In a welcome judgment this week, the European Court of Justice ruled that “the sale of a multimedia player which enables films that are available illegally on the internet to be viewed easily and for free on a television screen could constitute an infringement of copyright”.
Creators are, as Percy Shelley famously said, the unacknowledged legislators of the world. By legislators, he does not mean they are lawyers or politicians. What I think he is saying is that creators predict our future, they underpin our future and they create a framework, political and cultural, for our future.
To the extent that we allow voices like that to be compromised or marginalized our democracy suffers a great loss.
Should we get used to the way things are? Well, some of our politicians and virtually the entire techno-utopian community say yes. But why should we get used to this?
The citizens who opposed the brutal child labour regimes of the first Industrial revolution did not get used to that. They fought to change them and they did change them. They changed the world for the better.
We’re in the midst of what some are calling the Fourth Industrial Revolution. While it has ushered in a great boon, it has also ushered in great pains.
Mary and Percy Shelley fully understood this when they wrote “Frankenstein.” They understood that the unmediated introduction of new technology into society can create monsters.
But it does not need to, not if technology is accountable to all people.
Many times, I am asked to speak to student law associations and sometimes to artist associations. At these, there are frequent questions about the future of the arts in the era of unfettered internet exploitation. My response is usually in the form of a question:
“Did you hear that?
“Let me ask you again…did you hear that?”
(More silence and murmurs of confusion)
“That’s the sound that Spotify makes when it has no content.”
Which brings us to an Act introduced by Congressmen Darryl Issa and Ted Deutch on April 5, 2017. 1 The bill, informally known as the Performance Royalty Owners of Music Opportunity To Earn Act (PROMOTE Act) and more formally known as HR 1914, would for the first time create a legal right for the owner of a sound recording to pull their recordings from terrestrial radio airplay.
The bill itself is not complicated, running a mere 4 pages. It creates an addition to the exclusive rights contained in 17 USC 106, a seventh right, namely:
“[T]o prohibit performance of a sound recording publicly by means of a broadcast transmission (as that term is defined in section 114(k)) by a terrestrial radio station.”
However, that right may not be exercised if the following occurs:
“An owner of copyright in a sound recording may not exercise the exclusive right under paragraph (7) of section 106 to prohibit the broadcast transmission of the sound recording by a terrestrial radio station with regard to—
(A) a terrestrial radio station that pays the applicable royalties under terms described in paragraph (2);
IF AND ONLY IF:
[T]he royalties and terms described in this paragraph shall be identical to those regarding a license for eligible nonsubscription transmission services for audio transmissions under subsection (f)(2).”
For those of you non-lawyers amongst my faithful reading public, this means that a regular, over-the-air radio station must pay to the owners of a sound recordings a royalty equal to that which is paid by Pandora and similar services. If the radio station refuses to pay the money, the sound recording owner gets to pull their sound recordings from airplay.
Sheer genius, I tell you.
Read the post on Copyright.Nova.edu
Amazon, Google, Pandora, Spotify and other tech companies are taking advantage of their influence in the Library of Congress to leverage a loophole in the Copyright Act to their great benefit and to songwriters great harm. Congress can stop them overnight if the Congress will act.
Five to 10 years ago, independent bloggers used to be able to getby on internet advertising, like the broadsheets of yore. But that changed quite quickly, and for two big reasons: Facebook and Google. They now gobble up the vast majority of internet advertising dollars — about 85 percent, as my colleague Jeff Spross writes — and a great many media outlets have been forced to move to direct subscriptions or other business models.
Google and Facebook manage this because they are platform monopolists. They can exert tremendous influence through their control of how people use the internet — and crush productive businesses in the process. Like any monopoly, it is long since time that the government regulated them to serve the public interest….
The upshot here is that both Google’s overwhelming search dominance and their profitable exploitation thereof are almost wholly unmerited in terms of their actual product. Google is a fine tool, but what defines the company is luck. Its profits come from a largely unearned strategic position within a socially-created communication medium. Devouring a small business that provided Google and the internet writ large with quality research simply to keep people fenced onto their own portion of the internet is just one particularly egregious example how this position can be abused.
[Editor Charlie sez: This is why audits are important.]
In 2015, SoundExchange filed suit against Muzak, a wholly-owned subsidiary of Canada’s Mood Media Corporation, for underpayment. The lawsuit arose from Mood Media’s attempt to acquire new music services and pay for the use of sound recordings on these services at grandfathered, below market rates which were intended for a very limited set of companies. On April 25, 2017, the D.C. Circuit ruled in favor of SoundExchange.
Commenting on the ruling, SoundExchange President and CEO Michael Huppe said:
“On behalf of music creators, we are gratified by the D.C. Circuit’s ruling in our favor today. This important decision rejects Muzak’s effort to expand its limited grandfathered eligibility for below-market rates. As the Court properly recognized, Muzak’s position ‘threatens the very purpose of the [Digital Millennium Copyright] Act.’ Looking ahead, the decision will help SoundExchange continue its efforts to ensure that recording artists and rights owners receive proper compensation when their creative work is used.”
Technical background on the case
The passage of the Digital Millennium Copyright Act of 1998 (DMCA) set forth under the law that most subscription services (e.g. those services that deliver music content to cable and satellite television providers) would have their statutory rates set by a fair market value standard (i.e. willing buyer, willing seller). When the DMCA was passed, a small handful of “pre-existing” services, including Muzak and their provision of music to Dish Network, were grandfathered into an outdated standard for setting royalty rates – a standard that frequently results in artists and labels being paid less than a fair rate.
In 2011, Muzak was purchased by Mood Media who, in turn, also purchased DMX, a Texas-based company that also provided music for cable and satellite television networks, including DirecTV. DMX had previously been licensing music under the regular fair market standard. In 2014, Mood Media moved DMX’s cable and satellite music service contracts (including DirecTV) to Muzak, thereby converting a large part of DMX’s former business into a faux “pre-existing” service and dramatically slashing what it paid for the use of the music it was providing.
I want to call your attention to a letter by members of the Content Creators Coalition regarding the Copyright Office. First, a little context.
In case you missed it, Rep. Zoe Lofgren (D-Google) has been on a tear to oppose a bill in the House of Representatives (HR 1695) to both widen the pool of potential candidates to head the Copyright Office (called the “Register of Copyrights” for historical reasons) and elevate the office to a presidential appointment like the head of the Patent & Trademark Office. (By the way, support HR 1695 by signing the CreativeFuture petition if you haven’t already.)
The bipartisan bill, authored by Chairman Bob Goodlatte and Ranking Member John Conyers and passed by the House Judiciary Committee 27-1 by its very nature increases the level of transparency in the appointment of the Register of Copyrights and maintains continuity by including the Librarian of Congress in the group that can recommend candidates to the President.
Currently, the Librarian of Congress is the only one who decides on the Register’s appointment and is the only one who can fire the Register. HR 1695 changes that so that the President hires based on a recommendation from certain offices including the Librarian and fires. Here’s the group that will recommend the Register when HR 1695 becomes law:
(6) PANEL FOR REGISTER OF COPYRIGHTS RECOMMENDATIONS.—There is established a panel to recommend a list of at least 3 individuals to the President for appointment as the Register of Copyrights. The panel shall be composed of the following:
“(A) The Speaker of the House of Representatives.
“(B) The President pro tempore of the Senate.
“(C) The majority and minority leaders of the House of Representatives and the Senate.
“(D) The Librarian of Congress.”;
Why is this change necessary? Mostly because the Copyright Office has languished in the Library of Congress since its inception in the 19th century and is entirely dependent on the Library’s systems and budget for its own operations. It’s no secret that HR 1695 is the first step toward making the Copyright Office its own agency, similar to the Patent and Trademark Office.
It’s also necessary because the current Librarian abruptly separated the last Register in a murky process that smacks of a retaliatory firing or political shenanigans. The Wall Street Journal described it:
“Most Americans think of Google as a search engine doing unalloyed social good, but the company also wants to make money and wield political influence along the way. So you don’t have to be a conspiracy theorist to notice that an abrupt change of leadership at the U.S. Copyright Office is good news for Google, which aims to pay less for profiting from the property of others….
Ms. Hayden’s allies say she simply wants to install her own loyalists, and maybe so. Ms. Pallante favored reorganizing the copyright office as an independent agency, which might have felt threatening to Ms. Hayden. But we can find no similar removal of a copyright register, and the details are unusual.
There is some circumstantial evidence that Google’s lobbying influence was brought to bear in removing Ms. Pallante, though both Google and Ms. Pallante declined to talk to us. Google’s business model is essentially making money off other people’s content, and the company’s strategy has been to infringe on copyrighted material like books and fight it out later in court. The copyright office administers laws that protect owners….
Ms. Hayden is now looking for a copyright office successor, and don’t be surprised if she chooses someone whose experience includes time at Google. This is reason enough for Congress to take a look: If the position is open to political influence, then the register should be politically accountable—and report to elected officials, not the nation’s librarian.
Perhaps these are all coincidences and Ms. Hayden merely botched a personnel dispute. But she now has an opening to install a register friendly to Google, and anyone tempted to write off the Pallante dispute as bureaucratic squabbling should remember: The company’s goal is to defenestrate laws that protect property.
After the Librarian’s botched handling of Pallante’s departure, Goodlatte and Conyers announced in December of last year that the next Register would be appointed differently–and introduced HR 1695 on March 23, 2017 after the new Congress was seated. They even made a video about it last December:
Needless to say, this did not sit too well at the Googleplex. All of the proxies started dancing (you can find most of them on the venerable Google Shill List from the Oracle v. Google lawsuit), and yet the bill passed out of the House Judiciary Committee with one Member complaining–the Representative from Google, Zoe Lofgren.
Yesterday, Ms. Lofgren posted a rather extraordinarily desperate press release in which all cards were played at once. Entitled “Don’t Trump the Library of Congress” (so you know where that’s going), Lofgren said:
“Despite the rushed manner in which this bill has been brought to the floor, there is absolutely no coherent rationale advanced as to how it will improve the administration of the Copyright office. Instead, this bill will only harm the public good, create a dysfunctional relationship between the Library of Congress and the Register of Copyright, and serve to delay Copyright modernization.
“First, Removing Dr. Hayden’s ability to appoint the Register of Copyrights means she will be unable to hold employees accountable and creates uncertainty and ambiguity in the chain of command between the Librarian and Register of Copyrights.
“The previous Register of Copyrights was removed after a Library of Congress Inspector General report found the Copyright Office not only wasted six years and nearly $12 million but hid this information from Congress, falsified information in reports to the Library, and submitted fake budget numbers for annual appropriations requests.
“Dr. Hayden took appropriate steps to remove the Register responsible for this mismanagement. This bill would prevent Dr. Hayden from removing or ensuring accountability in any future Register by making the Register answerable only to the President – a fundamental change in the relationship between Librarian and Register.
“Second, and most fundamental to the operation of the Copyright Office, this legislation will harm and delay much-needed modernization efforts by making the Register a Presidentially appointed position. Currently, there is a backlog of 495 Appointee positions that have not even been nominated. This not only will delay effective administration of the Copyright Office, but also puts the efficiency gains made by the Library at risk. Under current modernization plans, the Library believes it can speed up the modernization plan by almost two years and save significant amounts of money. Those plans depend on an active Register of Copyright who is compliant and accountable to the Librarian. The long delay created by this bill in needing Senate confirmation of a Register will only harm these efforts.
“Finally, the bill is a clear affront to the first female Librarian of Congress. Dr. Carla Hayden is not only one of the most highly qualified Librarians ever to serve, but has also worked aggressively and in good faith to pull the Library and Copyright office into the 21st century. I find it deeply disturbing that for the first time in history, a female and a person of color is the Librarian of Congress, and for the first time in history, Congress would take away her power in order to give it to Donald Trump. While this does not point to motive, it is a distressing fact nevertheless.
“This bill is a vote of ‘no confidence’ in a Librarian who is aggressively pulling the Library and Copyright Office into the 21st century and, by all evidence, justifiably reassigned an ineffective and negligent Register. It will only serve to delay Copyright Office modernization, harm the public, harm content creators, increase tension between the Library and Copyright Office, and harm Copyright Office employees.”
A couple points:
–Remember, Goodlatte and Conyers MADE A YOUTUBE VIDEO months ago telling us all exactly what their intentions were. There was nothing “rushed” about the bill, aside from the fact that a Chairman of a Congressional committee should be expected to get one of his own bills through the committee in double quick time. Which he did, surprise surprise. And the vote was 27-1 to send the bill to the whole of the House–again, is this any great surprise that a Congressional committee chair could get his own legislation passed by his own committee?
–Let’s be clear about something else–the Register of Copyrights has a long history of balancing the public interest along with the interests of creators and music users. Despite the best efforts of the Google chorus, there are a lot of things that the Copyright Office has done that creators don’t like, including some that actually hurt creators. Take the mass “address unknown” NOIs, for example. So let’s not start talking about “agency capture” and bias. That’s just bunk.
–If the reason the Librarian “removed” Pallante was for “mismanagement”, the Librarian certainly kept that fact to herself when she separated Pallante in October 2016–the Inspector General report Ms. Lofgren references that supposedly documents “mismanagement” was dated February 2017 and was leaked in the last couple weeks, apparently by Ms. Lofgren. It never came up in all the back and forth over Pallante’s departure–so how could it have been the cause for her separation?
This revisionist history starts to sound like termination for cause, not termination because of a disagreement over policy which is what all of these same defenders of the Librarian said at the time Pallante was separated. If there was cause, don’t you think that someone would have brought that up last October when Pallante was fired instead of hearing about it for the first time in reaction to HR 1695? Maybe nobody raised it as the reason for Pallante’s separation because it wasn’t the reason.
This is particularly strange given the timeline referenced in Librarian’s comments to the Inspector General’s report (Appendix B)–“Last summer [of 2016, as in before the current Librarian took office on September 14, 2016], based on an independent third party-assessment…ordered by the Copyright Office [i.e., while Pallante was still Register]…at the Copyright Office’s request, the Library terminated [the project involving the supposed “mismanagement”].”
Sounds like some facts are either missing from Ms. Lofgren’s press release or at least require considerably more clarification. Plus, there is no “management response” from the Copyright Office in the IG’s report, so we only get one side of the story.
–Ms. Lofgren’s attack may state too much: “[The Librarian’s] plans depend on an active Register of Copyright who is compliant and accountable to the Librarian.” “Compliant”? Really? Wait–this is 2017 right? Do we still speak of “compliant” employees? Or colleagues? Ms. Lofgren evidently wants the Register to be a rubber stamp for the Librarian.
The rest of Ms. Lofgren’s rambling can best be addressed by this letter to the Congressional Black Caucus from artist members of the Content Creators Coalition. (I had the honor to participate in a symposium on moral rights at the Copyright Office last year with Melvin Gibbs, one of the signers.)
April 25, 2017
Congressional Black Caucus Member:
On behalf of the Content Creators Coalition, we write in support of H.R. 1695, the Register of Copyrights Selection and Accountability Act, which would modernize and provide greater transparency to the process of selecting the Register of the Copyright Office.
This is vital legislation that will strengthen the Copyright Office. We believe this selection process should be granted a similar import, rigor, and transparency as the processes of selecting other organizations, such as the U.S. Patent and Trademark office, that oversee large industries: Presidential nomination and Senate confirmation. In light of the specialized knowledge required to lead this office, we also support the appointment of an advisory group to suggest candidates for consideration.
This legislation would place the Copyright Office on equal footing as other economically and culturally vital agencies. It has wide bipartisan support and was passed out of the typically polarized House Judiciary Committee on a vote of 27-1.
As artists of color, we find it deeply offensive that opponents of this bill have attempted to recast their anti-creators’ rights goals into a smear campaign against its sponsors and supporters, insinuating that the legislation is about the race and gender of the current Librarian of Congress. The Register of Copyrights Selection and Accountability Act is co-authored by the Dean of the House and the Congressional Black Caucus, Judiciary Ranking Member John Conyers, and supported by Congressman John Lewis. Their lifelong and unshakeable commitment to civil rights is a historical fact and should be honored and respected, not opportunistically and baselessly questioned just to score a few empty political points.
We would be the first to speak out against prejudice or bias anywhere – in business, culture, the arts, or politics. But here, we know these charges are false. The bill has nothing to do with the current Librarian at all – in fact, these reform proposals pre-date her appointment.
Nor does this bill have anything to do with the former Register of Copyrights. We are grateful for her tireless efforts and advocacy on behalf of working musicians and find it appalling that some have engaged in efforts to drag her record through the mud to defeat these reforms.
And certainly the bill has nothing to do with the current President – once again, these proposals to modernize the Copyright Office long pre-date his election. It is the height of cynicism for bill opponents to attempt to ride on the powerful coattails of the “RESIST” movement by falsely wrapping this bipartisan pro-artist, pro-creator legislation in the controversies surrounding the President, especially in light of his proposal for massive cuts to funding for the arts. In our view, misleading the President’s critics by leveraging fear into opposition for a non-controversial proposal like this ultimately undermines and disrespects our movement.
The need for this legislation is plain. The current system in which the Librarian of Congress selects the Register is the result of a unique moment in history and outdated concerns: in 1870, the Librarian of Congress asked Congress to give him the authority to appoint the Register in order to deal with a massive influx of new works and the need to quickly grow the Library’s collection.
Nearly 150 years later, the functions of the Copyright Office have changed. It is no mere registry of creative works, but has become the most trusted advisor on Copyright law and its interpretation for the United States Congress. The process of selecting a leader to this office should reflect the importance of copyright to the U.S. economy.
Congress is reviewing and revising copyright laws to ensure they continue to protect all music creators in a time of rapid transition online. It deserves the best advice it can get, and reform of the Register selection process is long overdue.
Thank you for consideration of our views,
V Jeffery Smith
Melvin Gibbs is the President of the Content Creators Coalition. He is an American bassist, composer, and producer who has appeared on close to 200 albums. He has worked with numerous iconic acts across genres, including Cassandra Wilson, DJ Logic, the Power Tools trio with Bill Frisell and Ronald Shannon Jackson, Defunkt, Sonny Sharrock, Arto Lindsay, Dougie Bowne, the Rollins Band, Eye and I, Harriet Tubman, and more. Time Out New York magazine called him “the best bassist in the world.”
Nona Hendryx was one-third of Labelle, the Grammy nominated trio best known for their hit song “Lady Marmalade.” She performed on the Artists Against Apartheid project Sun City, recorded along with Bruce Springsteen, Bono and Lou Reed. She sang backup and toured with the Talking Heads and opened for The Who and The Rolling Stones.
Ernie Isley is a songwriter, guitarist, and member of the Isley Brothers, considered one of the most influential groups of the last half-century. Their music has spanned doo-wop, rock n’ roll, R&B, soul, funk, disco and hip-hop, with hits like “Shout,” “It’s Your Thing,” and “That Lady,” and 50 singles on the R&B charts between 1969 and 1988. The Isley Brothers were inducted into the Rock n’ Roll Hall of Fame in 1992, and received the Grammy Lifetime Achievement Award in 2014.
Ramsay Jones is part of the Wu-Tang Clan family and has appeared on many of their releases. He is a drummer whose playing has been called the heartbeat of the Funkface sound. He has also played with likes of Vernon Reid (Living Color), Falu, Martin Luther, and Apollo Heights.
Darrell McNeill is Director of Operations of the Black Rock Coalition, a nonprofit dedicated to expanding and advancing opportunities for Black musicians. The organization is a united front of musically and politically progressive Black artists and supporters, with collaborators including Meshell Ndegeocello, 24-7 Spyz, the members of Living Colour, Fishbone, and Sean “P Diddy” Combs. He is a renowned bassist.
V Jeffrey Smith is a multi-instrumentalist. He is the writer/producer of Paula Abdul’s #1 album Spellbound. He has also produced artists like Daryl Hall (Hall and Oates) Corey Glover (Living Color) Heather Headley, Tamia, and many more. He is the co-founder and member of the group, The Family Stand.
Don’t forget to sign the petition.