[A]s copyright attorney and music rights activist Chris Castle points out in a recent article in the Huffington Post, the compulsory license is now serving as the foundation for a particularly aggressive form of license-avoidance by Amazon, Google and Pandora. Each of these players in the digital music streaming market can potentially avoid paying songwriter royalties forever and shield themselves from infringement litigation with what Castle describes as a “hack” that only Big Data companies could pull off.
These giant corporations are exploiting a loophole in Section 115(c)(1) of the Copyright Act, which states, “… if the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file a notice of intention in the Copyright Office.” [Emphasis added].
Written long before the era of Big Data, this exception anticipated a good faith effort by a single party seeking to use a song or two at a time and allowing that party to file a notice of intention in order to obtain the government-granted, compulsory license. What this exception did not anticipate, of course, is that corporations with the computing power and financial resources to topple small nations would flood the Copyright Office with millions of notices of intent in order to shield themselves against liability for copyright infringement for vast catalogs of songs. To date, Amazon has served about 19 million notices, Google about 4 million, and Pandora 1 million. Castle notes the irony that Google, of all companies, is exploiting this loophole on the basis that they “cannot find” the relevant information. He writes:
Google is supposed to search. Think about that. This 1976 rule was never intended to apply to a music user with Google’s search monopoly. Yet, if Google “can’t” find the song owner after a search, then Google can serve an “address unknown” notice of intention to the Copyright Office and then exploit the song for free until the songwriter can be “identified” in the Copyright Office records – which may be never.