“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.
[Editor Charlie sez: Our old nemesis Lawrence Lessig is pressed back into service to lead Google’s charge against justice for pre-72 recording artists. True to form, Lessig trots out his own opinions about copyright masquerading as law–opinions that have been shot down twice by the US Supreme Court as Neil Turkewitz teaches us. Ever the victim, Lessig gets cranky when he’s called on it.]
My issue with Larry Lessig is that he is fighting to preserve injustice while claiming to represent the public interest, and that he has such little regard for the truth. Like most zealots, he believes that the ends justify the means. And since the ends he seeks are, from his perspective, so important, they justify extreme means. I find fault with both his desired ends, and with the modalities he is prepared to adopt in pursuit thereof. His defense of the worst aspects of the exploitation economy are both incomprehensible and inexcusable.
Let’s explore. On May 18, Larry Lessig published an article in Wired entitled: CONGRESS’ LATEST MOVE TO EXTEND COPYRIGHT PROTECTION IS MISGUIDED. In it, Lessig sets out the World According to Lessig, (hereafter referred to as WAL), and boy does it bear little similarity to the world the rest of sentient life occupies. Lessig was responding to a bill passed by the House of Representatives and currently in the Senate entitled CLASSICS that would address a gap in federal law that allows certain music services to avoid paying performers and labels for music created prior to February 15, 1972 (the date when federal copyright law first protected sound recordings). Now I say he was “responding,” to the legislation, but that is a bit generous, since his criticisms suggest that he in fact did not read the legislation, or more importantly, take the time to understand the surrounding legal environment in which the legislation is situated. And of course, it goes without saying that Lessig was unmoved by the actual injustice of the present situation.
[Editor Charlie sez: As David Lowery has posted, it’s looking like the Senate version of the “Music Modernization Act” may not include the CLASSICS Act which would require royalty deadbeats at the Digital Media Association, SiriusXM and Pandora to pay their fair share of performance royalties for our legacy artists who recorded before 1972. This loophole has been exploited and defended by the head of the Digital Media Association while he was formerly at SiriusXM and Pandora. David caught him promoting a position from Google shills Public Knowledge and now Terry Hart has called out Professor Mark Lemley for trying to pull the bait and switch from the House bill to the Senate version of MMA (which means “Music Modernization Act” not “Make More Algorithms”). Professor Lemley has plenty of entries in the “Google Academics” database, a handy tool for tracking Google’s influence.]
On April 25, the U.S. House of Representatives passed the Music Modernization Act, H.R. 5447, by a vote of 415-0. The comprehensive bill “updates music copyright laws by creating a new compulsory blanket licensing system for mechanical works, updating the rate standards applicable to music licensing, modifying the rate setting process in the Southern District of New York, providing copyright royalties to pre-1972 artists, and ensuring that producers, mixers, and sound engineers are able to receive compensation for their creativity.” 1 The unanimous vote is a reflection of the extraordinary consensus among all parts of the music industry, including digital service providers.
Following passage, Stanford professor and Durie Tangri partner Mark Lemley tweeted [Durie Tangri lawyers gleefully represented Google in its full frontal assault on authors rights in the garbage law Google Books case and also defended another case where tech ripped off dead guys for Goldiblox with the Beastie Boys]:2
House unanimously passes copyright reform act that unfortunately includes term extension for sound recording performance rights for as long as 144 years. https://t.co/fHlbqvJBOl
— Mark Lemley (@marklemley) April 25, 2018
He was referring to Title II of the bill, an amended version of the CLASSICS Act (H.R. 3301), which would mandate royalty payments for sound recordings fixed before February 15, 1972, for certain digital performances. His point was echoed by Krista Cox, director of public policy initiatives at the Association of Research Libraries, who wrote in Above the Law, “The biggest issue is that CLASSICS extends copyright term for sound recordings beyond what a sound recording today would be granted.”
These statements are strikingly incorrect.
Read the post on Copyhype
Here’s a screen cap of Lemley’s entries in Google Academics:
And here’s Google acknowleging financial support for Public Knowledge in the famous Google Shill List
Over the last four years, SoundExchange members have sent many thousands of letters to Congress asking for reform of our music licensing laws. When Congress held hearings at the start of its lengthy copyright review in 2014, it was my honor to represent music creators as a witness before the House Judiciary Committee asking that they modernize our laws by requiring fair pay for all music creators whenever their music is played.
Today, I’m happy to report that our work together is paying off.
Last week, the U.S. House of Representatives passed the comprehensive
Music Modernization Act (H.R. 5447) by a unanimous vote, 415-0. This is
an historic victory that happened because of our collective efforts. It happened because of the industry- wide unity and legislative consensus we worked so hard to achieve. And it happened because of our efforts to help lawmakers understand how important music reform is to you — the music creators who are the lifeblood of our industry.
In 2017 alone, our artist partners and advocates utilized our letter writing campaign to send thousands of constituent letters. United States Senators from all 50 states and Members of Congress from 419 out of 435 districts across the country received letters asking them to support music creators by supporting music licensing reform legislation.
Because of your hard work, we’re on the cusp of success. The fight isn’t over though, and our focus now shifts to the U.S. Senate.
While several pieces of music legislation have been introduced in the Senate, there is not a single comprehensive package yet. We are encouraging our Senate allies to bring these many issues together into a single, comprehensive Music Modernization Act, like the bill passed in the House, to include:
**The CLASSICS Act (S. 2393) to ensure equal treatment for legacy artists who recorded music before 1972;
**The AMP Act (S. 2625), which builds on SoundExchange’s existing process for honoring letters of directions for producers and sound engineers; and
**The mechanical licensing reform bill (also called the Music Modernization Act). Lawmakers need to hear your voice to make this happen.
I encourage you to read this special advocacy edition of SoundByte to learn more and to find out how you can get engaged.
Thanks to our SoundExchange family for everything you have done to support our advocacy efforts on Capitol Hill. Let’s continue our work together to make history.
Yours in Music,
President & CEO
SoundExchange’s CEO talks licensing reform and the CLASSICS Act.
A promising occurrence is unfolding in the U.S. Congress: bipartisan agreement on meaningful legislation. Republicans and Democrats on Capitol Hill are working on a broad and impactful measure to modernize and improve many of the rules that govern how music is used in the digital era. This bipartisan consensus will benefit music creators, digital services and fans.
This situation has progressed in large measure because the music industry and digital service providers — often divided — similarly worked together to craft a unified package of reforms. More than 20 organizations representing artists, songwriters, composers, record labels, music publishers, performance rights organizations and streaming services (such as Pandora) support these bills and are asking Congress to pass them as part of a unified piece of music legislation in 2018. SoundExchange endorses this package, in line with our ongoing efforts to make our country’s music licensing system more just for everyone.
There is, unfortunately, one significant naysayer: SiriusXM. In advertisements and recent statements by the company, SiriusXM says that the legislation should be rejected because it fails to address a glaring inequity in our public policy: that broadcast radio does not pay performers for the use of their sound recordings, while SiriusXM does.
SiriusXM is right about broadcast radio. This system is unfair. Broadcast radio should absolutely compensate creators of sound recordings. For far too long, terrestrial (FM) radio has used the music of hard working artists to attract listeners to their stations, while paying those artists nothing for their work.
But this is not a reason to abandon an industry wide agreement on legislation addressing other important issues.