This appears to mean that the mechanical for “physical phonorecords” and permanent downloads has been frozen since 2009 and will remain frozen until 2022. “Physical phonorecords” are CDs and vinyl and permanent downloads is iTunes. These configurations are not nothing and are still about $800 million industry wide in the US alone for the first half of 2017 alone. And while its declining, that’s still a lot of songs.
Readers may be wondering why we haven’t seen a solution to the mass NOI loophole in the controversial Music Modernization Act or otherwise. (For background, read my article on the subject from the ABA Entertainment & Sports Lawyer last year.)
There is one solution to the NOI loophole problem that is entirely within the power of the Congress to solve immediately–instruct the Librarian of Congress to require the Copyright Office to get the lead out on processing copyright registrations. The current turn around time is over six to eight months for electronic filing and eight to 10 months for paper registrations! These bureaucratic delays have a disastrous effect on new registrations (usually new releases) that get caught up in the mass NOI loophole because the registration does not appear in the public records of the Copyright Office until the Copyright Office processes a registration.
Ordering the Copyright Office to bust a move is not an ideal long term solution to closing the mass NOI loophole. It is a solution that commends itself by the speed with which the operational change could be accomplished. Because it is the Congress requiring a change to the operational efficiency of the Library of Congress, I personally don’t believe this instruction would require anything like an Act of Congress to accomplish, or even regulations. Surely not even the federal government requires passing a law to order a government agency to accomplish that which they already have the statutory authority to do, just do it more efficiently. The issue could probably be solved with a phone call, strong letter to follow.
It’s fair to say that songwriters should accept as a given that the Congress does not intend to fix the mass NOI problem. To my knowledge, there has been no official discussion of the issue by any Member of Congress, much less the Copyright Office itself, and the Music Modernization Act doesn’t solve the problem, either, at least not retroactively. But this shouldn’t surprise anyone because the Congress and the Copyright Office also forgot to raise the mechanical royalty rate from 1909 to 1978–sixty nine years. And has frozen the mechanical rate for physical and downloads at 9.1 cents for thirteen years.
Failure to address the loophole will hand DiMA companies like Google, Spotify, Amazon and Pandora a sobering royalty free windfall for the period April 2016 to the effective date of the MMA. The least Congress could do is to require the Copyright Office to start processing copyright registrations in 10 business days. And start that schedule immediately.
If the Copyright Office fails to process registrations in that time, there should arise after 10 business days a rebuttable legal presumption that the registration was properly filed until such time as the copyright owner filing the registration receives a conformed registration or a rejection from the Copyright Office. The contact information for the copyright owner of the pending registration could easily be placed in a searchable database so that those wishing to file NOIs under the current regime–all 60 million or so–could be found and removed from the loophole. So praesumptio iuris tantum to you, too.
A music user and putative compulsory licensee could challenge the presumption of a valid registration if they were sued before the registration were approved (which of course they would and do anyway as a matter of drill). But they would still send their notice, accountings and payment to the copyright owner at the address in the new “public records” of the Copyright Office.
It’s important to note that the loophole is based entirely on whether the copyright owner is identifiable in the public records of the Copyright Office–not whether the copyright owner actually owns the copyright or has filed a registration. It is merely coincidental that the registration is the easiest way to get into the public records of the Copyright Office. Therefore, it is entirely appropriate that the Copyright Office include contact information from “work in progress” registrations in a more searchable format–the filing itself is arguably in the public records already as it could no doubt be obtained with a Freedom of Information Act request.
The current situation where the Copyright Office simply sits on a registration for an unlimited period of time–thus preventing the registration from appearing in the “public records” of the Copyright Office and inserting new song registrations into the loophole pool for mass NOIs–is likely unlawful and unconstitutional. It certainly is for other types of government work like SEC filings in the securities context and parade permits in another free expression context.
Conversely, the Copyright Office promptly processes the mass NOIs while expressly and unilaterally disclaiming responsiblity for verifying whether the NOIs were filed properly. The Copyright Office tells songwriters that their sole remedy is to sue (37 CFR Sec. 201.18(g)):
If any issue (other than an issue related to fees) arises as to whether a Notice filed in the Copyright Office is sufficient as a matter of law under this section, that issue shall be determined not by the Copyright Office, but shall be subject to a determination of legal sufficiency by a court of competent jurisdiction.
This seems to be a violation of due process on its face.
If this new solution for the government’s responsibility to copyright owners would cost money, never fear. The Copyright Office is enjoying a financial windfall in the form of millions of dollars in filing fees for mass NOIs that should cover these costs. Or the Congress could simply increase the Office’s budget to bring it into compliance with common sense if not its Constitutional responsibilities. What the Office should be barred from doing is increasing the filing fees for basic copyright registrations simply because they have to pick up the very sleepy pace.
And by the way, I recall that the Constitution says something about due process and the government’s effective annexation of property rights by an unmovable government agency. The Copyright Office has had two years to fix this problem which is entirely within their operational control. Failing to do so, Congress could act–without an Act of Congress.
Somebody needs to pick up the phone, strong letter to follow.
An update on the state of the Copyright Office debacle also known as mass filing of “address unknown” notices under Section 115 (you can see the largely unusable posting of these notices at this link on the Copyright Office site). Here’s some charts you won’t see in the trades or even on the Copyright Office site-Royalty Claim’s Address “Unknown” Mass NOI chart that Royalty Claim measured by number of filings January 1-June 30, 2017.
It is very likely that we will hear about a move to make significant amendments to the Copyright Act at some point before the beginning of campaign season in 2018. There are a significant number of copyright-related bills that have been introduced in the House of Representatives in the current session, so brace yourself for an “omnibus” copyright bill that would try to cobble them all together Frankenstein-style.
A Frankenstein omnibus bill would be a very bad idea in my view and will inevitably lead to horse trading of fake issues against a false deadline. Omnibus bills are a bad idea for songwriters and artists, particularly independent songwriters and artists, because omnibus bills tend to bring together Corporate America in attack formation.
When you consider that Google and Facebook are part of Corporate America (not to mention Apple), the odds of the independent songwriter and artist, but really any songwriter and artist, just holding onto the few crumbs they currently have crash and burn. The odds of actually righting wrongs or–God forbid–getting rid of the legacy consent decrees that protect Big Business vanish into the limit.
Of course, what certain elements of Big Tech would really like to do is push all licensing of music into one organization that they could then control through consent decrees or other government regulation and supervision by exercise of the massive lobbying and litigation muscle of the MIC Coalition and DIMA. While I realize that may actually sound anti-competitive, it is typical of monopolists to use the antitrust law to destroy competition (as Professor Taplin has taught us). That’s certainly what has happened with the PRO consent decrees–reduced competition and lower royalties. Not to mention such a licensing organization would collapse under its own complexity. This is probably why the Copyright Office envisioned a “Music Rights Organization” that would combine the PROs and mechanical rights licensing but provided the relief valve of an new opt-out right so that songwriters could escape the madness. (“Under the Office’s proposal, except to the extent they chose to opt out of the blanket statutory system, publishers and songwriters would license their public performance and mechanical rights through MROs.” Copyright Office Music Licensing Study at p. 9)
If you want some ideas about the kinds of property rights that Big Tech wants the government to take away from songwriters and artists, just read Spotify’s most recent filing in the songwriter litigation in Nashville where their lawyer tries to define away mechanical royalties (unsurprisingly, the lawyer is a long-time protege of Lessig). Why? Because they are being brought to a trial by their peers on statutory damages for copyright infringement and the potential for having to pay the songwriters’ lawyers due to a statutory right to recover attorneys fees. (Statutory damages for copyright infringement has long been an attack point of Big Tech and we get a preview of where they want it to go in Pamela Samuelson’s “Copyright Principles Project”–essentially abolished.)
One way or another, the Big Tech cartel (which includes all the companies in the MIC Coalition and MIC Coalition member the Digital Media Association which itself has members like Spotify and, curiously, Apple) is very likely going to go after statutory damages and try to create yet another “safe harbor” for themselves with no burdens–a “friction free” way to infringe pretty much at will because the actual damages for streaming royalties will be pennies.
If the cartel succeeds in eliminating statutory damages and attorneys fees awards, this will truly make copyright infringement litigation toothless and entirely eliminate the one tool that independent songwriters and artists have to protect their rights. It will neuter massive copyright infringement as alleged in all of the Spotify class actions, not to mention cases like Limewire.
Oh, you say–did you just switch from song copyrights to sound recording copyrights by referencing Limewire? Yes, I did–because that’s exactly what I predict the DIMA and MIC Coalition have in mind. Why do I say this? Because that’s what these companies are backing in the radioactive Transparency in Music Licensing and Ownership bill (HR 3350). And if you blow up all the current separate bills into one omnibus copyright “reform” bill, the pieces may reconstitute in forms you didn’t expect.
But realize that in almost all the many copyright bills currently before the House of Representatives, the other side is trying to bootstrap unjust harm into a negotiation chip to shakedown creators. And it’s not just pending legislation–the shakedown is especially observable with the millions of notices of intention to rely on statutory mechanical licenses for songs filed with the Copyright Office. That’s a nice song you got there, it would be a shame if something happened to it.
Big Tech’s basic negotiation method is to rely on a loophole, bootstrap the loophole to build up the pressure on people who can’t fight back, then run the shakedown to get concessions that should never be made. This is what Google has done with the DMCA and is the same shakedown tactic on mass NOIs taken by Google, Amazon, Pandora, Spotify, and others–but curiously not Apple. Somehow Apple has made it work with the most successful digital music platform in history.
Let’s go down the issue list:
Pandora and Sirius stopped paying artists for digital royalties on pre-72 recordings—because of loophole based on federal copyright protection for sound recordings
Start paying artist royalties on classic recordings made before 1972
Terrestrial radio created a loophole so they don’t have to pay performance royalties to artists on sound recordings; stop artists from opting out
Start paying artist royalties for broadcast radio (with protection for noncommercial and small broadcasters)
Fair Pay Fair Play Act, PROMOTE Act
Big tech suddenly started using a loophole to file millions of “address unknown” NOIs with Copyright Office after indie songwriters filed class actions
Require Big Tech to use existing databases to look up copyright owners or don’t use the songs or recordings.
No “central database” that has all songs (but no requirement to actually look up anything), requires double registration
If songwriters and artists don’t register, then no statutory damages
Transparency in Music Licensing and Ownership Act
Blown up into parts:
–Avoid raising mechanical royalty rate or paying artist royalties on terrestrial at all
–How to use the lack of the mythical “central database” as a bright and shiny object to avoid paying royalties and shirk liability for not doing copyright research, an absurd position for companies that owe much of their wealth to their unprecedented ability to profile people around the world and “organize the world’s information”
–Avoid paying statutory damages
–How to avoid paying royalties that should have paid anyway (pre-72, terrestrial, mass NOI) through distorted interpretations of the law or even safer harbors
–Avoid an obligation to actually look up anything (new databases)
–Use any work they want if all they have to pay is actual damages and no attorneys fees
–Keep songwriters and artists from opting out
–Create biggest black box possible
It should be apparent which way Big Tech is trying to push the creative community. It is important for creators to understand that any legislative concession that the MIC Coalition or DIMA win against songwriters or artists they will then turn around and try to extract in the next shakedown–authors, photographers, film makers, all the copyright categories.
It is in everyone’s interest to support a healthy creative community that will continue to engage fans and do enough commerce to create value for the tech monopolies. But–it is crucial to understand that it doesn’t work the other way around.
The purpose of the creative community is not to create value for tech monopolies. It is to support compelling artists and help them engage with fans, and sometimes it is art for art’s sake alone. If those artists throw off some commercial gain that the tech monopolies can turn to profit themselves, fine. But creating profit for these monopolists is not the goal of artists.
Instead of creating fake problems to try to extract concessions that further undermine creators like offering ice in winter, the tech monopolies like Google, Spotify, Amazon and Pandora should identify real problems and work with us toward real solutions–and not a loophole-driven shakedown.
Episode #94: Recently, a bill was introduced by Republican congressman Jim Sensenbrenner which calls for the creation of a comprehensive database of compositions and recordings. The “Transparency in Music Licensing and Ownership Act” claims to make things easier for coffee shops, bars and restaurants who want to license music to play in their establishments. To many in the music industry, the bill seems like a wolf in sheep’s clothing with the potential cause big problems. On this episode we dig deep into the bill with Future of Music Coalition’s Kevin Erickson and attorney Chris Castle.
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.
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:
Then another defined term “A food service or drinking establishment”. Kind of like these people:
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:
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:
and don’t forget these people who are DiMA members and need the government’s protection from songwriters and artists:
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.
Spotify just can’t seem to catch a break in the artist community. A story broke on Vulture evidently based on a Music Business Worldwide post alleging (and I’m paraphrasing) that (1) Spotify commissions artists to cover hits of the day and (2) there’s a lot of sketchy material on Spotify that trades on confusing misspellings, “tributes” and other ways of tricking users into listening to at least 30 seconds of a recording. Which means that Spotify isn’t that different than the rest of the Internet. (Thank you DARPA, the people who gave you the Internet. And Agent Orange. The real one.)
Spotify of course has issued a denial that I find to be Nixonian in its parsing. Let’s not go crazy on this, but here’s the first part, according to Billboard:
“We do not and have never created ‘fake’ artists and put them on Spotify playlists. Categorically untrue, full stop,” a Spotify spokesperson wrote in an email.
Nobody said Spotify “creates” “‘fake artists,'” and the accusation was that the fake artists were on the service AND on some playlists, not just playlists. The allegation is that Spotify commissions recordings.
“We pay royalties — sound and publishing — for all tracks on Spotify, and for everything we playlist. [If Spotify commissioned the fake tracks, they would also “pay royalties”.] We do not own rights, we’re not a label, all our music is licensed from rightsholders and we pay them — we don’t pay ourselves.”
Notice the switch to “rights holders” which would include either publishing or sound recordings. If Spotify commissioned fake artists they would not need to “own rights” and they could easily have “licensed” the fake artists recordings. Cover songs would require an…ahem…NOI for the compulsory license. And the commission payment could go to the artist as a buyout so Spotify would “pay them”. If the object was to increase traffic for their ad supported service, commissioning recordings would both increase traffic AND reduce the prorata share of advertising revenue by making the denominator larger for everyone with a revenue share during that accounting period. I don’t want to go too far down that rabbit hole, but there are some odd loose ends.
Leave the holes in Spotify’s denial to the side. The core problem identified by the Vulture post is the same for Spotify as it is for Google, YouTube, Facebook, all the other Internet companies that require “scale” to succeed, and which are, one way or another, hell bent on being monopolists. The second part of Spotify’s denial in Billboard could apply to this lack of monitoring:
“As we grow there will always be people who try to game the system. We have a team in place to constantly monitor the service to flag any activity that could be seen as fraudulent or misleading to our users.”
Maybe that “team” could have a role in “monitoring the service” for tracks before the recordings get on the service rather than after. Noah built the Ark before the rain.
It must be said that it sounds a bit implausible that Spotify would commission this type of recording to avoid paying artist royalties on the fake tracks. Such an affirmative act would require a commercially tortured logic because the royalty offset on those specific tracks would be so tiny that the cost of the commissioned recordings would have to be very, very low. One guy with Garageband in Mom’s basement kind of low. How much the prorata revenue share would be reduced is hard to know from the outside.
But even if Spotify doesn’t hire studio musicians to perform “fake hits”, it appears that they are allowing a lot of sketchy recordings onto the service. One might ask how those recordings get there in the first place. I would bet that the explanation is pretty much that nobody bothers to check before the recordings are posted (or “ingested” in the vernacular, if you can stand that word).
So while there is a major difference in degree of harm, there isn’t a great deal of difference between what seems to be happening on Spotify with sketchy recordings and the links to illegal materials that the Canadian Supreme Court just blocked on Google Search, promoting the sale of illegal drugs for which Google paid a $500,000,000 fine and narrowly avoided prison, ISIS recruiting for which Google lost a chunk of market cap (at least for a while), human trafficking on Craig’s List and fake news on Facebook. Each of these services operate at scale and they seem to have the same problem: No one is minding the store and there are no or poorly enforced standards and practices that are only enforced after the harm has occurred.
The other trait that all these companies have in common to one degree or another is that they are all at least dominant if not monopolies in their markets.
Remember–on May 12, 2014, Spotify’s director of economics Will Page gave a presentation at the Music Biz Conference in Nashville. As reported by Billboard, Will Page gave the audience a good deal of evidence of Spotify’s domination of the online music market:
Spotify claims to have represented one out of every ten dollars record labels earned in the first quarter….Page’s claim shows the speed at which subscription services are gaining share of the U.S. market. According to IFPI data, all subscription services accounted for 10.2 percent of U.S. recorded music revenue in 2014. If Spotify had a 10-percent share in the first quarter, it’s safe to say the overall subscription share is well above the 10.2 percent registered last year.
Much of Page’s presentation seemed aimed at Spotify skeptics in the audience. While explaining how streaming “is no longer an outlier in the business,” Page noted Spotify has launched in 32 of the 37 countries where streaming is the primary digital source of revenue. Page also pointed out that Spotify is half of the $1.5 billion global subscription streaming market. In the U.S. market, Spotify made up approximately 90 percent of last year’s growth in subscription revenue, according to Page.
These numbers suggest that while Spotify may have a significant share of overall U.S. recorded music revenue, Spotify is clearly dominant if not a monopoly in the global subscription market with its now 100 million plus users and probably is at least dominant if not a monopoly in the U.S. music subscription market.
So how does Apple address these problems? If you consult the iTunes Style Guide, you’ll see that iTunes expressly prohibits the use of search terms or keywords in track title metadata (like “Rock Pop Indie Rock”) or an artist name (like “Aerosmith Draw the Line). Audio files have to match track titles on each album delivered. “All track titles performed by the same artist on an album must be unique, except for different versions of the same track that are differentiated by Parental Advisory tags.“ And most importantly, perhaps, “the name of the original artist must not be displayed in any artist field on the track level or the album level.” Why these rules? One reason might be that Tunecore has encouraged their users for years to use covers as a way of getting noticed in searches on music services (with suitable admonishments to not “trick” fans).
Let’s face it–there’s only one way to keep your service clean. Don’t let the bad stuff on in the first place. You may think that it should be self evident that allowing sketchy recordings, ISIS videos or human trafficking on your service is a bad thing. You may think that it should be self evident that allowing someone to change a letter in an artist’s name to trade on their reputation is a bad thing–not that different from typo squatting. You may think that it is self evident that promoting the sale of illegal drugs is a bad thing. And you may think that anyone who wants to engage in commerce with the legitimate commercial community, much less the artist community, wouldn’t allow these travesties into their business.
But you would be wrong. Probably because you don’t worship at the alter of the great god Scale.