So it’s not just me. According to the latest Digital Music News investigation, senior executives at the MLC are dodging simple questions about the investment portfolio of over $500 million that the MLC has amassed from other people’s money in the black box they are currently holding (possibly at City National Bank in Nashville).
Dylan Smith’s latest reporting states:
The music industry can count the MLC as another major contributor to the multi-billion-dollar ‘black box’ of unpaid royalties. Earlier this week, an anonymous source reached out to Digital Music News with word of a massive tranche of owed-but-unpaid mechanical royalty compensation, as well as adjacent concerns about the operations of the Mechanical Licensing Collective.
You don’t really need an anonymous source to know some of these things–it’s right in your face in their public statements, tax returns and annual report, plus the Copyright Office’s rather MIA response to questions from then-Chairman Leahy during the Copyright Office oversight hearing. But at least the Copyright Office tried to answer the questions.
When asked about the MLC’s current black box royalty figure, the organization’s chief marketing officer Ellen Truley (whose 2021 base salary cracked a staggering $341,000, also according to IRS tax disclosures) declined to share any figures but offered “to get back to you with information on Monday.”
Multiple follow-up messages exchanged between DMN and Truley prompted the latter to offer “to chat with you to get you the most accurate info,” but failed to produce a direct answer to the seemingly straightforward question.
And while many assumed that the MLC – the sizable budget of which previously elicited criticism– had chipped away at the figure during the remainder of 2021, the mentioned tax filings show that the pile of black box royalties was even larger when the year concluded.
The DMN post also notes that there’s internal shenanigans regarding the oldest desktop audit technique in the book: compare your sound recording sales to your publishing royalties and see if the units match up. This is so unremarkable that it’s remarkable that MLC doesn’t run these tests as a matter of course, but apparently not:
DMN was provided with a breakdown of an artist and songwriter’s streaming royalty statements from DistroKid and the MLC. With each of the music professional’s works organized by title and ISRC, the resource appears to show significant discrepancies between the number of recording streams identified by DistroKid and the number of composition streams identified by the MLC, which should in theory match.
One work garnered north of 1.15 million Spotify plays in the DistroKid report but failed to register any MLC streams at all during the same period, for instance, potentially signaling a major underpayment. Interestingly, there are comparatively few differences in stream counts on platforms such as Apple Music and Amazon Music, the document shows, and the size of each difference seems to be far smaller.
Oh well. Maybe Chairman Jim Jordan or Rep. Darrell Issa at House Judiciary will take an interest in how the MLC can sit on $500 million for two years while establishing an “investment policy” that allowed them to make over $2 million in trading profit when their operating costs are covered by the services that pay for the privilege of using the government’s compulsory license and they evidently don’t share those trading profits with the songwriters.
It’s not fair for the Copyright Office to have to defend the MLC that routinely ignores Copyright Office guidance. The easiest way for Congress to find out what’s going on at its MLC quango run by inferior officers of the United States per President Trump’s signing statement for the Music Modernization Act is to ask the MLC to come to Congress and explain themselves directly to lawmakers. Maybe they’ll return that phone call. Dunno, could be good.
[This 2018 MusicAlly post by the great Stuart Dredge summarizes my “Ethical Pool” strategy as an intermediate step toward solving the unsustainable streaming artist royalty issue. The Ethical Pool can be implemented immediately–SoundCloud’s “Fan Powered Royalty” version demonstrates the immediate application potential while further engaging fans. It also blows past the complexity objection from streaming services which is the threshold rejection when user-centric (or what I call “artist centric”) is presented because the Ethical Pool is essentially bolted on to the existing royalty system so that services run both simultaneously. That’s what SoundCloud has done with FPR and that’s why it is an intermediate step. You would have to make some decisions about what business rules would allow the two systems to operate side by side, but because all participants in the Ethical Pool would be opt-in you would not have to amend any existing contracts, pass any laws, or change any existing royalty accounting systems. The “Big Pool” stays as is, the Ethical Pool is a new and separate license. The market will tell us if it flies or crashes and burns. It must also be said that there is a tremendous amount of fraud in streaming services–naturally, it’s on the Internet after all–and any royalty system like the Ethical Pool that encourages the existence of actual fans is likely to create natural barriers to fraud.
Industry blog Music Tech Solutions has been thinking about the debate around ‘user-centric’ streaming royalties. That’s where the royalties from every paying streamer’s monthly subscription are divided only between the artists they listen to, rather than going into a bigger pool divided by overall listening share on the entire service.
MTS’ new idea: let fans choose if they want their subscriptions to be divided up in this new way. “When the fan signs up for a service, let the fan check a box that says ‘Ethical Pool.’ That would inform the service that the fan wants their subscription fee to go solely to the artists they listen to,” it explains, suggesting that this would ensure streaming services don’t fall foul of contracts that require them to treat royalties in the traditional ‘Big Pool’ way. “Artists also would be able to opt into this method by checking a corresponding box indicating that they only want their recordings made available to fans electing the Ethical Pool. The artist gets to make that decision. Of course, the artist would then have to give up any claim to a share of the ‘Big Pool.’ Existing subscribers could be informed in track metadata that an artist they wanted to listen to had elected the Ethical Pool. A fan who is already a subscriber could have to switch to the Ethical Pool method in order to listen to the track.”
[Well, here it is. Two years ago we warned everyone who would listen that TikTok were apparatchiks for the Chinese Communist Party–by law in China because of the CCP’s civil-military fusion–“If Google is the Joe Camel of data, then TikTok is the Joe Camel of intelligence.” We did panels warning about TikTok including the CEO’s struggle session and the CCP constitution–facts, you know. Tim Ingham warned that on top of everything else, the deals suck. And then there’s Twinkletoes, who is in our view a walking, talking Foreign Agent Registration Act violation.
[According to Emily Baker White writing in Forbes:]
China-based team at TikTok’s parent company, ByteDance, planned to use the TikTok app to monitor the personal location of some specific American citizens, according to materials reviewed by Forbes.
The team behind the monitoring project — ByteDance’s Internal Audit and Risk Control department — is led by Beijing-based executive Song Ye, who reports to ByteDance cofounder and CEO Rubo Liang.
The team primarily conducts investigations into potential misconduct by current and former ByteDance employees. But in at least two cases, the Internal Audit team also planned to collect TikTok data about the location of a U.S. citizen who had never had an employment relationship with the company, the materials show. It is unclear from the materials whether data about these Americans was actually collected; however, the plan was for a Beijing-based ByteDance team to obtain location data from U.S. users’ devices.
Readers will recall that the MLC is sitting on a pile of other peoples money (i.e., the Mechanical Licensing Collective, the DSPs one-of-a-kind joint venture quango mandated by the good folks from Washington who are here to help). We estimate that the MLC has got at least $500 million socked away at City National Bank in Nashville collecting dust–or interest. More on that later. This would include current black box plus $424 million or so in historical black box it voluntarily paid to the MLC by the DSPs–an inexplicably large sum given all the DSP audits over the years.
Readers will also recall that the U.S. Copyright Office is responsible for the operations of the MLC, or as they say in Washington where all the children are above average and no one is responsible for anything, “has oversight” which usually means “gets to blame somebody else” when the fan takes over. And of course the Congress has oversight of the Copyright Office. Every so often, the head of the Copyright Office gets the rare joy of attending an oversight hearing at the Congress which happened recently and resulted in certain follow up “questions for the record” that get answered in writing.
The MLC and its employees should get one thing straight–they are about to be blamed for some grubby practices when Congress wants you to show them the money. And you will be thrown under the bus, count on it. Just think–you could have stolen the money the old fashioned way. In the dark. But no, you wanted the government to force songwriters to deal with you and you could not stop congratulating yourselves about how smart you were. Well, you wanted it, and now you’ve gotten it.
Senator Patrick Leahy, Chair of the Senate Judiciary Committee, submitted some rather pointed questions about the MLC black box which drew a rather pointed response:
Question: The Mechanical Licensing Collective (MLC), the organization created under the Music Modernization Act to collect mechanical royalties for songwriters and publishers, also has an obligation to identify the owners of musical works that have accrued royalties when the owners are not known. The major publishers who largely control the MLC keep the royalties from unidentified works if the owners cannot be found. Over the past year, the MLC has identified only a tiny fraction of the rightful owners. [You were warned.] The major publishers stand to gain hundreds of millions of dollars from that failure to find rightful owners. We did not intend to create a disincentive for the MLC and major publishers to find the rightful owners of music works.
What can the Copyright Office do to help ensure that the MLC is working to make sure that rightful owners of music works are identified and paid?
Response: The Mechanical Licensing Collective (“MLC”) should make every reasonable effort to ensure that royalties are paid to the rightful owners of musical works. According to the MLC’s first annual report, it has distributed over $420 million under the new blanket license for uses reported in 2021, with a steadily improving match rate reported to be approximately 88% of all royalties. With respect to the historical, pre-2021, unmatched royalties, which were reported to be about $426 million, the annual report says that the MLC recently started distributing those that it has been able to match. It also says that the MLC has begun making associated usage data for historical unmatched royalties available to copyright owners, which will facilitate further claiming and matching. Notably, the MLC plans to wait to process historical unmatched royalties from the Phonorecords III rate period until the Copyright Royalty Judges finalize those rates in the ongoing remand proceeding and digital music providers provide adjusted reports of usage and royalty payments. It is the Office’s understanding that the bulk of historical unmatched royalties come from that period. [More on this PR III issue below]
The Copyright Office has been active on the issue of matching musical works to accurately pay copyright owners. Last year, we issued a report recommending best practices for the MLC to consider to reduce the incidence of unclaimed royalties. The report’s comprehensive recommendations ranged from high-level concepts to detailed suggestions across seven areas: (1) education and outreach; (2) usability of the MLC’s systems, including the public musical works database and claiming portal; (3) data quality; (4) matching practices; (5) holding and distributing unclaimed accrued royalties; (6) measuring success; and (7) transparency. One of the report’s most significant recommendations was that the MLC should hold unclaimed royalties for longer than the statutory minimum period, to maximize its matching efforts and the ability of copyright owners to make claims before any market-share-based distributions are made. We recommended that the MLC should wait to make such distributions of unclaimed royalties based on the evaluation of various objective criteria, like match rates and engagement metrics.
Additionally, the Office and the MLC are each involved in substantial education and outreach efforts to help ensure that publishers and songwriters, especially self-published songwriters, are aware of the Music Modernization Act (“MMA”), understand their rights under the new system, know that they can register their works with the MLC and claim royalties, and know that royalties for unclaimed works will be equitably distributed to known copyright owners.
[Here comes the bus.]. The Office is continuing to engage with the MLC and other industry stakeholders, including digital services and songwriters, to monitor the MLC’s progress as it continues to ramp up operations. While the MLC has not indicated that it plans to make a distribution of unclaimed royalties anytime soon, the Office possesses broad regulatory authority to act if necessary to prevent a premature distribution. The statute requires the MLC to give ninety days’ notice before any distribution. We have previously cautioned that making a premature distribution of unclaimed royalties could jeopardize the continuation of the MLC’s designation. 84 Fed. Reg. 32,274, 32,283 (July 8, 2019) (“[I]f the designated entity were to make unreasonable distributions of unclaimed royalties, that could be grounds for concern and may call into question whether the entity has the ‘administrative and technological capabilities to perform the required functions of the [MLC].’”) (quoting 17 U.S.C. § 115(d)(3)(A)(iii)).
One issue that is not discussed in the QFR or anywhere else for that matter is what is happening to the hundreds of millions that the MLC is sitting on. Remember that the MLC is required to pay a government interest rate on black box, and that interest rate has been steadily increasing this year thanks to the Federal Reserve. That interest payment is presumably covered under the MLC’s administrative assessment and government fees charged to music users for the privilege of using the compulsory blanket license.
But wait–there’s more. According to the MLC’s annual report (at p. 4), the MLC invests the black box according to its internal “Investment Policy” established by its board of directors.
Investment Policy: This policy covers the investment of royalty and assessment funds, respectively, and sets forth The MLC’s goals and objectives in establishing policies to implement The MLC’s investment strategy. The anti-comingling policy required by 17 U.S.C. § 115(d)(3)(D)(ix)(I)(cc) is contained in The MLC’s Investment Policy. The Investment Policy was approved by the Board in January 2021.
This raises some interesting points. First and foremost, it is unclear where any trading profits reside. Realize that every CMO is confronted with the decision about what to do with the royalty float and black box, but not every CMO decides to invest these funds in the market. If they do invest the funds, it is generally the case that any trading profits, dividends or interest goes to offset the CMO’s administrative costs that otherwise would be deducted from collected royalties.
However, the MLC’s administrative costs are paid by the users of the blanket license (making the United States, I believe, the only country in history or the world that charges for the use of a statutory license). Therefore, the return on the MLC’s investment of the songwriters’ money would not be used for the same purpose as all the world’s CMOs that follow a similar practice.
Whether the ROI is returned to songwriters or to the users or retained by the MLC is unclear to me from the MLC’s annual report. It is also unclear as to the authority that the MLC’s board (or the Copyright Office for that matter) would have to put the songwriters’ money at risk in the market, what record keeping is made or required of the investments and ROI, or really much of anything at all, aside from the quoted statement above.
It is also unclear how, if at all, the MLC distinguishes between ROI on royalty or the administrative assessment. It would make sense for trading profits on received but unspent administrative assessment funds to offset current or future assessments, but it’s not clear if that is done.
Assuming there are any. Profits, that is.
I was hoping that this topic would be addressed in the oversight hearing, but maybe next time.