DOROTHY

If you were really great and powerful you’d keep your promises!

from The Wizard of Oz, written by Noel Langley & Florence Ryerson and Edgar Allan Woolf, adapted from the book by L. Frank Baum

In an interesting twist, Complete Music Update has actually criticized songwriters when Spotify wasn’t sued.  (Or at least wasn’t sued yet.)  Yes, it’s true; sometimes man really does bite dog.  In that post about the recent case of SA Music LLC and Harold Arlen Trust LLC v. Apple, Inc., Amazon.com, Inc. and others, CMU may be demonstrating exactly what their motivation was behind attacking music publishers in their most reason consulting pitch.

Harold Arlen was a very successful songwriter, probably most famous for Somewhere Over the Rainbow from The Wizard of Oz.  (That song is not included in the lawsuit, probably because the studio owns the copyright.)

The Arlen case turns on a fundamental point:  The government won’t save you with a compulsory license for the reproduction of a sound recording if you didn’t have the rights in sound recording in the first place.  Simple, simple stuff.

But as it turns out, some of the services including CMU’s beloved Spotify, did get a fake license for at least some of Mr. Arlen’s songs at issue by sending an address unknown notification to the Copyright Office claiming that the Copyright Office records did not identify the owner of the song copyright.  (A complex process spelled out here.)

And the Arlen plaintiffs provide a handy guide to finding the song copyright owner in the Copyright Office records in an exhibit to their complaint that lists the copyright registration numbers for their works.

You know–the kind of information you would find if you actually looked up the works concerned as is required to get the address unknown fake compulsory license and which each service represented that they did when the filed a notice.  (Apple never filed these notices.)

Take Stormy Weather, for example, one of the classic Arlen songs.   A quick search of the handy SX Works NOI Lookup database reveals that both Google and Spotify filed “address unknown” NOIs for the song.

And yet–here it is in the Arlen complaint, along with that pesky copyright registration number:

The presence of the copyright registration number shows that Mr. Arlen was in the Copyright Office public records and the format of the number shows that the registration was filed before 1978 for a published work.

And let’s make a side bet that you can rinse and repeat for each song in the complaint–all of them will be subject to an address unknown filing and all of them will have been registered.  Which means that whoever was filing the address unknown NOIs on the Copyright Office didn’t bother to look–and it also means that all of those improperly filed NOIs are invalid, and that’s before you even get to the question of whether the sound recordings were properly licensed.  (And because invalid, neither group is subject to the new MMA safe harbor.)

How could that be you say?  These are the cognoscenti of the modern world at Google, Amazon, Spotify, et al.  How could they have made this boneheaded mistake?

And although it’s not part of the lawsuit currently being heard before Judge John F. Walter in the California Central District, Mr. Arlen’s classic Somewhere Over the Rainbow from The Wizard of Oz also was too difficult for some services to find—they sent in address unknown NOIs on that song, too.

There’s actually quite a simple answer that may explain why the services made these mistakes.  The Copyright Office online lookup only covers registrations after January 1, 1978.  Registrations before 1978–you know, the core of American popular music and the bulk if not all of Mr. Arlen’s catalog–pretty much require a manual lookup.  Which means that the Reading Room of the Copyright Office would have been a very, very busy place for a while there with gnomes from the services or their licensing companies looking up pre-78 copyright registrations to identify the copyright owner.  Or they could just have relied on the licensing services that Amazon and Spotify used to do their clearance work, both of whom bray about the breadth of their respective databases.

Or you could just lie when you represent on your NOI filing that you have searched the Copyright Office records but were unable to locate the copyright owner.  These filers attest that they have looked for the copyright owner in the Copyright Office public records as required in the filing instructions:

In the case where the Notice will be filed with the Copyright Office pursuant to paragraph (f)(3) of this section, the Notice shall include an affirmative statement that with respect to the nondramatic musical work named in the Notice of Intention, the registration records or other public records of the Copyright Office have been searched and found not to identify the name and address of the copyright owner of such work.

This language is fixed in the government spreadsheet template for each NOI served on the Copyright Office.   Each service filing the NOI has marked “YES” in that column for each song in the notice.

Why is this a problem?  Just ask Martha Stewart what happens when you make a false statement to the government.

It has long been my contention that the services violated the law on a massive scale but no one seems too interested in finding out.  Mr. Arlen’s lawsuit or one like it may provide just the vehicle to find out where the fault lies for these apparently false filings.

And guess what–the new Music Modernization Act safe harbor won’t protect the services on this one, CMU’s whinging notwithstanding.  This is not a failing of the licensing system, this is the desire of the services to Do The Wrong Thing correctly.  It is a failure that highlights why whichever candidate is designated as the MLC should have new blood and not keep recycling the old.

CMU tells us:

Nearly all the streaming services have been sued at some point in recent years in the US for failing to pay all of the mechanical royalties that are due on the songs they are streaming. In most cases, this failure to pay was mainly the result of the woefully inadequate licensing system operated by the American music publishing sector.

Actually the failure to pay was mainly the result of failing…to…pay.  Ahem.

Technically a compulsory licence covers the mechanical rights in songs Stateside, so that the streaming services don’t need bespoke licences from each writer or publisher. [Not just “technically”…actually.]  However, they do need to send notices and payments to each rights owners of each song streamed for the compulsory licence to apply.

Because the streaming services don’t generally know what specific songs are contained in the recordings labels pump into their platforms – let alone who owns the rights in those songs – in some cases notices and payments were not sent.

“Some cases”?  Does 25% of the repertoire count as “some”?  Do tens of millions of “address unknown” NOIs count as “some”?

What the Arlen case helps us understand is that the services or their clearance companies sent address unknown NOIs on songs where the address clearly was known.  It also provides at least circumstantial evidence that the services may never have tried to identify the song copyright owner in the public records of the Copyright Office, even in cases where they knew the title of the song and the name of the songwriter and where the songs were classics that were very well known to music fans.

It also demonstrates that nobody was minding the store on the either the song side or the sound recording side of these services in their mad dash to get big fast and line their pockets while deflecting attention away from their own culpability.  And when something misfires as much as song licensing has–where services are not even using the available tools correctly–it definitely gives the lie to the licensing system being “woefully inadequate” because you can’t find what you don’t look for.

I think that the truth that Howard Arlen’s lawsuit may uncover is that we should disregard the iconic image that the media has created of Big Tech.  Once it became apparent that independent songwriters like David Lowery and Melissa Ferrick were prepared to sue to enforce their rights, things got out of hand and it was pretty clear from the way this was handled that these guys were just not that bright.

But pay no attention to the man behind the curtain because on the Internet it’s always someone else’s fault.