The Transparency in Music Licensing and Ownership Act: The Domesday Book Meets A Unicorn

Americans are freedom loving people and nothing says freedom like getting away with it.

Long Long Time, written by Guy Forsyth

Longtime PRO opponent Rep. Sensenbrenner introduced a bill entitled “The Transparency in Music Licensing and Ownership Act“, a piece of work that is Dickensian in its cruelty, bringing a whole new meaning to either “newspeak” or “draconian,” take your pick.  It’s rare that the Congress can accomplish the hat trick of an interference with private contracts, an unconstitutional taking and an international trade treaty violation all in one bill.  But I guess practice makes perfect.  And since the MIC Coalition gave the bill a rousing cheer followed by a heaping serving of astroturf, we should not be surprised.  (Read the bill here.)

While this legislation currently applies only to songs and sound recordings, other creators should not feel that they’ve dodged a bullet.  I hear that the House Judiciary Committee staff is planning on closing the loop and making all copyright categories subject to the same “register or lose it” approach favored by Lessig, Samuelson and their fellow travelers.  If you thought that we are in an era of the triumph of property rights, that must be a different Congress you’re thinking of.

The bill perpetuates the myth of the “global rights database” that no one who understands the complexities believes will ever be created.  It sounds logical, right?  We have county recorders for real estate, the DMV for cars, why not a database for music?

That is an 11th century idea being welded onto a 21st century problem, the Domesday Book meets a unicorn.  The problem isn’t knowing who owns a particular work which evidently is either what they believe or want you to believe.

The problem is that the users don’t want to seek permission or beg forgiveness, either.  They want to get away with it.  This bill demonstrates that unassailable fact in colors bold as the Google logo.

Think about it–by the time you finish reading this post, 1000 songs will be written and 500 songs will be recorded somewhere out there in the world.  Or more.  (Not to mention photographs taken,  paintings painted, chapters written and so on.)

Do you think that songwriters around the world are thinking, now I know what lets do, let’s rush to go register that new song in the U.S. Copyright Office–in the database, the registration section, the recordation section?  Otherwise, I’ll never be able to afford the lawyer to sue Spotify if they don’t pay me.  I don’t think they’re thinking that at all and are about to fall into the MIC Association’s trap for the unwary.  Why the MIC Coalition?  We’ll come back to them.

mic-coalition-no-npr
MIC Coalition Members

In a nutshell, the bill requires the extraordinarily heavy burden of requiring all songwriters and recording artists (or their publishers or labels)–all, as in the entire world seeking to sue in the U.S., not just the US writers–to register numerous fields of data in a yet to be created database if they plan on suing for statutory damages:

[I]n an action brought under this title for infringement of the exclusive right to perform publicly, reproduce, or distribute a nondramatic musical work or sound recording, the remedies available to a copyright owner [ANY copyright owner] that has failed to provide or maintain the information [required] shall be limited to…(A) an order requiring the infringer to pay to the copyright owner actual damages for the public performance, reproduction, or distribution of the infringed work; and…(B) injunctive relief to prevent or restrain any infringement alleged in the civil action.

That means if you haven’t undertaken the formality of registering in this new database, then the user has no exposure to statutory damages and will not have to pay the victorious songwriter or artists attorneys’ fees.  And this new safe harbor applies apparently even if that songwriter or artist has filed a copyright registration under existing law.

There is nothing in the bill that actually requires the protected class to actually look up anything in this new database, or actually be in compliance with existing statutory licenses (such as the webcasting or simulcasting licenses).

So who is in the new protected class entitled to the Nanny State’s protection from those collusive and pesky songwriters and artists?  Let’s look at the victimology of the “ENTITLEMENT” paragraph.

Well, actually, there’s no “ENTITLEMENT” paragraph for the entitled, it’s actually called “APPLICABILITY” (see “newspeak”, WAR IS PEACE, etc.).  The connected class includes five different categories of cronies.

First, the defined term “An establishment” gets the new even safer harbor.  “Establishment” is a defined term in the Copyright Act (in Sec. 101 for those reading along at home):

An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.

Like the members of this organization, the National Retail Federation:

mic-coaltion-8-15 Retailers

Then another defined term “A food service or drinking establishment”.  Kind of like these people:

mic-coaltion-8-15 Booze

That is, the National Restaurant Association, the American Hotel and Lodging Association  (aka those who put their kids through college thanks to SXSW) and their suppliers, the American Beer, Wine and Spirits Retailers.

Next, “A terrestrial broadcast station licensed as such by the Federal Communications Commission”.  I guess that would include the National Association of Broadcasters, iHeart, Salem and Cox (which of course raises the question of whether this entitlement also applies to Cox’s Internet group), kind of like these people:

mic-coaltion-8-15 radio

Don’t forget “An entity operating under one of the statutory licenses described in section 112, 114 [webcasting and simulcasting], or 115 [mechanical licenses].”  Note–not that the statutory license applies to the particular song or sound recording in the way it is used that is the subject of the lawsuit, just that the entity is operating some part of its business under one of those licenses regardless of whether the service that is the subject of the lawsuit operates under one of these licenses or not.  (Pandora’s on-demand service compared to webcasting, for example, could be out of compliance with its sound recording licenses but claim the safe harbor because it is “operating under” one or more of the statutory webcasting license in the radio service or the statutory mechanical licenses for songs.)

It appears that would include these people:

mic-coaltion-DiMA Members

and don’t forget these people who are DiMA members and need the government’s protection from songwriters and artists:

Amazon logo

white apple logo

Microsoft Logo

Spotify_logo

And then I guess you could throw the Consumer Technology Association and CCIA in there, too.

So I think that’s everyone, right?

Last but not least there’s this group as “belt and suspenders”:

An entity performing publicly, reproducing, or distributing musical works or sound  recordings in good faith as demonstrated by evidence such as [i.e., but not limited to] a license agreement in good standing with a performing rights society or other entity authorized to license the use of musical works or sound recordings.

Note:  The license need not be for the musical works or sound recordings for which the “entity” is being sued, just any license for any musical works or sound recordings.

There are loopholes in the bill that you could drive a fleet of Street View cars through, so you have to assume that the loopholes will be hacked given who is involved.  Don’t let anyone tell you “oh that’s just legislative language, we can fix that.”  The whole thing has to be voted down.

Let’s call this bill what it is:  Crony capitalism, the triumph of the connected class.  The Domesday Book writ large.

It’s some of the biggest companies in the world deciding that they don’t want to hear from songwriters or artists anymore.

So shut up and sing.

 

Save the Date! July 26 in Austin: Chris Castle on Address Unknown NOIs Sponsored by Texas Accountants & Lawyers for the Arts

Big thanks to Texas Accountants & Lawyers for the Arts and Norton Rose Fulbright for hosting my presentation on the “address unknown” loophole and what to do about it.  As MTS and MTP readers will recall, this is a vital issue for songwriters that is a festering sore that no one has addressed.  We appreciate the support from I Respect Music Austin!

All are welcome. One hour of Texas CLE credit pending.

6:15-7:15pm Presentation “Address Unknown: Are You Missing Money from Your Songs”

7:15-8:00pm Mixer with attorneys, artists, managers, and other participants

If you are able to attend, please RSVP for details on Eventbrite.

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Senate Introduces Register of Copyrights Selection and Accountability Act (S. 1010)

As the House of Representatives version of the Register of Copyrights Selection and Accountability Act of 2017 passed the House on April 26, a version of that House bill was duly introduced in the Senate on May 2 as Senate Bill 1010.

The Senate bill is identical to the House bill and is sponsored by Senate luminaries Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), ranking member Dianne Feinstein (D-Calif.), former chairmen Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah).

Remember that the House bill  passed with an extraordinarily lopsided bipartisan vote of 378-48 demonstrating broad support for the purpose of the bill:   to elevate the position of the head of the Copyright Office to a Presidential appointment (confirmed by the Senate), thus making the office comparable to the U.S. Patent & Trademark Office and certain other legislative branch positions.  The “Register of Copyrights” is currently (and historically) appointed by the Librarian of Congress as would a more junior job, but the Congress decided to upgrade the position after recent controversy illuminated the benefit of that most justified disruption.

The Senate bill was read twice and referred to the Senate Rules Committee (which has direct jurisdiction over the Library of Congress).  If no amendments are offered in the Senate, S 1010 can proceed straight to the President for signature.

Elevating the Register of Copyrights to a Presidential appointment is a long overdue first step toward modernizing the Copyright Office and allowing it to innovate separately from the extraordinary management weaknesses at the Library of Congress identified by the Government Accountability Office in its 2015 report (“Library of Congress Needs to Implement Recommendations to Address Management Weaknesses“).

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Congress Brings Sanity to the Appointment of the Head of US Copyright Office

As you may have read, the newly appointed Librarian of Congress terminated the head of the U.S. Copyright Office (called the “Register of Copyrights”) through a process that I believe would be considered what’s called “retaliatory constructive termination”.  This is when an employer doesn’t actually fire an employee–usually a senior employee or whistleblower–but puts them in what is effectively a demoted position to make them miserable enough to quit and then announces that the person quit.

This hasn’t worked since Cinderella, and it doesn’t work today.  By demoting the Register of Copyrights, who was Maria Pallante, the new Librarian effectively fired her in a move that was condemned by two former Registers and both current and former Members of Congress as well as songwriters like Don Henley.  The firing was condemned as Google-backed chicanery by no less than the august Editorial Board of the Wall Street Journal.

No one should have been surprised when Pallante quit.

While several in the anti-copyright crowed crowed about Pallante’s demotion being business as usual because Pallante wanted greater independence for the Copyright Office, the justification that they gave was that the Librarian has the power to appoint the Register, so she also has the power to constructively terminate a Register that someone else appointed.  I guess they didn’t realize that they were actually strengthening Pallante’s constructive termination case if anybody cared to listen.

So it looks like somebody did care to listen–in the form of the House and Senate Judiciary Committees.  This is, after all, the Library of Congress after all.  If anybody forgot who they worked for, it now looks like that person was the Librarian, Dr. Carla Hayden.

The House Judiciary Committee has just issued a carefully worded policy paper regarding the appointment of the next Register–notwithstanding the rather mean spirited “and your little dog, too” justifications given by some in the anti-copyright crowd who are promoting the Library’s recent deal with the Berkman Center’s Digital Public Library of America to turn a digitized Library of Congress into a kind of feeder to Kickass Torrents with sovereign immunity.  (You won’t be surprised to learn that DPLA is overseen by at least one director formerly of the Google Books project.)

Here’s the money line from the House Memo:

Currently, the Register is not subject to the same nomination and consent process as other senior government officials.  To ensure that the American people have an opportunity to provide input into the selection of future Registers of Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and consent process with a 10-year term limit, subject to potential re-nomination.

Let it not be lost on anyone that Congress is about to adjourn for the year and will return in January with a new Congress in a new session.  This memo served as a warning to the Librarian that Dr. Hayden should not get any further delusions of grandeur that manifested in appointing a new Register during the recess.  Not only should she not be thinking about a recess appointment, but she just lost the unilateral right to appoint the Register forever.

The Committee should be commended for coming up with a real solution to put a stop to what was a shabby little story of inside Washington back stabbing that was widely condemned by fair minded people everywhere and exposed the anti-copyright crowd for what they really are.