In another odd twist in the 60,000,000-plus “mass NOI” debacle, a five second search of the SX Works NOI Lookup database reveals that Spotify, Google, Pandora and other services can’t seem to locate Aerosmith songwriters like Steven Tyler and Joe Perry, not to mention their co-writers like long-time Bryan Adams collaborator Jim Vallence. This time there are easy to find documents in the Copyright Office records identifying Aerosmith copyright owners that should have found if anyone bothered to look for them at the services, all of which certified to the Copyright Office that they had done the research. Which raises the question of whether the services have all violated the federal statute that prohibits making false statements when filing documents, certainly any that invoke the awesome power of the Sovereign to force songwriters to give up property rights.
Spotify, Google, Amazon are all making money in Austin while they stiff Austin songwriters. Happy SXSW!
Nor Drake. Nor Bruno Mars. You’d think they weren’t trying very hard
But although that giant payday is built on the back of songwriters’ “sweat and precog”*, Spotify still has trouble finding them to pay them. Even when they’re as world famous as Ed Sheeran…
For more than a year, music services have been exploiting a loophole in US copyright law. Instead of sending a cheque for mechanical royalties, they’ve been filing a statutory “notice of intention” to pay them instead. The NOI is a piece of paper which isn’t redeemable for cash. (The curious can peruse the most recent NOI filings – and Spotify is not alone in filing them! – with the Licensing Division of the US Copyright Office here**).
Millions of NOIs have now been filed. How come?
Amazingly, the law does not oblige the user of the music, Spotify, to do a diligent search on who wrote it. Nor does the law oblige them to maintain and use their own records. So you can be sure that Spotify knows exactly how to find Ed Sheeran to pay him his performanceroyalty. However, in a display of insolence that Kevin The Stroppy Teenager (pictured) would envy, it manages not to find Ed Sheeran to pay him his mechanical royalty. Ed who?
If you haven’t been following the address unknown NOI debacle, you can get up to speed with my recent article on the subject for the American Bar Association Entertainment & Sports Lawyer. If you have been following, you’ll know that the Copyright Office has accepted millions upon millions of address unknown NOIs that implicate repertoire from all over the world.
The punchline–if all a digital music service needs to do in order to claim they have a licene to reproduce and distribute a song is send a notice to the Copyright Office is send a notice saying they can’t find the song copyright owner, how hard do you think they’ll look? Particularly if they know that the Copyright Office won’t check?
And that is where the Inspector General comes in. Formed by the Inspector General Act of 1978, there are 73 Inspectors General in the US government, including the Library of Congress (which is where the Copyright Office is currently housed). There are also inspector generals for the Department of Commerce and the Department of Justice, two other branches where the Copyright Office might end up some day.
If there were ever a situation that cried out for review and investigation by the Inspector General, it is the address unknown NOI filings where Big Tech is running roughshod over songwriters.
For example, we did some spot checking on the NOI filings. Remember, the address unknown NOI is only available if the copyright owner is not identifiable in the public records of the Copyright Office, notwithstanding the CO’s own position by regulation (for service of termination notices) that a search of the Copyright Office records and the ASCAP, BMI, GMR or SESAC databases would also suffice.
For example, here is an address unknown from Google for Sting’s song “Fragile” which supposedly was not identifiable in the public records of the Copyright Office:
and here is the registration for “Fragile” in the public records of the Copyright Office:
Not only has the NOI for “Fragile” been served improperly, it raises the question of just how many other of the address unknown NOIs have been improperly served. Even if we were to assume a 1% error rate (and I for one firmly believe it is much, much higher), that is 550,000 songs that have been improperly served. While the assumption might be that only the obscure works would be included in these filings, the Sting example suggests that is not the case.
But–because no one is checking to confirm proper notice, that means that there is no protection against moral hazard and loophole seeking behavior by some of the biggest corporations in the world, including monopolists like Google and Spotify. Since the Copyright Office refuses to do this work by fiat (see 37 C.F.R. § 201.18(g)), it logically falls to the Inspector General to determine both if the Copyright Office has behaved properly and also if the law is being properly administered to allow 55,000,000 (plus) songs to be exploited without compensation.
September 22nd, 2017
Content Creators Coalition (c3) Warns Congress About Artist And Songwriter Opposition To “Transparency in Music Licensing and Ownership Act”
Washington, D.C. – The Content Creators Coalition (c3) today sent the following letter to the leaders of the House Judiciary Committee warning that consideration of H.R. 3350, the so called “Transparency in Music Licensing and Ownership Act,” would spark a backlash in the artist community and could derail the Committee’s work to create a consensus copyright reform legislation:
The Honorable Bob Goodlatte, Chairman
The Honorable John Conyers, Jr., Ranking Member
House Committee on the Judiciary
2138 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Goodlatte and Ranking Member Conyers:
As an artist and songwriter-run advocacy organization, we write to express our strong opposition to H.R. 3350, the “Transparency in Music Licensing and Ownership Act.” Recognizing the importance of this issue to our constituents, this letter is signed by every member of our Executive Board.
The Content Creators’ Coalition (c3) strongly supports the Committee’s continual efforts to find consensus around broader copyright reform and to ensure that music licensing is more transparent, particularly to third party beneficiaries of recording contracts. There is little dispute among stakeholders that music licensing, in particular the licensing of musical works, is needlessly opaque. Publishers and record labels agree on this point, as do songwriters, performers and musicians, as well as music servicers and businesses who use music and musical works. There is clearly an opportunity for the Committee to find consensus on these issues.
However, H.R. 3350 does not further efforts to reach consensus – instead, it represents a one-sided approach that would fail to simplify music licensing. We are deeply concerned about the bill’s onerous registration system and financial penalty (forfeiture of statutory damages and attorneys’ fees) for songwriters or publishers who fail to register their works in a new database, created and run by the government.
As a matter of principle, an intellectual property right, like any other property right, should not be subject to forfeiture and the law should help creators understand and protect their rights – not create obstacles courses for them to navigate on pain of losing control over their creative work. This bill, by contrast, actually incentivizes the appropriation of creators’ work based on technical or other often innocent shortcomings, removing key deterrents that should discourage music services from doing so.
The record keeping mandates in the bill are voluminous and incredibly vague. Terms like “catalog number” are undefined and could mean a number of things. Other requirements are intricate, time consuming and in many cases, appear impossible to satisfy. How is an artist supposed to register every album on which one of her songs has been recorded, including recordings by other artists they may not even know about? If these requirements are time consuming and uncertain for successful and well-known songwriters and publishers, they will be impossible for independent songwriters.
Most importantly, the bill also thwarts the Committee’s to create a consensus copyright reform legislation. Both the “Fair Play Fair Pay Act,” creating a terrestrial performance right in the United States, and the “CLASSICS Act,” have support from music creators and digital service providers. While we respect the long standing and good faith efforts of Chairman Sensenbrenner to address these issues, H.R. 3350 only enjoys the support of businesses that use music and is so lopsided it would be a toxic “poison pill” in any copyright reform legislation effort.
We urge the Committee to reject H.R. 3350 and to press ahead at full speed with more genuine music licensing reform. Thank you for considering our views.
Melvin Gibbs, President
John McCrea, Vice President
Tommy Manzi, Treasurer
Jeffrey Boxer, Executive Director
cc: The Honorable Daryl Issa
The Honorable Jerrold Nadler
[Editor Charlie sez: Remember that most of these companies are in the MIC Coalition cartel that is colluding to destroy songwriters, and royalty deadbeat Facebook refuses to license at all.]
Until recently, it was easy to define our most widely known corporations. Any third-grader could describe their essence. Exxon sells gas; McDonald’s makes hamburgers; Walmart is a place to buy stuff. This is no longer so. Today’s ascendant monopolies aspire to encompass all of existence. Google derives from googol, a number (1 followed by 100 zeros) that mathematicians use as shorthand for unimaginably large quantities. Larry Page and Sergey Brin founded Google with the mission of organizing all knowledge, but that proved too narrow. They now aim to build driverless cars, manufacture phones and conquer death. Amazon, which once called itself “the everything store,” now produces television shows, owns Whole Foods and powers the cloud. The architect of this firm, Jeff Bezos, even owns this newspaper.
Along with Facebook, Microsoft and Apple, these companies are in a race to become our “personal assistant.” They want to wake us in the morning, have their artificial intelligence software guide us through our days and never quite leave our sides. They aspire to become the repository for precious and private items, our calendars and contacts, our photos and documents. They intend for us to turn unthinkingly to them for information and entertainment while they catalogue our intentions and aversions. Google Glass and the Apple Watch prefigure the day when these companies implant their artificial intelligence in our bodies. Brin has mused, “Perhaps in the future, we can attach a little version of Google that you just plug into your brain.”
More than any previous coterie of corporations, the tech monopolies aspire to mold humanity into their desired image of it.
What appears to be a backdated NOI sent to the author. If this was intentionally backdated this is fraud. Note MRI is simply a third party that sent the notice on behalf of the service. All legal responsibility rests with the service.
Digital music services are trying to end songwriters ability to ever sue broadcasters and digital music services for copyright infringement with this bill. In order to sue for copyright infringement you have to mount a case in a federal court. Not your local district court. This is extremely expensive. I would estimate you need about $250,000 to effectively fight a case. This bill takes away statutory penalties and legal fees, even when the songwriter prevails. This makes it impossible for independent songwriters to exercise their legal rights. NAB Broadcasters and digital services like YouTube and Spotify can safely ignore songwriters, especially independent songwriters with no resources. Songwriters and publishers would have never been able to achieve the recent settlements against Spotify, without statutory penalties and legal fees.
So this may surprise you but I say “fine!” Take away our ability to mount copyright infringement lawsuits? We still have plenty of other (sometimes much more severe) remedies available. Most songwriters don’t really care about the money. The royalties are pretty paltry to begin with. This is really about the principle. This is about justice.
I’m no lawyer but the more I learn about the predicament of songwriters in the US, it feels like something more than just copyright infringement seems to be going on. My layman’s reading of the situation makes me wonder if this isn’t exactly what the authors of the RICO laws had in mind. [RICO stands for “Racketeer Influenced and Corrupt Organizations Act”. Copyright infringement has long been one of the RICO “predicates”.]