[A]s copyright attorney and music rights activist Chris Castle points out in a recent article in the Huffington Post, the compulsory license is now serving as the foundation for a particularly aggressive form of license-avoidance by Amazon, Google and Pandora. Each of these players in the digital music streaming market can potentially avoid paying songwriter royalties forever and shield themselves from infringement litigation with what Castle describes as a “hack” that only Big Data companies could pull off.
These giant corporations are exploiting a loophole in Section 115(c)(1) of the Copyright Act, which states, “… if the registration or other public records of the Copyright Office do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file a notice of intention in the Copyright Office.” [Emphasis added].
Written long before the era of Big Data, this exception anticipated a good faith effort by a single party seeking to use a song or two at a time and allowing that party to file a notice of intention in order to obtain the government-granted, compulsory license. What this exception did not anticipate, of course, is that corporations with the computing power and financial resources to topple small nations would flood the Copyright Office with millions of notices of intent in order to shield themselves against liability for copyright infringement for vast catalogs of songs. To date, Amazon has served about 19 million notices, Google about 4 million, and Pandora 1 million. Castle notes the irony that Google, of all companies, is exploiting this loophole on the basis that they “cannot find” the relevant information. He writes:
Google is supposed to search. Think about that. This 1976 rule was never intended to apply to a music user with Google’s search monopoly. Yet, if Google “can’t” find the song owner after a search, then Google can serve an “address unknown” notice of intention to the Copyright Office and then exploit the song for free until the songwriter can be “identified” in the Copyright Office records – which may be never.
It probably drives Amazon crazy that they haven’t found a way to commoditize music festivals like they have all other aspects of retail, using brick and mortar retailers as Amazon showrooms. So it should come as no surprise that Amazon is going to try to fix a problem that doesn’t exist for anyone but them–the fan […]
[Maybe the DOJ should do the same with Congress–starting with ASCAP & BMI.]
Federal Communications Commission Chairman Ajit Pai is on a process-reform roll. The chairman declared that henceforth the commissioner’s will vote on consent decrees, which are now at the discretion of the chief of the Enforcement Bureau and the chairman’s office. Consent decrees are generally entered into by parties that have been fined by the commission.
“One of the ways in which the FCC’s Enforcement Bureau resolves an investigation is by entering into a consent decree, in which the party being investigated agrees to comply with certain terms in exchange for the government closing its inquiry,” Pai said in an emailed statement.“But over the past few years, in cases in which the full commission has previously voted to propose and/or impose a forfeiture, such consent decrees have generally not been presented to the commissioners for a vote. Instead, they have simply been signed by the chief of the Enforcement Bureau at the direction of the chairman’s office. Indeed, many times, commissioners were barely given any notice of such consent decrees before they were publicly released by the Bureau.
“That abuse of process ends now. If commissioners vote to propose and/or impose a forfeiture, the Enforcement Bureau should not settle that matter without their approval.
MUSICFIRST Executive Director CHRIS ISRAEL commented yesterday regarding current copyright laws on pre-1972 music.
He said, “Consumers’ preferences for how they access music have changed dramatically in recent years. Sadly, our copyright system hasn’t kept pace. Our antiquated laws treat artists’ works differently depending on the platform we’re using to listen to their recordings. While the inadequacies of our system are evident every day, TODAY (2/15) marks the 44th anniversary of one of our system’s most egregious flaws.
Thanks to a quirk in U.S. law, songs recorded before this date in 1972 do not have federal copyright protection, and that is a huge problem. Up to 15% of all the music on some digital radio services was recorded before FEBRUARY 15, 1972. Streaming, satellite and FM radio have entire channels dedicated to this iconic music, yet this anomaly in U.S. law allows them to use pre-72 music without requiring them to compensate the artists whose recordings they play on the air.
Many older artists have been forced to pursue fair compensation in a variety of state courts. This is extremely inefficient, unfair and unnecessary. Simple legislation will address this clear problem.
[The NAB royalty deadbeats had no comment.]
Reps Marino, Chu and Comstock just released text to house bill that would make the Copyright Office (mostly) independent from the Library of Congress. This is a good thing for authors, photographers, filmmakers and songwriters. And it’s all thanks to aggressive overreach by radical copyleft academics and librarians. Let me explain. Over the last decade once stodgy […]