Saturday, June 27, 2020

I Say It Here: As Predicted, EFF and Durie Tangri to Defend Internet Archive To Keep the Massive Infringement Flowing | MUSIC • TECHNOLOGY • POLICY


According to Silicon Valley mouthpiece Torrentfreak, guess who is going to be defending the Internet Archive and the eponymous Mr. Kahle in their massive copyright infringement suit from publishers?

The EFF has revealed it is teaming up with law firm Durie Tangri to defend the Internet Archive against a lawsuit targeting its Open Library. According to court filings, the impending storm is shaping up to be a battle of the giants, with opposing attorneys having previously defended Google in book scanning cases and won a $1bn verdict for the RIAA against ISP Cox.

So…I have to take a little gloat here.  I don’t do it often, but sometimes it’s more worth pointing out than others.

MTP and ARW readers may remember a recent post I did giving the over/under on what might happen with the publishers lawsuit against Mr. Kahle’s latest assault on creators (Publishers Sue Internet Archive over Fake “National Emergency Library”):

This is a very Googley case so expect to find the usual suspects showing up to defend the Lost Cause if they’re not too busy holding on to the elite’s other piggery, Section 230 of the Communications Decency Act.  ARW readers will remember that Spotify lawyer Christopher Sprigman and his mentor Lawrence Lessig were lead counsel on the losing side in Kahle v. Ashcroft (later v. Gonzales) which was Mr. Kahle’s unsuccessful challenge to the elimination of the renewal requirement under the 1992 Copyright Renewal Act in an attempt to revive that trap for the unwary. Professor Sprigman continued carrying Kahle’s water as a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the registration artifact (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).

Although the docket for the publishers’ case against the Internet Archive doesn’t reflect a lawyer for the Internet Archive as yet, it would not be surprising to see these names crop up, not to leave out Daralyn Durie who has repeatedly led the charge against authors, artists, and all the other creators that Google chews up and spits out.  Ms. Durie and her colleague Joseph Gratz proudly screwed over authors in the Google Books case with this kind of Orwellian logic according to Business Week:

“Google attorney Daralyn Durie 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.”

Judge Chin, however, wasn’t buying this line of reasoning–which could easily have been summarized as “If it please the Court, Google would like to get away with it.”  Because after all, “nothing says freedom like getting away with it” and we know that Google is all about Internet Freedom.  We’ve never been too sure what “Internet Freedom” means, but it apparently includes attacking creator organizations (including unions).  According to Business Week, “[t]he judge agreed that Google is ‘hoping that individual authors won’t come forward.’”

This is the kind of maneuvering we can expect (and don’t forget that Ms. Durie led the charge against the Beastie Boys on behalf of one Goldieblox in its 15 minutes).

Right on cue, (at least according to Torrentfreak), this time the lead lawyer is Mr. Orphan Works himself, Joseph Gratz.  Mr. Gratz is a man who appears to have been such a strong believer in the importance of orphan works that it looks like he registered the domain name back in 2005 when all the Google apparatchiks were aflutter over the prospect of the failed orphan works legislation.  And it also looked like he parked the domain on the EFF’s servers.  (Unclear who owns it now as the registry info is not readily available through the Network Solutions WHOIS as of today.)  You know, noncommercial uses and all that.

orphanworks com p 2
orphanworks com registry

So while Torrentfreak would like to bill this litigation as a clash of the titans, it’s actually more like a clash of artists with those who consistently work to undermine their rights and drive the value of their works to the largest corporations in commercial history. You got your running dogs and your useful idiots.  I leave you to decide which label best applies here.

As the Goldieblox case demonstrated yet again, these lawyers and their clients didn’t give a rats patootie about what MCA stood for, and they also seem to have a perverse yearning to grind the world’s authors into tiny bits (aka keywords and phonemes).  When someone always seems to have the wrong side of the case over years and years, you have to believe it’s because they like it that way.  Imagine if they devoted their lives to doing good instead of the other thing.

Don’t forget–Mr. Kahle also bought up a bunch of sound recordings that he intends to digitize without permission from anyone and distribute in a blatantly anticompetitive manner.  These people just can’t seem to bring themselves to miss out on a chance to screw as many artists as possible.

Oh, and one more thing.  San Francisco readers take note–the EFF lawyer who is running against Speaker Pelosi can give you a crisp explanation of this one, I’m sure.


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