Pandemic: Should Government Ordered Shut Downs Be Government Backed “Business Interruptions”?

There will, no doubt, be several rounds of body blows to the U.S. economy as the result of an unprecedented shut down of business activity–ordered by the government, be it federal, state or local.  This will send insurance agents and underwriters scurrying to their policies to see if there’s a way to deny coverage for business interruption.  Both government and the insurers are acting rationally–one is trying to prevent the spread of the virus, the other trying to avoid massive claims.  But why is this government-ordered shut down not a “business interruption”?  And why shouldn’t the taxpayer in the government unit ordering the shut down also guarantee business interruption coverage payments?

Small business, including restaurants, festivals and live music venues are caught in the middle in a sudden contraction that they no doubt thought they were insured for under overlapping policies that included losses from business interruption.  We are already seeing small businesses–which are something like 90% of all jobs–lay off employees.  This creates the kind of demand side collapse that leads to a true depression and unemployment at 30%.

Beware the Ides of March

So far all of this has happened in March.  April is just around the corner and on April 1, rent or mortgages are due.  When businesses are ordered to shut down, they will have to start depleting their cash reserves or drawing down on credit lines.  When employees are laid off, they will do the same.  When April 1 comes, both employers and employees will need to make some hard choices, and thus the cascading effects of the denial of coverage really begin to accelerate.  It is only a matter of time before they will fail to pay their credit cards or loans or rent (some states are passing emergency rules that prohibit eviction for the duration), and when that happens on this scale it can have catastrophic  effects.

Because guess what?  All that debt is still being sold in a very similar way to the commoditization that lead to the 2008 financial crisis.  If your business loan or mortgage was with the local bank and you couldn’t make your payments, you could go sit with your banker and figure it out.  Your banker wants to keep you in business, and you want to keep being able to borrow from your banker.

But when your loan is sold as part of a financial instrument, there’s no one to talk to and you either make your payments or the loan defaults.  Green light or red light.  No amber.

The challenge then today, and I do mean today, is to get cash into the bank accounts of small business so they can keep at least some of their staff and pay their rent.  Ideally, this needs to be done by April 1.

No Live Music Capitol With No Live Music

Assuming of course you want them to reopen at some point in the not too distant future.  As I am regrettably fond of saying to people in Austin, it’s kind of hard to be the Live Music Capitol of the World when there’s no live music.  And without venues, there’s no live music, and without live music there are far fewer bars, restaurants, condos, Uber, or increasing property values, not to mention far fewer hotels, airline tickets and rental cars.  So all of those intricate economic relationships come down to musicians, songwriters and venues.  (See the Austin Music Census.)

You have to be pretty naive to think that you can just put all that on hold and then weeks or months later it will just snap back to where it was before the government shut it down.  So do we agree that the situation is beyond dire?  It is life changing.  Perhaps for all the right reasons, but that doesn’t make it any less life changing.

Austin, San Francisco, New Orleans, Memphis, lots and lots of cities outside the “centers” need to solve this problem right away.  Otherwise, Austin will just be another college town with a Google campus.  I promise.

Solving for Business Interruption Coverage

Solving this problem will require different tools for different reasons, but on the small business side, one way to do it would be for the federal government to deem the shutdowns ordered by various levels of government to be a business interruption covered by business interruption insurance and to guarantee payments under those policies.  There is already a billing relationship between those carriers and their insureds and the transaction costs of handling it this way will be far less than the government essentially re-creating the exact same financial structure.

Along the way, thought can be given to how to solve for those who are ordered to shut down who do not have business interruption coverage.  Some strings could be put on the use of funds, so that the payments must be used to pay rent, suppliers and employees.   Insurers should be prevented from price gouging and should be required to cap their administrative costs.  This would not be a loan, it would be a direct payment of an insurance casualty benefit.  We may need to look into special bond offerings to finance these payments.  (For comparison, the World Bank issues a parametric catastrophe bond that covers pandemic risks as part of its Pandemic Emergency Financing Facility.)

Making America Creditworthy Again

Alongside this type of bold move would be a requirement that any defaults on credit following a government ordered shutdown cannot be reported to the credit reporting agencies or taken into account for a borrower’s creditworthiness in the future.  That step needs to be covered, too, because that’s just exactly the kind of kafka-esque shenanigans that these people would come up with if left to their own devices.

I want to encourage everyone to read the op-ed by Ben Bernanke and Janet Yellin in the Financial Times. You may have to register to read the post, but it’s a vitally important step to understanding the real issues with the current crisis.  Here’s the key paragraph from the FT post:

If critical economic relationships are disrupted by months of low activity, the economy may take a very long time to recover. Otherwise healthy businesses might have to shut down due to several months of low revenues. Once they have declared bankruptcy, re-establishing credit and returning to normal operations may not be easy. If a financially strapped firm lays off — or declines to hire — workers, it will lose the experienced employees needed to resume normal business. Or a family temporarily without income might default on its mortgage, losing its home.

To avoid permanent damage from the virus-induced downturn, it is important to ensure that credit is available for otherwise sound borrowers who face a temporary period of low income or revenues.

I’d add that to avoid permanent damage from the government-ordered downturn, it is also important for the government to ensure that cash is available before April 1 for business interruption losses that would otherwise be denied because of unseen underwriters denying coverage.


Pandemic: Virtual Venues, Old School Collections and Audits Become a Practical Reality

As the effects of coronavirus quarantine efforts keep expanding, artists who were able to survive into the second decade of the age of piracy are now watching their live show revenue dry up, too.  From festivals to major tours, club shows, everything is cancelled or cancelling, sometimes months out.  Show guarantees are evaporating.  Even if there were a vaccine and a cure tomorrow, it will take months for the industry to reorient itself and rebook cancelled shows–assuming the venues survive.  Many will not.  (If you doubt this is happening because it hasn’t happened to you–yet–see David Crosby’s sobering interview with GQ.)

And that’s the crux of it.  We need to keep the artists alive and we also need to keep the venues alive, including the bars and restaurants that provide the infrastructure for “entertainment districts”.  I’m working on the “Keep Austin Weird Pledge” that is focused on the venues, but this post is going to focus solely on the artists.

Artists facing a sudden constriction in their base line revenue really have to bust a move right about now.  I think you need to plan for the worst and hope you are pleasantly surprised.  But realize that you may also be unpleasantly surprised.  Like the First Rule of Electronics Repair, you have to make sure that you are collecting what you are owed and perhaps consider auditing your royalties, particularly for indie labels and publishers.  Signing up for collections, reviewing black box and the more complex virtual venue set ups are all things you can do from isolation as long as you have a phone and an Internet connection.

Remember–just like you can’t pay your rent with exposure or data, social media alone won’t save you.  It’s time to start monetizing.  We are leaving the age of promotion and entering the age of sales.

Virtual Venues

Virtual venues have been a growing sector for years now, often as an afterthought for artists who are accustomed to higher end touring.   No longer.  A virtual venue relationship is not a “nice to have” anymore.  Getting paid is not something to be sneered at as a “paywall”, an expression invented by the ad supported, but this requires some thought.

The grand daddy of virtual venues is Stageit run by Evan Lowenstein and backed by partners like IBM.  (I’ve been a fan of Stageit for years, starting with a 2011 post.)  There are a handful of others as well as listed in a good checklist generously assembled by Cherie Hu that is well worth reading and following as she updates it.

Not only will virtual venues exist as part of an artist’s commercial repertoire, they may actually come to be part of reality for brick and mortar venues, too, a la the old Digital Club Network.  If a venue has a strong brand, just like an artist with an active fan base, there may be value in considering an installed simulcasting package.

Make Sure You Are Signed Up With Collecting Societies

The first thing that an artist should do when concerned about cash flow is make sure that  you have tied down the obvious–if you are a songwriter, make sure your PRO  knows where to find you and that they are not holding any money for you (this would be ASCAP, BMI, GMR, SESAC).  On the mechanical side, check in with HFA, Audiam, CDBaby for the same reason.

For artists and label owners, be sure you have joined SoundExchange.  To my knowledge, SoundExchange is the only PRO that pays on a monthly basis.  I always urge artists and labels to join SoundExchange as a member (as opposed to simply registering) as you can tap additional income streams.

SoundExchange also has a look up portal so you can see if they are holding money for you, which is a box you need to check.

You should also check and make sure that the union intellectual property funds are not holding money for  you or can’t find you.  If you are a union member, check with your local to see if there are any residuals floating around that haven’t found their way to you yet.

Although it’s not a collecting society, you should also check the Spotify class action claiming portal at Song Claims (powered by Crunch Digital).

If you were signed to a record company or music publisher at some point in the past, even if you are currently signed, make sure they know where to find you.  They may have money for you.  If you have your own distribution agreements, then take a look at those, too.

You can also look at companies like Lyric Financial that may give you an advance on more substantial royalty earnings, and companies like AdRev can go out to collect YouTube monies for you.


While not an immediate source of funds, it may be worth it to consider a “royalty compliance examination” or “audit”, particularly if you are a label or publisher with audit rights against digital distributors.  Audits can be conducted largely remotely, and sometimes even a desktop audit can shake loose some monies based on undeniable mistakes.  Consult your business manager or accountant to look into this as desktop audits can be conducted remotely.


Pandemic: Force Majeure Contracts and Insurance in the Music Business

After the cancellation of SXSW, we need to think about those “force majeure” clauses that everyone skips over in contractual boilerplate.  “Force majeure” or the less secular “Act of God” clause is a species of the “impossibility of performance” defense to a breach of contract claim that excuses the liability of a nonperforming party.  Earthquakes, floods, severe weather or other natural disasters are what the parties are typically thinking with force majeure, some act that is beyond their control.

These clauses sometimes are risk shifting, meaning that party A and party B may agree that one of them will bear the economic damages of the disaster, or permit rescheduling or other delay until the force majeure event has passed in a reasonable period of time.  Force majeure clauses typically break between suspending performance for a period of time and allowing the parties to terminate the contract, with little or no penalty.  It’s well to think of force majeure as a species of the impossibility defense to a breach of contract that has been available in the law since 1863.  A successful impossibility defense may be thought of as an exoneration of the breach, so excuses nonperformance before the breach actually arises.

This post is much longer than we usually ask you to read, but I think it’s a very important topic and I hope you find it useful.

Examples of Force Majeure Clauses

Distribution Agreement

Contract 1

Force Majeure. If because of: act of God, inevitable accident, fire, lockout, strike or other labor dispute, riot or civil commotion, act of public enemy, enactment, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign), failure of technical facilities, failure or delay of transportation facilities, shortage of raw materials, or other cause of a similar or different nature not reasonably within Distributor’s or Company’s control, as applicable (a “Force Majeure Event”), either party hereto is materially hampered in the performance of its obligations under this agreement or its normal business operations are delayed or become impossible or commercially impracticable; then, without limiting such party’s rights, the party affected by such Force Majeure Event shall have the option, by giving the other party notice, to suspend its obligations hereunder for the duration of any such contingency (other than the obligation to account or pay hereunder or permit audits hereunder, except to the extent either party’s ability to do so is impaired by virtue of such Force Majeure Event). Any such suspension shall be limited to a period of the duration of such Force Majeure Event, but in no event longer than six (6) months, after which, unless such suspension shall be lifted, the party not suspending its obligations hereunder may, during the pendency of such suspension, terminate this agreement by notice in writing to the other party. Should Distributor suspend the manufacture or distribution of Products pursuant to this Paragraph, Company shall have the right to manufacture and/or distribute (as applicable) Products itself or through third parties during the pendency of such suspension.

Contract 2

Neither party shall be deemed in default of this Agreement if either party’s obligations are delayed or become impossible or impractical by reason of an act of God, war, fire, earthquake, strike, sickness, accident, civil commotion, epidemic, act of government or governmental instrumentality, failure of technical facilities, failure or delay of transportation facilities, shortage of raw materials, or any other cause of a similar or different nature beyond Distributor’s or Owner’s control (“Force Majeure Event”). Upon the happening of any Force Majeure Event, Distributor may suspend the Term for the duration of the Force Majeure Event by written notice to Owner. Owner shall have the right to terminate this Agreement upon sixty (60) days written notice to Distributor if the Force Majeure Event affecting Distributor is not prevalent throughout the recording industry in the United States and continues for one hundred and eighty (180) days. Distributor shall have the right to terminate this Agreement upon sixty (60) days notice to Owner if the Force Majeure Event affecting Owner is not prevalent throughout the recording industry in the United States and continues for one hundred and eighty (180) days.

Digital Distribution

Contract 1

For the purposes of this Agreement, “Force Majeure” shall mean any event which a Party hereto could not reasonably prevent or predict, such as fire, flood, acts of God or public enemy or terrorist, Internet failures or “hacking”, earthquakes, governmental or court order, national emergency, strikes or labor disputes, the effect of which it could not reasonably prevent or predict and which renders impossible or impractical the performance of contractual obligations either totally or in part.  The Party invoking a Force Majeure shall inform the other Party (either by notice, email, or telephonically) within five (5) business days of its occurrence by accurately describing all the circumstances of the situation involved and its effect upon the performance of its contractual obligations.  The taking place of a Force Majeure shall have the effect of suspending the obligations of the Party which has invoked the provisions of this Section to the extent such obligations are affected by the Force Majeure.  Contractual dates shall be extended for a period equal to the duration of a Force Majeure.  The cessation of a Force Majeure (in the judgment of the Party that invoked it) shall be communicated by the Party that invoked it to the other Party (either by notice, email, or telephonically) within five (5) business days of such cessation.

Contract 2

Force Majeure Event:  any act or event, whether foreseen or unforeseen, that meets all three of the following tests:  (i) the act or event prevents or delays a Party (the “Nonperforming Party”), in whole or in part, from (A) performing its obligations under this Agreement; or (B) satisfying any conditions to the other party’s (“Performing Party”) obligations under this Agreement; (ii) the act or event is beyond the reasonable control of and not the fault of the Nonperforming Party, and (iii) the act could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the Nonperforming Party through the use of alternate sources, work‑around plans or other means.   Without limiting the generality of the foregoing, each of the following acts and events is deemed to meet the requirements of clauses (i) through (iii) and to be a Force Majeure Event: war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, famine or plague, shipwreck, or strike, work-to-rule action, go-slow or similar labor difficulty or other similar or dissimilar causes.

Recording Agreement

If because of:  act of God; inevitable accident [an old common-law version of an unavoidable accident, like an accident caused by a deer jumping in front of a car]; fire; lockout, strike or other labor dispute; riot or civil commotion; act of public enemy; enactment, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign); failure of technical facilities; failure or delay of transportation facilities; illness or incapacity of any performer or producer; or other cause of a similar or different nature not within Company’s control; Company is materially hampered in the recording, manufacture, distribution or sale of Records, then, without limiting Company’s rights, Company shall have the option by giving you notice to suspend Company’s obligations under this agreement for the duration of any such contingency.  If any suspension imposed under this paragraph by reason of an event affecting no Record manufacturer or distributor except Company continues for more than six (6) months, you may request Company, by notice, to terminate the suspension by notice to you within thirty (30) days after Company’s receipt of your notice.  If Company does not do so, this agreement shall terminate at the end of that thirty‑day (30) period (or at such earlier time which Company may designate by notice to you), and you shall be deemed to have fulfilled all of your obligations under this agreement except those obligations which survive the termination of this agreement (such as warranties, re‑recording restrictions and obligation to pay royalties.

Show Agreements

Contract 1

Each party’s obligations to perform hereunder will be excused in the case of a Force Majeure Event.  A “Force Majeure Event” is defined as acts, omissions, accidents and events which are beyond the reasonable control of the party claiming Force Majeure and which prohibit that party’s performance of its obligations under this Agreement including, without limitation, (i) acts of God, (ii) strikes or labor disruptions in the metropolitan area where the Event is scheduled to be held, (iii) civil riots or disturbances in the metropolitan area where the Event is scheduled to be held, (iv) weather events in the metropolitan area where the Event is scheduled to be held, (v) acts of terrorism in the metropolitan area where the Event is scheduled to be held, (vi) medical conditions, which result in quarantine or similar limitations or restrictions on travel or congregation in the metropolitan area where the Event is scheduled to be held, (vii) damage to the venue where the Event is scheduled to be held rendering it unsafe or unsuitable for giving of live entertainment performances.   In the case of Artist, a Force Majeure Event includes, without limitation, death, serious illness or incapacity of Artist which renders it impossible or not reasonably practical for Artist to attend the performance.  If the Event is cancelled due to a Force Majeure Event, the parties will use commercially reasonable efforts to schedule the Event on an alternate date.  

 Contract 2

In the event Show cannot reasonably be put on because of unpredictable occurrences such as an act of nature, government, or illness/disability of Band, the 50% deposit of Fee is non-refundable, but no other portion of Fee is due, and the parties may negotiate a substitute Show on the same terms as this Agreement save for the time of Show, with no further deposit of Fee due, in which case a new Agreement reflecting this will be signed by the parties. No further damages may be sought for failure to perform because of force majeure.

Hosting Agreement

Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a party’s reasonable control, the affected party, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such condition.  However, if a force majeure detrimentally affects a party’s performance of a material covenant hereunder for fourteen (14) days or more, the other party can terminate this Agreement.  Each party acknowledges that website operations may be affected by numerous factors outside of a party’s control.

Termination for Impossibility Force Majeure

As you can see from the examples given, contracts vary widely on what constitutes a force majeure event outside of a few core events.  They also vary on what action the parties are to take, tending toward short term suspensions with a right of termination.  Only two examples I could find actually mention “epidemic” while another refers to “quarantine” but it is fairly common to refer to what are essentially government orders which may include “state of emergency” type declarations such as that by the City of Austin that essentially caused the cancellation of SXSW.

Almost all refer to the contract law doctrine of “impossibility.”  What is that?  For example, A and B may contract for A to promote concerts at B’s venue on a “four wall” basis, but before the concerts can be performed, B’s venue burns to the ground.  Even if the contract between A and B is silent on force majeure, or refers obliquely to “acts of God,”  the continued existence of the venue is an implied term of the agreement.  In our example, as long as neither A nor B is an arsonist, a court might well find that both are released from their obligations under the agreement because performance is now literally impossible.  B may also be excused from paying A’s losses for promoting the event, or guarantees to performing artists.  The same could be true of heirs not being liable for a personal obligation to perform by a party who dies before the date that performance is due.

Less final intervening events may give rise to a suspension of performance for a period of time with performance subsequently rescheduled.  If the intervening event continues past a certain time period that would be long enough to make the performance stale or undesirable, then some force majeure clauses allow for termination.  It’s common to see this period be designated as six months in the entertainment industries which is usually designed to address labor strikes for companies that are signatories to collective bargaining agreements.

It is important to note that the clean hands–so to speak–of both parties is significant in these cases.  That determination may be proved to a court or jury in evidence by the party not affected by the force majeure event, or made by local police or other governmental authorities investigating the force majeure event.  Delays may result during the pendency of the investigation.

A force majeure event is generally thought to be an intervening event of a great magnitude outside the control of the parties.  The event may make performance impossible, as in the case of the venue that burns, or so difficult it will be deemed to be impossible if the parties bargained for that relief, such as if the venue were flooded due to a hurricane or condemned  due to an earthquake.

A fire that destroys a venue seems like the simple case compared to the coronavirus.  What about an epidemic?  How do you know that there is an “epidemic” in the first place?  One way might be to refer to a declaration of a government body, such as the World Health Organization.  That’s not always helpful.  For example, WHO declared on January 31, 2020 that the coronavirus constitutes a “public health emergency of international concern.”  Is that the same as an “epidemic”?

As we saw with the cancellation of SXSW, economic harm can occur even If there are no cases of coronavirus in your city, state or region, so is what WHO says even relevant in the force majeure analysis for you?  When the Mayor of Austin announced a “local state of disaster” and cancelled the event as a matter of social isolation, it was not because of something that had happened at that time, but rather because of something that might happen and a potential contagion which was anticipated to have dire consequences.  Including political consequences which should not be overlooked.

At the same time as the Mayor cancelled SXSW, the head of the Austin Health Authority acknowledged there was no clear scientific consensus on the effectiveness of cancelling mass gatherings.  While the Mayor’s action clearly affected interstate (and international) commerce and the lack of scientific consensus may seem arbitrary, no Constitutional challenges have yet been mounted (such as the Commerce Clause as well as substantive and procedural due process challenges to geographical quarantines, travel restrictions or “voluntary” social isolation).

In the case of Austin in particular, the city has long branded itself as the “Live Music Capitol of the World”.  The harm of the City’s decision to shut down SXSW could be extensive and long lasting and may result in a political reordering of the city if social isolation becomes the rule.

The question then becomes what is the force majeure event that produces the economic harm?  Is it the presence of the virus somewhere in the world?  The country?  The state?  The county?  The city?  The venue?  Or is the event actually the action of a government authority that may turn out to be an overreaction?  This may be important for analyzing the force majeure clause in a contract, and ultimately for interpreting an insurance policy.

It is well to consider the larger impact on the wider music business if venues start getting shut down, tours cancelled and festivals sidelined.  Record deals are made in anticipation of artists promoting their records, publishing deals may be contingent on record deals being in place, sponsorships may require live appearances at events and so on.  If the touring business is essentially shut down, the ripple effect could be substantial.  Social media alone will not replace touring.

It also must be said that Big Tech has tried for years to get us to believe that digital piracy actually helps artists and songwriters because it drives fans to shows.  Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties.  However stinky that assertion is, if there’s no touring or touring is severely cut back, then piracy and streaming income becomes even more important.

We will review various typical categories of insurance policies and then consider a few actions government could take to offset decisions to foreclose opportunities to work by local musicians and also to essentially shut down local venues.  Since insurance is likely to be unavailing, we will emphasize the importance of working with local musicians and venues to preserve the creative class in cities like Austin.  Because the City of Austin took the action to cancel SXSW, this role falls on government agencies devoted to the commercial music business, such as the Austin Music Office, but also other boards and commissions such as the Austin Music Commission.

I understand that the Mayor believed himself to be acting prudently in cancelling SXSW, and I neither commend nor criticize his decision.  Yet there are consequences from his decision that he has set in motion, and the Mayor needs to deal with those consequences, too.


A typical way to address impossibility or force majeure is through insurance of various types.  Unfortunately, in the overwhelming majority of cases, diseases (and therefore epidemics) are excluded unless you have taken specific steps to include an endorsement for that purpose—assuming an endorsement is even available or available at a realistic price.  According to press reports, even SXSW did not have epidemic insurance endorsements to their wide ranging risk coverage.

Let’s consider different types of common insurance policies, but let’s also remember the cynic’s guiding principle of insurance—insurance companies exist to charge you a premium so they can deny coverage.  Almost every case will require policy interpretation and probably litigation.  My bet is there’s going to be lots and lots of litigation due to insurance claims being denied regarding the coronavirus.

Homeowners and Umbrella Personal Liability Coverage:  In a standard “HO3” homeowners policy, transmission of a communicable disease causing bodily injury or property damages is probably excluded (check the “Liability Coverages” paragraph).  Umbrella policies may cover communicable disease other than STDs, so it’s worth checking that coverage.  Travel insurance may cover cancellation due to emergency medical treatment for the traveler but you need to read that policy closely because coverage will turn on definitions as epidemics are probably excluded.

Cancellation Or Non-Appearance Coverage:  Traditional event cancellation or non-appearance insurance is offered by companies like Beazley or K&K/Aon and covers expenses and/or profits from a wide variety of events and perils.  (AEG famously insured its costs for Michael Jackson’s non appearance at 50 shows for the O2 Arena in London.)  These are often big-ticket policies which typically cover power failure, damage to leased or rented venues,  lack of access to the venue, failure of public transport facilities or denial of access (such as a terrorist attack or explosion), earthquakes, labor strikes, inability to erect facilities or staging at the venue, failure of broadcasts, and other previously unforeseen cause that is not the subject of an exclusion.   The policy also can cover both cancellation and non-appearance of key personnel for reasons of death or illness, as well as disease outbreak if not excluded, or just nonappearance. Larger policies are usually written through Lloyds of London or use Lloyds as a “reinsurance” guarantor.  It is almost certain that coronavirus will be excluded for policies written after January 2020, and of course these policies will have force majeure clauses.  Because these insurance contracts are essentially bespoke risk coverage for particular events, they will usually be very clear about what the carrier does and doesn’t cover.

Civil Authority Coverage:  If a shutdown of operations occurs due to a government order, civil authority coverage may be extended to include a disease outbreak.  This coverage was sold during the 2014 Ebola outbreak to cover losses from a government ordered shutdown of your business, a supply chain disruption, or a government ordered shutdown of common carriers such as airlines, ferries, trains and the like.  Those Ebola-related coverages were typically sold as an endorsement to a commercial property program.  If the harm can be shown to be the result of government action, it’s possible that civil authority coverage may offer some relief.

Commercial General Liability:  CGL policies may include “disease” in the definition of “bodily injury.”  Unless otherwise excluded, a venue with CGL might be covered if it did not take adequate precautions that helped spread the coronavirus.  Exclusions could be direct exclusion of communicable diseases, excluding pollution, or other exclusions.

Commercial Property Coverage:  Probably not covered unless a specific endorsement.

Business Interruption Coverage:  If your business closes because your employees are ill due to a disease outbreak, economic losses are probably not covered.  But—if the presence of disease on your business property constitutes “pollution”, you may have coverage for physical property damage due to the disease.

Contingent Business Interruption Coverage:  Usually coverage for you if your customer or vendor fails, but again if that loss is due to a disease outbreak, you are probably not covered absent a specific endorsement.

Environmental Insurance:  These policies may cover losses for bodily injury, clean up and property damage caused by “pollution” which may include viruses and bacteria.  However, it’s common to specify particular bacteria such as Legionella bacteria.

Supply Chain Insurance:  We are beginning to understand the strategic impact of locating so many elements of the U.S. supply chain in China.  Supply chain risk coverage typically would not require losses to physical property, just economic loss due to a supplier’s shut down or other disconnect.

Sovereign Disaster Risk:  Just for reference, the World Bank issues a parametric catastrophe bond that covers pandemic risks as part of its Pandemic Emergency Financing Facility.  The World Bank also sells pandemic risk swaps.  The International Bank for Reconstruction and Development also issues “capital at risk notes” designed to transfer the pandemic risks of low income countries to the global capital markets.  If this has a “Big Short” feel to it, let’s hope not.

Economic Development Action

It is unlikely that insurance is going to help solve the economic loss from cancellation of major tours, concerts and festivals.  Therefore when a government takes action that creates a sudden economic contraction, government should also be prepared to take ameliorative action that helps support local businesses.  In the case of SXSW, there are many downtown businesses that make their year during SXSW, or a good portion of their annual revenues.

If those businesses, especially venues, cannot make payroll or rent, they will close.  As we saw from the Austin Music Census, landlords already are trying to raise rents beyond what venues can reasonably pay, so we have to assume that they will be more than happy to let venues out of their leases—never to return.  If enough venues close—already an endangered species in Austin—then there will be less and less reason to brand Austin as the “Live Music Capitol of the World” and the entire character of the city may change.

Economic Stimulus:  “Affected Venues” and “Affected Musicians” should be criteria based categories of individuals who would be eligible for relief.  State and local governments have some economic levers available to them such as utilities and tax relief.  The Mayor of Austin and mayors of other affected cities should take steps to obtain any federal disaster relief funding available for Affected Venues and Affected Musicians relating to coronavirus (perhaps as part of the federal coronavirus funding).

Tax Relief:  Restaurants large and small, hotels, and others in the hospitality industry as well as supermarkets have no doubt stored large stockpiles of perishable foods in anticipation of SXSW visitors.  There are a lot of hungry people in Central Texas–just ask the Central Texas Food Bank.  Austin has more nonprofits per person than any other city in the country.  These restaurants know where to take their unused food, but give them extraordinary and immediate tax reduction for giving away this food.

Revision of Quarantine Laws:  If decisions are taken by state and local authorities to exercise state police powers to give effect to quarantines or quarantine zones, it is likely that their will be a wave of new legislation to target those powers as most existing quarantine laws have been on the books over 50 years due to the decline in infectious disease.  (A review of quarantine authority was listed as a priority for state governments in the President’s 2002 National Strategy for Homeland Security, but it’s doubtful much was done.)

I will return to this topic in coming weeks and months, but I think a few conclusions are obvious:  First, there may well be a cascading effect of a wide variety of entities reviewing and potentially exercising any force majeure rights they have in existing agreements.  Force majeure clauses will be closely scrutinized in future agreements.  Like force majeure rights in contracts, insurance policies will be closely scrutinized and coverage will likely be litigated.

But the most obvious conclusion is that state and local governments wishing to preserve the cultural and economic base of their cities and regions once this contagion passes must be proactive with alternatives if they are going to order an entire industry to shut down.




Copyright Office Unclaimed Royalties Study Meeting 12/6/19


One of the loose ends from Title I of the Music Modernization Act is how the Congress is going to permit the Mechanical Licensing Collective and the Digital Licensee Coordinator to process the “black box” or unclaimed royalties.   It’s common to hear people using the experience with various private settlements as a guide for how to handle the MLC’s black box.  It is said that a small percentage of the black box was actually claimed, so it’s the fault of those who failed to make their claim that they missed out.

There may be a kernel of truth in that, but the real question is why was there such a small percentage claimed in the first place?  Wouldn’t the administration of settlements with poor claiming history be an example of what not to do in the future?  Certainly with a government mandate forcing the issue?

Congress clearly recognized their oversight role on the black box by mandating the Copyright Office conduct an unclaimed royalties study to develop best practices:

Not later than 2 years after the date on which the Register of Copyrights initially designates the mechanical licensing collective…the Register,in consultation with the Comptroller General of the UnitedStates, and after soliciting and reviewing comments and relevant information from music industry participants and other interested parties, shall submit to the Committee on theJudiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that recommends best practices that the collective may implement in order to—

(A) identify and locate musical work copyrightowners with unclaimed accrued royalties held by thecollective;

(B) encourage musical work copyright owners to claimthe royalties of those owners; and

(C) reduce the incidence of unclaimed royalties.

The Copyright Office held the first public consultation on the study last December, and posted a video of the meeting that is well worth watching.  As I noted in an MTP post last year:

There are two currently existing standards that the Copyright Office can reference for examples of industry best practices-the SoundExchange unclaimed royalty search for new members and the Lowery-Ferrick Spotify class action Songclaims portal powered by Crunch Digital.  It seems inescapable that these claiming standards should be guideposts for both the Copyright Office and the Copyright Royalty Judges.

Having such clear cut standards–already operational so not theoretical–is fortunate because it seems obvious that the Congress is both concerned with the black box distributions not being gamed and also intends to exercise its statutory authority to retain oversight over the Mechanical Licensing Collective’s operations.  In fact, Senator Grassley specifically stated in his questions for the record following the Copyright Office oversight hearing that:

“The success of the Music Modernization Act (MMA) will depend, to a large extent, on the effective and efficient operation of the Mechanical Licensing Collective (MLC). The MMA included provisions to ensure that there was robust ongoing oversight of the MLC by both the Copyright Office and Congress, and that the new MLC would be accountable to the stakeholders.”

We’re All In It Together: Independents File “Friend of the Court” Brief in Google v. Oracle


Helienne Lindvall of the Ivors Academy, David Lowery of Cracker and Camper Van Beethoven, Blake Morgan of #irespectmusic and the Songwriters Guild of America joined in a friend of the court brief supporting Oracle in Google’s appeal of its losing argument in a copyright case involving Google’s taking of Oracle’s Java code without a license.  Oracle won the case on two different occasions at the Federal Circuit, but Google appealed to the Supreme Court which of course is their right.

I got to co-write the brief as co-counsel with my friend Charles Sanders, long time counsel for SGA.  You can read it here.

SCOTUS Brief Cover Page

Oracle had nice things to say about our brief:

There will also be numerous Amicus Briefs filed shortly on the side of strong copyright protection for expressive and creative works including computer software. One brief, filed by the Songwriters Guild will state: “There are untold riches in running the Internet of other people’s things.” Only a songwriter could so eloquently capture the essence of this case, and Google’s business practices. We wish we would have thought of that line ourselves, but we didn’t, so we repeat it here (with credit and permission).

One of the accomplishments in our brief was that we were able to bring the words of artists and songwriters like Zoë Keating, Kerry Muzzey and the indefatigable artist advocate and five-time Grammy winner Maria Schneider before the Court.  All of them have written eloquently of the reality of being an independent up against the biggest corporations in the world.  We were happy to put their voices before the highest court in an important copyright case.

Stay tuned.  Google’s reply brief is coming soon and oral argument is scheduled for March 24.

@SenThomTillis and Other Members of Congress Question ContentID–Again

ContentID has a lot of potential and in many respects is similar to the SNOCAP audio fingerprinting application from 2005–very similar.  Quite similar.  Although if the SNOCAP team got back together using current technology, that tool could be much more broadly applied including to search.  Which makes me ask why Google isn’t doing the same with their endless resources.

Here’s an excerpt from the Member’s letter about Content ID:

Tillis Letter

Read the letter here

Save the Date: User Centric: Streaming Gentrification or Fairness at SXSW

I’m pleased to be moderating a panel on user-centric streaming royalties with some of the smartest people in the music business at SXSW on Thursday, March 19 at 3:30.  Helienne Lindvall from Ivors Academy, David Lowery of Cracker and Camper Van Beethoven and Portia Sabin from the Music Business Association will join me in a discussion of this important topic that seems to pick up support daily.

Please put us on your calendar if you’re coming to Austin for the conference!  We really want this one to be collaborative with the audience.  Watch this space for further updates.  If you are new to the topic, a good place to start is the “ethical pool” post from last year.

SXSW User Centric

UK Government Rejects EU Copyright Directive: Square One for Value Gap in UK

Sometimes it sucks to be right.

According to PRS, the UK government has confirmed that the UK will not be implementing the European Copyright Directive (which passed the EU Parliament and is currently in the implementation stage).  Remember that the whole point of a big chunk of the Copyright Directive was to rein in Google’s abuse of Europe’s version of the DMCA safe harbor.  Called the “value gap”, the idea was that Google profits from the safe harbor whack a mole that we’re all familiar with due to a loophole in both US and EU copyright law.

Having passed the EU Parliament, the 28 (soon to be 27) countries of the EU have a two year window to transpose the Directive into national law which is currently underway.  However–because Brexit will become effective after the Directive was passed but before the UK has promulgated transposing legislation, the position of the newly elected Johnson government is that the UK will not be adopting transposing legislation and instead go its own way.

The PRS/M Magazine site tells us:

[I]n a written parliamentary exchange MP Chris Skidmore, confirmed that any changes to the UK’s copyright framework would fall under the domestic policy process.

Written questions allow Members of Parliament to ask government ministers for information on the work, policy and activities of government departments.

He was responding to a question from Jo Stevens, MP for Cardiff Central, who enquired: ‘What plans the Government has to bring forward legislative proposals to implement the EU Copyright Directive in UK law.’

Chris Skidmore, Minister of State at the Department for Education and the Department for Business, Energy and Industrial Strategy, responded: ‘The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.’

The statement follows Culture Minister Nigel Adams’ pledge for a new music strategy to ensure the UK music industry remains the envy of the world, but he also hinted that the Directive was under threat.

Adams said: ‘We support the overall aims of the Copyright Directive. But our imminent departure from the EU means we are not required to implement the Copyright Directive in full.

I anticipated this might happen in a post on Artist Rights Watchcritical of the incorporation of the DMCA and Section 230 safe harbors into the US Mexico Canada Agreement (USMCA).  What it means is that the UK is back to square one on the value gap.  It also means that USMCA is a bad precedent for artists in US bilateral trade agreements which it seems will now have to be negotiated with the UK.

Getting the DMCA incorporated into USMCA is, let’s face it, a major lobbying victory for Google that takes the sting out of big losses in the European Parliament on the European Copyright Directive.

But see what they did there?  Google are having trouble stopping the headlong defense against its safe harbor abuse through the front door, so they make an end run by lobbying for language in USMCA that gives them their treasured “groovier than thou” safe harbor privilege.  That privilege saves Google and other Big Tech publishers from complying with the law same as anyone else, from copyright infringement to profiting from illegal goods to advertiser fraud.  And now of course they want USMCA to become a model for all other trade agreements–including, no doubt the coming bilateral agreement with the UK after Brexit.

That is what we need to stop cold in its tracks.  And by “we” I mean all creators–not just music, but artists in all copyright categories.

This is one to keep an eye on and there will be more on this in coming days.

Sold Out or Not Sold? 2019 physical supply chain disaster may present opportunities for entrepreneurs

If you’re someone who shops for vinyl or compact discs at your local independent record store, you may have noticed something odd has been happening.   “We don’t have that” particular title, even hit product is becoming a frequent response.  Of course, all these titles are available day and date on digital music services so guess how the average consumer reacts to a record not being available at the record store?

The reason why this set piece is playing out at an increasing rate is because of a change in how major label distributors (ADA, the Orchard, Sony, Universal and WEA) are servicing their accounts at the retail and wholesale levels.  All these companies recently shifted their physical distribution to a company called Direct Shot.  And it’s been a disaster.  One that’s proving difficult to reverse.  So when you hear that physical sales are declining, remember that you can’t sell what you don’t have.

If I had to bet, my bet would be that someone in the corporate ivory tower (possibly influenced by the potential riches from a certain public stock offering) decided that physical is over and found some of the dreaded consultants to tell them what time it was with their own watch rather than telling them their watch was broken.  The entire decision to pool all their physical releases into one untried company just reeks of the kind of Powerpointism that these consultants specialize in.

Full disclosure:  PolyGram sent around some suits from the Boston Consulting Group to analyze why A&M was the most successful PolyGram label.  I said to one of these people “We make great records by compelling artists and bust our assess trying to help them find an audience and we stick with them for two or three albums.  Put that in your management template if you have need of data.  Now out you go.”  The problem for consultants is that each of those elements requires PEOPLE who do the actual work and that work cannot really be quantified because it’s a black box.  Or as a great songwriter once said, “stoking the star making machinery behind the popular song.”

This decision to combine and outsource physical distribution has led to a number of issues that have a cascading effect of horrors by the time the snowball reaches the consumer.  Why do we care? It’s important to realize that physical configurations contributed to 25% of global recorded music revenues in 2018.  Vinyl alone accounts for 3.6% of global revenue.    In a world where market share is how major labels measure themselves, I have to believe that if a label president were asked to give up 25% of worldwide billings they would say no thanks–as would their shareholders.

So why is the current crisis at retail allowed to continue?  Good question.  It creates the self-fulfilling prophecy that physical is a silly configuration that only the backward people care about.  So why not just let the artists get their own CD and vinyl manufacturing done on their own outside the label distribution system?  Oh, no.  Can’t do that.  Try doing that sometime and you’ll get led around in circles that eventually leads you back into the very system you wanted to get away from.  In other words, go nowhere.

Because this system is coming apart, it may produce opportunities for entrepreneurs to assist the artists, their managers, wholesalers (sometimes called “one-stops”) and retailers.

A few key problems.

First–missed release dates.  Realize that the marketing plan for every record uses the release date as the target date that a variety of efforts to stimulate demand come to the first culminating point of the effort and probably the last one that the company has under its control.  The run up to the release date (called the “key dates schedule” or comparable term) usually starts about 90 days prior to release (at least) and coordinates the efforts of multiple departments in the label and sometimes in multiple countries.

It may seem obvious that having created demand, one must also have created supply.  It appears that Direct Shot cannot be relied on to get product into the stores.  So having created demand, the label lacks supply.  Someone needs to hand walk the units through the process–this used to be the job of the product manager, but those people seem to have become digital only.

Artists may have a guaranteed release date in their exclusive recording agreements.  If the artist’s lawyers are on top of it, they may amend the typical release commitment to specify physical release (otherwise a label could simply call Spotify streaming a satisfaction of the release commitment).

Why is this important to the artists?  Aside from the marketing support provided by local retail such as “in stores” or shows at the retailer’s shop, artists usually sell CDs or vinyl at shows, to fan clubs, and at merch sites.  If the shops can’t get the physical product, the artists probably can’t either.

When you consider for a new artist that the artist’s shows (including in-stores) are the most likely place that the fan will intersect with the artist, failing to have product available at these intersections is a real problem.  Plus artists make 1000 times more profit from selling a CD than they will from a stream or even a “album equivalent” number of streams.  Not to mention the cash flow aspect of selling a box of CDs today gets the artist the money today.’

And speaking of cash flow… Record stores operate on thin margins supported by discounts and credit terms.  Most typically, a store has 30 days to pay for CDs.  By failing to deliver on time (and sometimes 8 weeks late), the store is denied the opportunity to sell the records they ordered so as to pay for the order from cash flow generated by sales.  Knowing how much to order and how fast it will sell is part of being a successful retailer (or wholesaler) and is the mirror image of being a good inventory manager and sales executive at a record company.

The problem with missed release dates is that it creates a mismatch in the supply chain.  Some who can order directly from manufacturing plants or further up the supply chain may have units, often the one-stops.  However, if the retailer cannot buy directly from the distributor and is forced to go to the one-stop to get all their product, they have to pay a mark up to the one-stop to cover the one-stop’s profit.  That means that already thin margins are stretched even tighter or that product becomes more expensive to already price-sensitive consumers.

Financing these operations more creatively may present an opportunity.

And then there are event-driven records like soundtracks and compilations.  These titles really suffer from missed release dates because it’s not like a band can reroute their tour to come back to support a blown release date by their record company.  A missed release date is compounded by the refusal of labels to let soundtracks participate in streaming revenue for licensed tracks despite the fact that soundtracks juice individual tracks for chart position.

Soundtracks are a very small part of a movie release marketing plan and once that’s blown it’s gone.  Not only are there marketing issues, but there’s also a possibility that the failure to fully meet a release date may result in a breach of the soundtrack agreement with the label.  As film makers get wise to typically blown release dates, they may start asking for more concrete terms from labels.

This also creates an opportunity for entrepreneurs to organize an effort from former physical sales and distribution personnel to offer custom programs for soundtracks and event driven physical releases.

It’s not as sexy as Spotify but remember–physical is 25% of the business and has real hard core music fans as consumers (not to mention one-stops and retailers).  Unlike digital where people go to get rich off the stock, physical is where you go if you love music.  If this interests you, you’ll at least be among people who truly share your passion for music.

You may also want to read the open letter from retailers to the major labels that appeared earlier this year, as well as an in depth post about the Direct Shot debacle in the MusicBiz blog, and listen to this in-depth podcast from The Future of What.




Defiance or Collaboration? The Role of the Presidential Signing Statement in MLC Board Appointments

Even though they have a long history, Presidential Signing Statements are not exactly front and center in every civics class or constitutional public law class in America.  You may be hearing about them for the first time now.  But that doesn’t mean they have not been an important part of Constitutional law-making and jurisprudence.

Presidential Signing Statements were first used by President James Monroe in 1822 in the form of a “special message” to the Senate. Presidents Andrew Jackson, John Tyler and Ulysses Grant also issued signing statements, but they were used infrequently until the 20th Century.  Then their use picked up quite a bit starting with President Theodore Roosevelt and continuing to the present day.  So the use of Signing Statements is quite bipartisan.  While Signing Statements may not themselves have any actionable legal effect, they should not be ignored, either.

The MMA Presidential Signing Statement

Not surprisingly, there is a Presidential Signing Statement accompanying the Music Modernization Act (“MMA”) specifically relating to Title I and at that specifically relating to the MLC board appointments.  The relevant language is:

One provision, section 102, authorizes the board of directors of the designated mechanical licensing collective to adopt bylaws for the selection of new directors subsequent to the initial designation of the collective and its directors by the Register of Copyrights and with the approval of the Librarian of Congress (Librarian). Because the directors are inferior officers under the Appointments Clause of the Constitution, the Librarian must approve each subsequent selection of a new director. I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.

Let’s explore why we should care about this guidance.

According to Digital Music News, there have been changes at the Mechanical Licensing Collective, Inc. (“MLCI”) the private non-profit permitted under Title I of the MMA:

[I]t appears that two separate MLC board members are jumping ship.  The details are just emerging and remain unconfirmed, though it appears that two members — one representing indie songwriters and the other on the publishing side — are out of the organization.

Because the board composition of MLCI is preemptively set by the U.S. Copyright Act along with many other aspects of MLCI’s operating mandate, the question of replacing board members may be arising sooner than anyone expected.  As MLCI is a creature of statute, it should not be controversial that law-makers play an ongoing role in its governance.

The Copyright Office Weighs In

The Copyright Office addressed board appointments for MLCI in its first request for information for the designation of the Mechanical Licensing Collective (83 CFR 65747, 65750 (December 21, 2018) available at

The MLC board is authorized to adopt bylaws for the selection of new directors subsequent to the initial designation of the MLC. The Presidential Signing Statement accompanying enactment of the MMA states that directors of the MLC are inferior officers under the Appointments Clause of the Constitution, and that the Librarian of Congress must approve each subsequent selection of a new director. It also suggests that the Register work with the MLC, once designated, to address issues related to board succession.

When you consider that MLCI is, for all practical purposes, a kind of hybrid quasi-governmental organization (or what the Brits might call a “quango”), the stated position of the President, the Librarian of Congress and the Copyright Office should not be surprising. 

Why the Controversy?

As the Songwriters Guild of America notes in comments to the Copyright Office in part relating to the Presidential Signing Statement (my emphasis):

Further, it seems of particular importance that the Executive Branch also regards the careful, post-designation oversight of the Mechanical Collective board and committee members by the Librarian of Congress and the Register as a crucial prerequisite to ensuring that conflicts of interest and bias among such members not poison the ability of the Collective to fulfill its statutory obligations for fairness, transparency and accountability. 

The Presidential Signing Statement, in fact, asserts unequivocally that “I expect that the Register of Copyrights will work with the collective, once it has been designated, to ensure that the Librarian retains the ultimate authority, as required by the Constitution, to appoint and remove all directors.”

SGA regards it as a significant red flag that the NMPA-MLC submission to the Copyright Office devotes the equivalent of ten full pages of text principally in attempting to refute this governmental oversight authority, and regards the expression of such a position by NMPA/MLC as arguably indicative of an organization more inclined towards opaque, insider management control than one devoted to fairness, transparency and accountability.

So the Presidential Signing Statement to the MMA is obviously of great import given the amount of ink that has been spilled on the subject.  Let’s spill some more.

How might this oversight be given effect and will it be in the public record or an informal process behind closed doors?  Presumably it should be done in the normal course by a cooperative and voluntary collaboration between the MLC and ultimately the Librarian.  Minutes of such collaboration could easily be placed in the Federal Register or some other public record on the Copyright Office website.  Failing that collaboration, it could be done by either the Department of Justice (unlikely) or by individuals (more likely) asking an Article III court to rule on the issue.  

Of course, the issue should not delay the Copyright Royalty Judges from proceeding with their assessment determination to fund the MLC pursuant to the controversial voluntary settlement or otherwise.  One could imagine an oversight role for the CRJs given that Congress charged them with watching the purse strings and the quantitative implies the qualitative.  The CRJs have until until July 2020 to rule on the initial administrative assessment and appeal seems less likely today given the voluntary settlement and the elimination of any potential objectors. 

Since the Title I proponents drafted the bill to require a certain number of board seats to be filled by certain categories of persons approved by Congress in a Madisonian balance of power, the Presidential Signing Statement seems well grounded and furthers the Congressional mandate.

Yet there is this conflict over the Presidential Signing Statement.  What are the implications?

A Page of History is Worth A Volume of Logic

The President’s relationship to legislation is binary—sign it or veto it.  Presidential Signing Statements are historically used as an alternative to the exercise of the President’s veto power and there’s the rub. 

Signing Statements effectively give the President the last word on legislation as the President signs a bill into law.   Two competing policies are at work in Presidential Signing Statements—the veto power (set forth in the presentment clause, Article I, Sec. 7, clause 2), and the separation of powers. 

Unlike some governors, the President does not enjoy the “line item veto” which permits an executive to blue pencil the bits she doesn’t like in legislation presented for signature.  (But they tried–Line Item Veto Act ruled unconstitutional violation of presentment clause in Clinton v. City of New York, 524 U.S. 417 (1998).) The President can’t rewrite the laws passed by Congress, but must veto the bill altogether.  Attempting to both reject a provision of a new law as unconstitutional, announce the President’s intention not to enforce that provision AND sign the bill without vetoing it is where presidents typically run into trouble.

Broadly speaking, Presidential Signing Statements can either be a President’s controversial objection to a bill or prospective interpretive guidance.  Signing Statements that create controversy are usually a refusal by the President to enforce the law the President just signed because the President doesn’t like it but doesn’t want to veto it.  Or to declare that the President thinks the law is unconstitutional and will not enforce it for that reason—but signed it anyway.  

The President can also use the Signing Statement to define or interpret a key term in legislation in a particular way that benefits the President’s policy goals or political allies.  President Truman, for example, interpreted a statutory definition in a way that benefited organized labor which was later enforced by courts in line with the Signing Statement.  President Carter used funds for the benefit of Vietnam resisters in defiance of Congress, but courts later upheld the practice—in cases defended by the Carter Justice Department.  The practice of using Presidential Signing Statements is now routine and has been criticized to no avail for every administration in the 21st Century including Bush II, Obama and now Trump. 

Since the 1980s, it has become common for Presidents to issue dozens if not hundreds of Presidential Signing Statements during their Administration.  So it should come as no surprise if the Department of Justice drafted up the statement for the MMA prior to it being presented to the President to be signed into law.  (See the American Presidency Project archives

Defiance or Collaboration?

What does this mean for the MMA?  The President certainly did not call out the statutorily required board membership of the MLC as an unconstitutional overreach that he would not enforce.  To the contrary, the MMA Signing Statement expresses the President’s desire that the legislation comply with the requirements of the Constitution.  

Moreover,  the MMA Presidential Signing Statement is not a declaration about what the President will or won’t enforce but rather interprets a particular section of a long and winding piece of legislation.  (Title I principally amended Section 115 of the Copyright Act—now longer than the entire 1909 Copyright Act.)  This kind of interpretation seems to be consistent with the practices of prior Presidents of both parties, not an end-run around either the veto power or separation of powers.

Failing to acknowledge the admonition of the signing statement would seem an unnecessary collision both with long-standing jurisprudence and with a sensible recommendation from the President of how the Librarian, the Copyright Office and the Justice Department expect to approach the issue in collaboration with the MLCI.  That’s possibly why the Copyright Office restated the Signing Statement in the RFP.

Title I of the MMA is a highly technical amendment to a highly technical statute.  A little interpretive guidance is probably a good thing.  Collaboration certainly makes more sense than defiance.