Wednesday, July 29, 2020

Congress Should Investigate The Monopoly Power of Weaponized Fair Use | MUSIC • TECHNOLOGY • POLICY

The U.S. Congress has finally gotten around to examining the monopoly power of Google, Facebook, Amazon and Apple.  We will no doubt hear many stories of how these companies promote or restrict competition, exploit slave labor in China, run sweatshops in the U.S. and of course control the media message for political candidates.  We will hear that the CEOs walked five miles to school backwards in the snow, and so on and so on, the usual gruel of lobbyists serving up the latest batch of lies hot from the oven of grift.

But what we won’t hear is how companies like Google use their monopoly power to drive down the value of copyright and the principal way they do it (aside from outright lying) is by manipulating exceptions to copyright and especially fair use.  Google is doing it right now in front of the U.S. Supreme Court in the fair use case against Oracle.  So while you may think that Oracle is a huge corporation, they aren’t to Google and that means Google treated them the same way that they treat artists and songwriters:  Rob them blind and dare them to sue against Google’s weaponized version of fair use.

Weaponized fair use is extremely harmful and is the opposite of the purpose of copyright.  Intellectual property is the seed corn of innovation and copyright is no different.  Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is, in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.

Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Google has used its unprecedented online footprint to dictate the terms of the market for creative works.  By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model.  It’s so much of a business model–the antithesis of the public policy purpose of fair use–that Google lobbyists the CCIA refer to fair use as the bedrock of the “fair use industries.”

Look, it’s free speech…look it’s an industry.  For Google, fair use is an empty vessel that Google and its lobbyists fill with the message of the hour.

But when you connect this business model to the supercharger of Google’s monopoly, the power of the monopoly search engine increases exponentially.  Particularly when so few can challenge Google’s stranglehold on copyright.  And it just encourages the others (like Facebook and even the Pirate Bay) when they see Google crushing competition and bending the creative community to their will.

Congress should explore Google’s “catch me if you can” business model of weaponized fair use.  Not everyone can afford to go toe to toe with Google in the Supreme Court, and we all stand in Oracle’s shoes as they battle the Leviathan of Mountain View.




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