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 license 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.