Five Things Congress Can Do to Stop Tens of Millions of “Address Unknown” NOIs

Copyright reform is on the front burner again after the passing of the  Register of Copyrights Selection and Accountability Act by a vote of 378-48.   But there’s another problem the Congress needs to fix that won’t require legislation in the short run:  The mass filing of tens of millions of “address unknown” notices under the archaic compulsory license for songs.

I’m going to assume that readers know the general background on the millions of “address unknown” NOIs filed with the Copyright Office under a loophole in the Copyright Act (Sec. 115(c)(1)).   If that is Geek to you, see my recent paper on mass NOIs for more complete analysis (or previous posts on MTS for the armchair version of the story.   The first distinction to remember is that we are only concerned in this post with song copyrights and not the sound recording.  This story implicates songwriters and publishers, not artists and record companies, and it only applies to the government’s compulsory license for songs, a uniquely American invention.

In a nutshell, Amazon, Google, Pandora, Spotify and other tech companies are serving on the Copyright Office tens of millions of “address unknown” notices of intention to obtain a compulsory license to make and distribute recordings of certain types of songs.  Under what can only be called a “loophole” in this compulsory license, a service can serve these “address unknown” NOIs on the Copyright Office if the owner is not identifiable in the Copyright Office public records.  The Copyright Office stands in the shoes of the “address unknown” copyright owner to receive and preserve these notices.

On the one hand companies like Amazon, Google, Pandora and Spotify say that they can’t find these millions of song owners, while at the same time at least some of the same companies brag about how comprehensive and expensive their song databases are (like Google’s Content ID) or their agents puff up the agent’s own massively complete song databases as “the worlds largest independent database of music copyright and related business information.”  And yet, these same companies and their agents can’t seem to find songwriters whose names, repertoire and contact information are well known, or whom they already pay through their own systems or through their agent.

The Database Double Loophole Trick

Here’s the loophole.  First, the loophole requires a very narrow reading of Section 115(c)(1) of the Copyright Act, a 40 year old statute being applied to NOIs served at a scale the Congress never intended.  If the song owner isn’t found in the public records of the Copyright Office, even if the digital service or its agent has actual knowledge of the song copyright owner’s whereabouts, the digital service can say they are not required to look further.

Even if you buy into this willful blindness, these digital services may not be looking at the complete public records of the Copyright Office.  The only digitized records of the Copyright Office are from January 1, 1978 forward, and my bet is those easily searchable records are the only records the services consult.  That omits the songs of Duke Ellington, Otis Redding, The Beatles and five Eagles albums not to mention a very large chunk of American culture.

The Copyright Office records from before 1978 are available on paper, so the pre-78 songs are still in the public records (which is what the Congress contemplated in the Copyright Act).

The identifiers are just not “there” if you decide not to look for them.  However, it is not metaphysical, it is metadata that exists in physical form.  This is the “double loophole”.

The Double Triple:  New Releases

Another category of song copyrights that will never be in the public records of the Copyright Office in their initial release window are new releases with recently filed but not yet finalized copyright registrations.  The Copyright Office itself acknowledges that it can take upwards of a year to process new copyright registrations.  This allows “address unknown” filers to bootstrap a free ride on the back of Congress during that one-year period.

No Liability or Royalties Either:  Trebles All Round

Once a company serves the “address unknown” NOI on the Copyright Office, songwriters are arguably compelled by the government to permit the service to use their songs.  Filing the “address unknown” NOI arguably allows the service to avoid liability for infringement and also–adding insult to injury–to avoid paying royalties.  If the NOI is properly filed, of course.

In current practice, a mass “address unknown” NOI is usually a single notice of intention filed with a huge attachment of song titles with the required fields, such as this one Google filed for Sting’s “Fragile”, the anthem of the environmental movement (which was clearly filed incorrectly as the song was registered long ago):

sting-fragile-google-noi

The number of mass “address unknown” NOIs being posted by the Copyright Office on an almost daily basis suggests that tech companies now view mass “address unknown” NOIs as the primary way to put one over on songwriters and the Congress, too.  Companies like Amazon, Spotify, Google, Pandora and others are using this heretofore largely unused loophole on a scale that flies in the face of Chairman Goodlatte’s many hearings in the last session of Congress on updating the Copyright Act.

This “address unknown” practice also undermines the efforts of Chairman Goodlatte and Ranking Member Conyers to modernize the Copyright Office.  Indeed, based on the very lopsided vote on HR 1695 the Register of Copyrights Selection and Accountability Actit is clearly the desire of the overwhelming majority of Members of Congress, too.

March Spotify NOI Filings

What Can Be Done?

Congress can play a role in in providing immediate relief to songwriters by stopping the mass “address unknown” NOIs or at least requiring the Library of Congress and the Copyright Office to take steps to verify the NOIs are filed correctly.

At the moment, the government takes away property rights from the songwriters by means of the compulsory license without taking even rudimentary steps to assure the public that the “address unknown” NOI process is being implemented correctly and transparently.

Here are five steps the Congress can take to rectify this awful situation.

  1.  Stop Selling Incomplete Data:  Congress should instruct the Library of Congress to stop selling the post 1978 database until due diligence can be performed on the database to determine if it is even internally correct.  It appears that many if not all the mass “address unknown” NOI filers use the LOC database to create their NOIs.  It is also highly unlikely that this database will include new releases.  Congress can simply instruct the Librarian to stop selling the database.loc-prices-databases
  2.  Stop Accepting “Address Unknown” NOIs With Compressed File Attachments: Congress should instruct the Library of Congress and the Copyright Office to immediately cease accepting “address unknown” NOIs with compressed files as attachments for what appears to be a single NOI.  These compressed files are so large in most cases that songwriter can never uncompress them on a home computer to determine if their songs are subject to “address unknown” NOIs.  Google in particular is a major offender of filing huge compressed files.  Each compressed file contains tens of thousands of song titles.Google March NOIs
  3.  Require Accounting Compliance with Copyright Office Regulations:  Long standing regulations require that anyone relying on an NOI must file mostly and annual statements of account reflecting usage of the songs subject to the NOIs.  The tech companies serving mass NOIs are not rendering these statements and thus fail to comply with the transparency requirements of Copyright Act.  All of the “address unknown” NOIs served during 2016 are out of compliance with the regulations, and all “address unknown” NOIs served in the first quarter of 2017 are likewise out of compliance.  Congress should instruct the Copyright Office to require monthly and annual statements of account be filed with the Copyright Office for anyone who has relied on these NOIs as required by the regulations.  All statements of account should be certified in the normal course as required by the regulations, and made available to the public by posting to the Copyright Office website.
  4. Require the Library of Congress to Create a Searchable Database of NOIs:Congress should instruct the Library of Congress to create a single database maintained online that is maintained by an independent third party and is searchable by songwriters in a manner similar to a state unclaimed property office.  That database needs to be updated on a regular schedule.  Given the size of the compressed files served to date, it is essentially impossible for songwriters to determine if NOIs have been filed on their songs.  This is particularly true as the NOIs are served on an effectively random basis, so even if songwriters were able to search, they would essentially have to search all the time.
  1.  Pay Royalties Into A Permanent Trust Account:  Given that it is highly likely that the mass NOIs filed to date have a significant number of errors, it is also likely that songwriters will become entitled to payment of royalties retroactively if these errors are ever caught.  Therefore, the Congress should require that royalties should be paid to a trust account maintained at the Copyright Office and held in perpetuity like a state unclaimed property office.  Of course, it is equally likely that the song copyright owners will be entitled to terminate any purported license under 17 USC Sec. 115(c)(6).  These payments should be based on actual usage and not black box.  This is another reason why the statements for “address unknown” NOIs should be public.

What started in April 2016 as a trickle of NOIs from a handful of companies has now expanded exponentially.  Based on Rightscorp’s analysis in January 2017, some 30 million “address unknown” NOIs had been filed–and that did not include the dozens of “address unknown” NOIs filed by Spotify in March 2017 alone which themselves likely total over a million songs.

NOI Table
Top Three Services Filing NOIs

April, 2016-January 2017

Number of NOIs Per Service
Amazon Digital Services LLC 19,421,902
Google, Inc. 4,625,521
Pandora Media, Inc. 1,193,346

It is rapidly becoming standard practice for tech companies to try to pull the wool over the eyes of the Congress by leveraging an apparent loophole and they are doing it on a grand scale.

As we have seen with everything else they touch from the DMCA to royalty audits, the tech companies will continue this loophole-seeking behavior until they are forced to stop.  Since no one at the Library of Congress seems to have the appetite to right this wrong, the Congress itself must step in.

Ultimately Congress should fix the loophole through legislation, but in the meantime most of the harms can be corrected overnight by policy changes alone.

@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?”

exposure-bucks

Europe Leads With A Solution to the “Safe Harbor”Problem

Recital 38 of proposed European Commission Digital Single Market reforms:

In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC.

The legacy safe harbors in the U.S. legislation commonly called the Digital Millennium Copyright Act (DMCA) and its European counterpart are a dichotomy:  The law provides a little latitude to reasonable people acting reasonably, but it also provides a smokescreen for those who are trying to fake their way to one of the great income transfers of all time.

Which players are on which side of that dichotomy?  One easy yardstick is the ISPs who participate in the Copyright Alert System and those who don’t.  CAS members have a real commitment to infrastructure, are not in a line of business that is based on commoditizing other peoples value, and seem to have a genuine commitment to staying within the boundaries of the DMCA safe harbors.

And then there’s Google and its wholly owned subsidiary YouTube.  It’s been 10 years since Google acquired YouTube and it’s an even bigger mess today than it was when it was operated as a blatant infringement machine.  But the real risk about YouTube is that Google has shown other powerful multinational corporations that you don’t want to infringe a little–you want to infringe a lot.

Now we can add Facebook and Vimeo to the list of billionaires who profit themselves by hiding behind the DMCA safe harbors.  These others, especially Facebook, are likely to simply point to YouTube and say if you’re going to shut us down, you have to shut them down, too.

And they have a point.

That’s why it’s so refreshing to see the European Commission taking a selective approach to tackling safe harbor abuse.  While I’m sympathetic to the urge to try to abolish safe harbors altogether, I don’t think that’s fair to the good actors in the ISP space.  Wouldn’t you rather have other ISPs point to the good corporate citizens like AT&T, Cablevision, Comcast, Time Warner and Verizon as a model rather than Google and Facebook?  (After BMG Rights’ multimillion dollar victory over MIC Coalition member Cox Communications we have to assume that the industry understands where the boundary is, but time will tell.)

A better starting place for reforming safe harbor abuse might be to identify the bad actors and deny them the chance to misuse the law to commoditize the property rights of artists, among others.  Given the lobbying clout that Google and Facebook can bring to bear in the U.S., we’re probably going to have to wait for the European Commission to lead the way forward as they have with antitrust prosecutions of Google.

It should come as no surprise that nations that value their creators are willing to take on rapacious multinationals even as the Googles and Facebooks desperately try to increase the size of their lobbying footprint on the faces of Europeans.