor protections.”

In a digital environment in which a single artist’s work may be subject to many thousands of repeated infringements, across multiple URLs and multiple platforms, there can be no real effective take-down process without automation.

EFF and FFTF know this, which is why they have opposed automation, in an attempt to frighten consumers into believing that any automated system would violate “fair use”, “free speech”, etc.[9]

If this were 1997, perhaps they’d be right. But its not, and they’re not, and here’s why:

In real “fair use” there are huge differences between the “original work” and the new work which [fairly] “uses” the original work.

For example, the file for a one hour documentary containing a three minute interview in which the song “Nevermind” is heard in the background through a car radio for 4 seconds is REALLY different from the file containing the original studio recording of ‘Nevermind’. Let’s say that the Nevermind:documentary ratio is 1:1000.

Similarly in political satire: lets say you cover a famous song but change the words to satirize the original: the files will be substantially different. Let’s say your satire:original ratio is 50:100.

Now consider the fact that the overwhelming amount of infringement consists of the uploading of files that are 100% identical to the original studio copies. Copy:original ratio 1:1.

Copyright protection software now exists that can tell the difference between a file that is only 1/1000th Nevermind, and a file that is 100% Nevermind by using what is called a ‘ratio test’.

Such software can and should set the bar very high, to avoid any chance that “fair use” is involved: say 90%.[10]

We’re not saying that ratio tests[11] are the only way to protect copyright holders that is both effective and respectful of Fair Use concerns.

But what is clear is that the constant, simplistic claims that such a result is impossible are no more than a cover for people whose intention is to prevent artists from protecting their work online.

FFTF/EFF aren’t really concerned with Fair Use or Free Speech at all. They oppose ANY effort to protect artists’ rights. They use civil libertarian concern for “fair use” and “free speech” only to further a right-wing libertarian politics, which places corporations doing business in cyberspace beyond the rule of law.

The EFF have done their best to kill copyright by convincing the courts that ALL use of our work is Fair Use.

But FFTF/EFF never seem to consider the ways in which the lack of copyright might chill free speech.

What about the free speech and expression – of journalists, musicians, photographers, filmmakers, and of writers/speakers like Dr. Martin Luther King – that was funded and made possible by copyright?

Martin Luther King Jr.’s free speech came at the cost of his life: it was a risk made bearable by the wish–explicitly spelled out in his papers–that in the event of his death, his family could be provided for by the copyright to his collected works. And indeed, that’s how the King family economically survived his loss—by making completed copies of his speeches and videos available at the cost of a few dollars.

But these few dollars were apparently too great a price to pay for the staff of FFTF.

Referring to Dr. King’s plan to feed his family as “censor[ship of] free speech”, they urged their social media followers to celebrate “Internet Freedom Day” by:

“Shar[ing] this video…. Download it, re-upload it somewhere…”

FFTF informed them that:

“Copyright law says that sharing this video is illegal…” but advised them to,“share it anyway.”

Nothing could possibly testify to what is at stake for working creators, and for our society as a whole, more effectively than the obscene sense of entitlement with which Fight For The Future conducted their financial attack on Martin Luther King’s surviving family.

The question of how much speech is “chilled” by the risk of seeing one’s family impoverished doesn’t seem to have occurred to Google’s billionaire board members, seven-figure lawyers or slick publicists. Perhaps it’s a question that FFTF’s upper middle class “non-profit” board members like Google consultant Marvin Ammori have never had to face.

Yet, as readers of his memoirs know, it was a question very much on Dr. King’s mind in the final years of his struggle. Whether or not he would have had the moral courage–or indeed, the ethical right–to go “to the mountain top”, or to share his vision with the American public had he believed that doing so risked abandoning his most basic obligation as a father– to provide for his children–is not one anyone now living can answer.

While few can claim to share Dr. King’s moral courage or the publicly tragic dimensions of his life; many authors, composers, many artists with visions of all types have known something of the agonizing choice between calling and family that he faced. While the labored individual math of that decision will play out differently for each of us, the socio-economic context structuring our choices is what hangs in the balance today.

And the infantile utopianism of “information wants to be free” partisans isn’t helping us make those choices, as individuals or as a society.

FFTF, representing the hegemonic worldview of the most powerful digital corporations, invited comparison with Dr. King’s movement by referring to their campaign to infringe on the King family’s copyright as “civil disobedience”.

Perhaps this was a mistake.

Their swarm of anonymous, disembodied social media followers come off as the cowardly digital lynch mob that they are. Safely protected within the cocoon of their social media echo chamber from contradictory critical thought; not to mention the dogs, batons, and guns of a hostile police force; their calculatedly risk-free clicks fall well short of Hannah Arendt’s definition of ‘action’, let alone the sublime courage of King’s non-violent resisters.

Evan Greer, campaign director of Fight for the Future, pays lip service to the idea that free speech and expression need material support.

She wrote, “I believe creators should be compensated for their work.”[11]

But how, Evan? We can’t all take jobs advocating for the tech industry. How can we sell our work if people can readily get it for free? How can we live if we don’t?

There’s nothing ‘naturally’ inherent in digital technology itself that says things must be so.[12]

It’s human choice, in particular certain lousy court decisions on section 512’s Safe Harbors, that has turned what Congress intended as special protection for nascent innovative tech start-ups into the permanent entitlement of an increasingly arrogant oligarchy.

But the oligarchs don’t create the songs, articles, or books; or make the films, or photographs, or other creative works on which their advertising and data mining wealth depends. Working creators do. And together, we can ask Congress to restore balance to the DMCA, and thus a fair market for our work.

We don’t need to end ALL infringement in order to restore a fair market – infringement has always been there, and always will be. We do need to start holding major corporate hosting platforms that profit from mass infringement legally accountable for the damage they’ve done.

The greatness of American popular culture has always been its openness to participation by people from all social strata, including musicians who can’t afford to make records if they’re not paid, journalists who can’t self finance their investigations, film makers who can’t make another film if they don’t license the one they just edited…and public speakers from working class backgrounds… like Dr. King.

It is difficult to stop ideological partisans like FFTF from carrying out tasteless social media attacks like the “Internet Freedom Day” mass infringement of the King family’s copyrights described above.

But major corporate online hosting platforms which knowingly aid and abet infringements – and which have the means to prevent them but choose instead to boost their bottom line – do not deserve the blessing of our society, and should lose the special privilege of Safe Harbor protections.

We’ve had enough of Silicon Valley front groups’ bad faith polemics. We’re joining with our unions, rights groups, and grass roots organizations to fight for OUR future, and to speak OUR truth to FFTF’s attacks on our livelihoods and industry.

– Marc Ribot for MusiciansACTION

(Edited by Marilyn Carino)

——————————-

MusiciansACTION is a grass roots organization of, by, and for working artists, and dedicated to the achievement of economic justice in the digital domain.

Website: http://musiciansaction.org
Emil: info@musiciansaction.org

 

ADDITIONAL INFORMATION: 

https://thetrichordist.com/2016/04/02/fight-for-the-future-of-corporate-astroturf-ripping-off-creators

https://thetrichordist.com/2016/05/17/target-next-eff-gets-called-out-on-its-close-ties-to-google-and-surveillance-state

https://thetrichordist.com/2016/05/01/anti-copyright-fight-for-the-future-and-their-1-grassroots

https://thetrichordist.com/tag/fight-for-the-future

http://illusionofmore.com/how-to-protect-your-digital-rights-from-the-tpp

https://thetrichordist.com/2016/05/02/astroturf-fight-for-the-future-received-almost-100k-from-company-based-in-mini-industrial-park

https://thetrichordist.com/2016/05/13/astroturf-fight-for-the-future-is-toast-anti-copyright-protest-gets-9-rsvps-on-facebook

 

NOTES: 

[1] https://www.fightforthefuture.org/news/2016-04-04-nearly-100000-internet-users-call-for-copyright

[2] ibid

[3] Internet activists stand in solidarity with striking Verizon workers
FOR IMMEDIATE RELEASE April 13, 2016

Contact: Evan Greer, 978-852-6457, press@fightforthefuture.org

[4] http://musiciansaction.org/petition

[5] Although there is something vaguely ‘market liberal’ sounding about the references to ‘ownership’ and ‘fair markets’ in this discussion – and the concept of ownership of the products of one’s labor is, indeed, one tenet of philosophical liberalism — this concept is also the legal basis of unionism in our society: there can be no ‘collective action’ without the prior assumption of individual ownership of our labor and its creations: we can’t ‘bargain’ over or ‘sell’ to management what we don’t first own, or aggregate power into unions we don’t possess in the first place as individuals.

[6] Live use of published work is usually legal, even if you don’t agree with the politician. Recorded use of an artists work is another question.

[7] Sure artists make money touring/selling merch: some always have: but songwriters and many new artists don’t, and touring artists used to share in ALL the profits our recordings generated: why should we give up that right just because a bunch of Silicon Valley billionaires decided to make the mass infringement of our copyrights their business model?

[8] YouTube claims that its “Content ID” software addresses these concerns.

But the software is ineffective, according to the major label artists who receive it for free…And what kind of business makes its suppliers PAY – through the lousy contracts most artists must sign to get Content ID software – for the safe, legal business environment that should have been their right in the first place?

Sound like a protection racket?

Why, other than the fact that this is the USA and YouTube’s parent corporation is valued at 550billion +, is this even legal?

[9] “Taking down content from the Internet en masse doesn’t benefit artists and individual creators…”

“[the DMCA is]….being used by companies that fail to account for Fair Use.” http://tumblr.fightforthefuture.org/page/5

[10] J. Devlin Hartline (Assistant Director, Center for the Protection of Intellectual Property George Mason University School of Law) notes: “Though not explicitly endorsing notice-and-staydown, the EFF*** thinks it’s entirely consistent with fair use so long as (1) the content at issue has already been subject to one uncontested takedown notice, or (2) the content at issue is at least a 90% match to a copyrighted work. …supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.”

*http://cpip.gmu.edu/2016/02/03/attacking-the-notice-and-staydown-straw-man

**https://www.eff.org/pages/fair-use-principles-user-generated-video-content

[11] https://www.fightforthefuture.org/news/2016-04-04-nearly-100000-internet-users-call-for-copyright

[12] Of the many falsehoods perpetuated by tech industry apologists, the myth of ‘technological inevitability’ is perhaps the most pernicious. The ‘technological unemployment’ that has accompanied this and other advances in production is, indeed, inevitable. We may shed a tear for the legendary John Henry, but we know he had to die. He couldn’t sustain his race against the machine, and no-one on a train today misses the hand-driven spike beneath their rails.

But that doesn’t describe the ad/data mining tech industry’s attack on artists. Artists/composers still create music. People still listen to the music we create…now more than ever. Our music still produces profits, now more than ever: just not for us.

This isn’t ‘technological unemployment’: its good, old fashioned exploitation. Its wrong, and it needs to stop.

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