[Law 360 covered the Music Modernization Act, featuring a quote from Robert Allen, a leading artist rights litigator critical of the new safe harbor that a growing chorus challenges as unconstitutional because it retroactively takes away rights songwriters are entitled to under the statutory damages rules of the Copyright Act:]
Notably, for digital services that play by the new rules, the bill would give them strong legal protections against past infringements. In any lawsuit filed after Jan. 1, 2018, against a complying service, plaintiffs can only recover the royalties owed under the new system, not damages for infringement.
It was that provision, according to media reports, that prompted the music publisher representing Tom Petty and others to sue Spotify over unpaid mechanical royalties on Dec. 29, just days before the proposed deadline.
Such indemnity was almost certainly an inducement designed to get the Digital Media Association— the group that represents Spotify, Pandora and other streaming services — to support the legislation, but Robert E. Allen, a principal at McKool Smith PC and a veteran music publishing attorney, said the provision went much too far in forgiving past behavior.
“I think that’s completely unfair to songwriters,” Allen said. “It gives these services a pass for their past misconduct.”