ON MARCH 2, SPOTIFY ANNOUNCED the most Spotify thing imaginable: The Smirnoff Equalizer, a brand partnership in the form of a woke algorithmic discovery tool. Together, Spotify and Smirnoff claimed that the app would analyze users’ listening habits and “equalize” the gender ratio of their listening experience. Applying a binary understanding of gender, the Equalizer would quantify the user’s past six months of streaming, display the percentage of male-versus-female artists in their history, and provide them with a personalized, more “balanced” playlist. The Smirnoff Equalizer will be live through this summer, available for Spotify users of a legal drinking age in the United States and five additional countries, which should serve as reminder enough: this tool is meant to sell vodka.
[This is a must read post on the growing revolt against Spotify as the first known example of Orwell’s versificator. As Chris Rizik notes, Spotify and its ilk are hardly saviors of music, more like destroyers of music and any popular culture that is more than a foot wide and an inch deep and a few years old. There’s a reason why 10% of the music accounts for 90% of the revenue–and I think it’s more like 5% acccounts for 95%.]
Two events happened recently that caught my attention:
- Lil Pump, a 17 year old Miami rapper, signed an $8 million recording deal with Warner Bros.
- Around the same time, one of the leading modern soul singers in the US celebrated on social media the one millionth stream of her latest song on Spotify. Her financial haul on it? Likely around $3,000.
Though these two stories appeared unrelated, they are instructive of the strange new world of music streaming payments, and the inherent bias against soul, jazz, classical and other genres of music aimed at adult listeners….
And while there has been a lot of press about how streaming initially reduced the overall payments to record companies and artists (which has since turned around), what hasn’t been addressed as much is how streaming has changed which artists get paid. And, without a doubt, streaming has stacked the deck toward hip-hop, pop, and other genres whose listeners are teenagers and twenty-somethings.
“I do believe that the intellectual property that you create is just that. It’s property and you ought to be protected in the property that you create and that we all enjoy.”
Senator John Cornyn, U.S. Senate Committee on the Judiciary, May 15, 2018.
On May 23, without the benefit of any studies, hearings, or stakeholder input, Senator Wyden introduced the “Accessibility for Curators, Creators, Educators, Scholars, and Society to Recordings Act” (“ACCESS to Recordings Act”).1 The bill would preempt the state and common law protections that sound recordings fixed before February 15, 1972 have always enjoyed and make them subject to federal copyright protection. In doing so, it suffers fatal Constitutional flaws.
The Fifth Amendment of the Constitution establishes that the federal government cannot take private property “for public use without just compensation,” a principle stretching back at least 800 years to the Magna Carta.2The Takings Clause, as this provision is referred to, applies just as much to intellectual property, like copyright, as it does to other forms of private property….
Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.
The music world continues to be exceedingly vulnerable, and there are looming questions that desperately need to be addressed. Most important: How can artists distribute and sell their work in a digital economy beholden to ruthlessly commercial and centralized interests?
Enter Spotify, a platform that is definitely not the answer.
Read the post on The Baffler
This one from the Supreme Court of Florida, finding that Florida common law does does not recognize an exclusive right of public performers for the holders of common-law copyrights in sound recordings made before February 15, 1972. The 11th Circuit certified a series of questions to the Florida Supreme Court…Instead of addressing these questions, the Court chose to address a reformulated question of its own, “Does Florida common law recognize the exclusive right of public performance in pre-1972 sound recordings?”
The obvious problem with this is that it fails to address whether pre-72 sound recordings are protected under Florida law more generally. The Court notes (pp. 19-20) that Florida criminal law provides penalties against commercial bootleggers of sound recordings, but those criminal provisions do not impact a range of activity including noncommercial infringement.
This could be excused as judicial minimalism if it wasn’t central to the case – Flo & Eddie sued in Florida specifically because SiriusXM has servers there, and alleged that copying was ongoing on those servers in violation of their exclusive right of reproduction.
Read the post on Mostly IP History