@robertblevine_: Legacy Artists File Brief in Lawsuit Against Pandora Over Pre-’72 Recordings

[Editor Charlie sez: Failing to pay pre-72 artists the digital royalties they are entitled to is another example of how Big Tech forces wasteful lawsuits–and cons the industry into false choices on “omnibus” legislation!]

A veritable supergroup’s worth of sixties musicians on Friday (Jan. 12) filed an amicus brief in a California lawsuit against Pandora for its use of sound recordings made before 1972, and thus not covered by federal law. Although the issue in the case — originally brought by Flo & Eddie, Inc., which owns the Turtlesrecordings, and currently before the California Supreme Court — is fairly obscure, the artists are anything but. The amici artists include Carole King, Melissa Etheridge and Doors drummer John Densmore; the estates of Hank Williams and Judy Garland; and companies like the Beatles’ Apple Corps., Grateful Dead Productions and Experience Hendrix.

At stake is whether, and how, non-interactive streaming services like Pandora need to compensate performers and labels for their use of older recordings that are still covered by state law. The music industry has also been lobbying for a legislative answer to the question, and the recently introduced CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) would require digital services to pay for the use of recordings made before 1972. On Jan. 26, the Friday before the Grammy Awards, the House Judiciary Committee will hold a “field hearing” in New York on this and other copyright issues, according to multiple sources.

Read the post on Billboard

Nicole Haff & Cassie Daum: Timed Out and Tuned Out: The Forfeiture of Unclaimed Royalties and the Loss of Meaningful Access to Litigation Under the Music Modernization Act

[It was only a matter of time–the controversial Music Modernization Act is producing new legal analysis showing it’s not what it’s cracked up to be!]

On December 21, 2017, the Music Modernization Act of 2017 (H.R. 4706) was introduced in the House of Representatives.  The bill seeks to modernize the U.S. music licensing system by (1) creating a not-for-profit mechanical licensing and royalty collective to collect and distribute mechanical royalties from interactive streaming services, such as Spotify, Apple Music, Pandora, Google Play Music, Tidal, and others, (2) requiring Copyright Royalty Judges to establish rates and terms that would have been negotiated in the free market between a willing buyer and willing seller by examining economic, competitive and programming information, such as the rates that recording artists earn, and (3) changing the rate court procedure for ASCAP and BMI, the two largest performing rights organizations in the U.S., by randomly assigning federal court judges from Southern District of New York to each rate setting proceeding.

While many in the music industry welcome this bill, smaller publishers and musicians may be surprised to learn that several of the provisions in the Music Modernization Act may harm their interests.

Read the post on SGR Law

@musictechpolicy: Shocker: Is Spotify Lawyer Leading “Scholarly” Project to Create Fake Treatise?

The anti-copyright crowd have a few different ways to turn astroturf into deceptively scholarly work product.  One way is to take over otherwise credible brands to insert their own truthiness.

In a highly predictable move, the American Law Institute, a reliable old brand in the law, appears to have had some sudden interest in writing up a “Restatement of Copyright” treatise.  The ALI’s restatements of the law have been around a very long time, but they mostly deal with bodies of law that rely heavily on judge-made law such as agency, property or contracts.

The advantage of having a Restatement that says what you want it to say is that those toiling against artists and songwriters can cite it as an authoritative source in legal briefs, scholarly writings, amicus briefs, etc.  Handy, eh?

The ALI Restatement of Copyright seems to have been the brainchild of one Pamela Samuelson, she of the Samuelson-Glushko technology and policy legal academic centers–Silicon Valley’s answer to the Confucious Institutes.  The project is nominally under the watchful eye of Professor Christopher Sprigman, from whose intellectual loins sprang Spotify’s defense of “sorry just kidding” in the Bluewater lawsuit for Spotify’s alleged nonpayment of mechanical royalties.  Sprigman is trying to convince the court that mechanical royalties don’t exist, don’t you know.

The Restatement of Copyright has been on the horizon for quite some time as it takes a lot of effort to produce one of these treatises.  So naturally, one must ask–why the sudden interest at the American Law Institute in such a costly project that we’ve struggled along without for a hundred years or so?  You don’t suppose someone is…paying for the costs of this work?  And who might be interested in picking up the tab for the project?

Perhaps the same company that paid for five–count ’em–five–research projects by Professor Sprigman.  That we know of.

According to the useful “Google Academics, Inc.” database created by the Google Transparency Project, Google funded these articles co-written by Sprigman (two of which criticize moral rights):

Valuing Publication And Attribution In Intellectual Property: Sprigman, Christopher, Christopher Buccafusco, and Zachary Burns. “Valuing Publication and Attribution in Intellectual Property.” (2012)

What’s A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property:  Sprigman, Christopher Jon, Christopher Buccafusco, and Zachary C. Burns. “What’s a name worth?: Experimental tests of the value of attribution in Intellectual Property.” (2013)

What’s In, And What’S Out: How IP’s Boundary Rules Shape Innovation:  McKenna, Mark P., and Christopher Jon Sprigman. “What’s In, and What’s Out: How IP’s Boundary Rules Shape Innovation.” (2016)

Experimental Tests Of Intellectual Property Laws’ Creativity Thresholds, Buccafusco, Christopher, Zachary C. Burns, Jeanne C. Fromer, and Christopher Jon Sprigman. “Experimental tests of Intellectual Property laws‰Ûª creativity thresholds.” (2014)

Innovation Heuristics: Experiments On Sequential Creativity In Intellectual Property:  Bechtold, Stefan, Christopher Buccafusco, and Christopher Jon Sprigman. “Innovation heuristics: experiments on sequential creativity in Intellectual Property.” Ind. LJ 91 (2015): 1251

And speaking of astroturf, what’s also interesting is that Sprigman appears to have filed comments in Copyright Office moral rights study that incorporated concepts in Google-funded papers and cited to one of them without disclosing Google’s funding as far as I can tell. (https://www.regulations.gov/document?D=COLC-2017-0003-0019).

So a perfect lawyer to advance the interests of Spotify, the savior of the music business and to gift the legal community with the Restatement of Copyright, a crystalization of his genius.

Lucky us.

Meet the New Boss, Worse Than the Old Boss: YouTube says “All Your Video Are Belong to Us”

Exposure Bucks

Hypebot reports that:

YouTube has yet again raised the threshold that a creators and musicians must meet to make any money on the videos they post. YouTube says that the changes are designed to “prevent bad actors from harming the inspiring and original creators around the world who make their living on YouTube.” [Yes, just looking out for your best interests.] But the result is that it will take musicians and creators a lot longer to make a dime on the video service.

Starting today, YouTube is changing its eligibility requirement for monetization to 4,000 hours of watch time within the past 12 months and 1,000 subscribers per channel.

As YouTube’s public policy flack told the U.S. Senate today:

At YouTube, we believe the world is a better place when we listen, share, and build community through our stories. Our mission is to give everyone a voice and show them the world. With this comes many benefits to society — unparalleled access to art and culture, news and entertainment, and educational materials.

Yes, that’s right.  That’s what she said.  She left out the data scraping part.

So if you’re a new artist, enjoy those exposure bucks.  Might cover the cost of DMCA notices.

 

Is it Time for the Inspector General to Review the Copyright Office’s Administration of Address Unknown NOIs?

If you haven’t been following the address unknown NOI debacle, you can get up to speed with my recent article on the subject for the American Bar Association Entertainment & Sports Lawyer.  If you have been following, you’ll know that the Copyright Office has accepted millions upon millions of address unknown NOIs that implicate repertoire from all over the world.

The punchline–if all a digital music service needs to do in order to claim they have a licene to reproduce and distribute a song is send a notice to the Copyright Office is send a notice saying they can’t find the song copyright owner, how hard do you think they’ll look?  Particularly if they know that the Copyright Office won’t check?

And that is where the Inspector General comes in.  Formed by the Inspector General Act of 1978, there are 73 Inspectors General in the US government, including the Library of Congress (which is where the Copyright Office is currently housed).  There are also inspector generals for the Department of Commerce and the Department of Justice, two other branches where the Copyright Office might end up some day.

If there were ever a situation that cried out for review and investigation by the Inspector General, it is the address unknown NOI filings where Big Tech is running roughshod over songwriters.

For example, we did some spot checking on the NOI filings.  Remember, the address unknown NOI is only available if the copyright owner is not identifiable in the public records of the Copyright Office, notwithstanding the CO’s own position by regulation (for service of termination notices) that a search of the Copyright Office records and the ASCAP, BMI, GMR or SESAC databases would also suffice.

For example, here is an address unknown from Google for Sting’s song “Fragile” which supposedly was not identifiable in the public records of the Copyright Office:

Sting Fragile Google NOI

and here is the registration for “Fragile” in the public records of the Copyright Office:

Fragile Song Registration

Not only has the NOI for “Fragile” been served improperly, it raises the question of just how many other of the address unknown NOIs have been improperly served.  Even if we were to assume a 1% error rate (and I for one firmly believe it is much, much higher), that is 550,000 songs that have been improperly served.  While the assumption might be that only the obscure works would be included in these filings, the Sting example suggests that is not the case.

But–because no one is checking to confirm proper notice, that means that there is no protection against moral hazard and loophole seeking behavior by some of the biggest corporations in the world, including monopolists like Google and Spotify.  Since the Copyright Office refuses to do this work by fiat (see 37 C.F.R. § 201.18(g)), it logically falls to the Inspector General to determine both if the Copyright Office has behaved properly and also if the law is being properly administered to allow 55,000,000 (plus) songs to be exploited without compensation.

 

@lizpelly: The Problem with Musak

The music world continues to be exceedingly vulnerable, and there are looming questions that desperately need to be addressed. Most important: How can artists distribute and sell their work in a digital economy beholden to ruthlessly commercial and centralized interests?

Enter Spotify, a platform that is definitely not the answer. In fact, it only exacerbates such conundrums. Yet for now it has manipulated the vast majority of music industry “players” into regarding it as a saving grace. As the world’s largest streaming music company, its network of paying subscribers has risen sharply in recent years, from five million paid subscribers in 2012 to more than sixty million in 2017. Indeed, the platform has now convinced a critical mass that paying $9.99 per month for access to thirty million songs is a solid, even virtuous idea. Every song in the world for less than your shitty airport meal. What could go wrong?

Billionaires have thrown a lot of money at Spotify. As of September 2017, the platform has been valued at $16 billion by venture capitalists who see it as the next Netflix, and who have perhaps fooled themselves into trusting that this exploitative model will “save the music industry.” Spotify’s endgame, for now, is to go public. The company could be worth $20 billion by next year, when it will likely be listed on the New York Stock Exchange. According to Reuters, Spotify plans to file its intention of a public offering with U.S. regulators before the end of this calendar year and to go public in the first or second quarter of 2018. Bloomberg reports that it recently hired Goldman Sachs Group Inc., Morgan Stanley, and Allen & Co. to “assess its options.”

Read the post on The Baffler

@_davidturner_: Spotify Is in the Business of Selling You Spotify, Not Music

Make no mistake—Spotify is only interested in selling you Spotify.

On Monday, the Huffington Post’s contributor platform published a storyby #IRespectMusic founder Blake Morgan, detailing a heated exchange between him and an unidentified Spotify executive that took place in 2014. Titled “Spotify’s Fatal Flaw Exposed: How My Closed-Door Meeting with Execs Ended in a Shouting Match,” the piece was removed from the website hours after posting.

Morgan’s piece was reposted on the Trichordvist, a community blog that is, according to their website, “for those interested in contributing to the advancement of a Sustainable and Ethical Internet for the protection of Artists Rights in the Digital Age.”

Read the post on Track Record