From what we have gathered, on May 15, the Senate will vote on the Music Modernization Act (which now includes the Classics Act and the AMP Act). It’s flying through the walls of government faster than anything we’ve ever seen. Some call it unprecedented. Some say it’s been a long time coming. The music member organizations are touting this as if we are finally getting our moment in the sun. But are we really?
ASIDE FROM CREATING A DATABASE — IS THE MMA A LANDMARK OR LANDMINE FOR MUSIC CREATORS, PRODUCERS, AND PERFORMERS?
There are arguments on both sides from within the music creator community, and it is hard to know who is “right.” All we know is that all of the “member” organizations that directly impact how musicians and music creators get paid (the AFM, ASCAP, BMI, SoundExchange) have communicated to their members to support this bill, to sign numerous petitions to Congress to ensure it passes, etc., without much member discussion on what the cons are of the legislation. In addition, the advocacy organizations (NARAS, SONA, NSAI, the SCL) have also trumpeted support without much point by point member discussion or debate, which to us is deeply concerning.
Is the MMA truly a landmark win for ALL music creators? Will money start flowing to the “little guy” who doesn’t have a publishing deal and plans to utilize streaming services to distribute his/her music, who is totally DIY, who doesn’t understand/care about the inner workings of the music industry and what the difference is between AFM, SAG-AFTRA, ASCAP, BMI, SoundExchange, and Advocacy-only groups such as NARAS, SONA, and NSAI? (This, by the way, is the majority next generation DIY musicians who upload millions of tracks into the streaming services every year.) What will REALLY change for that DIY music creator, producer, or performer? Can he/she plan to retire off of the whopping increase in earnings that passing the MMA will provide? Will they be able to figure out how to register to get their windfall in time before the publishers who are behind the MMA claim it?
If the MMA legislation is so much of a windfall moment for all music creators, producers, and performers — why is it so hard to find a concrete example (or have the advocacy groups even CREATE an example to relate to) of a DIY music creator and how the MMA will help him/her earn more income for their music (or musical contribution) from streaming? Why haven’t the member organizations provided examples of “if you wrote this, recorded this, produced this, and/or released it on a streaming platform, this is how passing the MMA will improve your music creator/producer/performer life” as a part of their non-stop rally of support for this bill? And what about the musician unions? If they want musicians to support the MMA, why haven’t they provided any examples of how a session musician (or lead singer) who played/sang on a track that is now released on a streaming service will benefit?
YOU HEARD IT HERE FIRST: THE “LANDMARK” DATABASE WILL MAKE OR BREAK THE MMA’S (THE MLC’s) SUCCESS
[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
[Editor Charlie sez: Here’s how it works–DiMA cons the entire music industry into supporting the omnibus “Music Modernization Act” in the House and then stabs the artists and producers in the back in the Senate, passes their new safe harbor and blanket compulsory license, strips out the producers and pre-72 artist bills and laughs their asses off. Why? Because they conned everyone into voting for their new safe harbor on the assumption that there was something in it for everyone. (Remember “get on the bus”?)
Think it can’t happen? Think they won’t do it? Think again.
Remember that the omnibus version of the MMA passed unanimously out of committee and then on the floor of the House 415-0. Which was weird. Why didn’t the usual suspects vote against it?
A civics refresher–in order to become law both the House and the Senate have to vote on the identical bill (either directly or in conference at the end of the session) which is sent to the President to either veto or sign. Procedurally, a lot of Senate business gets done by unanimous consent. So you would have expected to see the same bill get introduced in the Senate as was voted on in the House, right? Assuming that the object was to actually pass the same bill.
However, the component parts of the version of the MMA passed by the House were introduced as separate bills in the Senate (AMP (payments to producers), CLASSICS (pre-72 fix) and the Music Modernization Act (mechanical royalty collective and compulsory license). Separate bills require separate “votes” or must pass or fail by unanimous consent.
This means that unless the Senate “gets on the bus,” the three separate bills will be voted on separately. That also means that one but not all could pass, two but not all could pass, or all three could pass. It also means that since the “popular” House version of the just the safe harbor/compulsory license parts of the MMA could get introduced in the Senate as a replacement for the current Senate version. (Of course it was only “popular” because it included AMP and CLASSICS.)
David Lowery has put is finger on a serioius problem–if the Senate does not pass AMP and CLASSICS but does pass MMA in the form that passed the House, that means that when the bills go to the conference committee at the end of the session–after the November elections–the conference committee could take the new copy of the House version of just the safe harbor and compulsory license and strip out AMP and CLASSICS.
Shills for the Digital Media Association, the Internet Association and Google are currently arguing for exactly this result as David notes. And don’t forget that the current head of the Digital Media Association spent a chunk of his former career at Pandora and SiriusXM stiffing pre-72 artists and fighting the Turtles class action before he joined DiMA. It would be a surprise if he had any intention of righting that wrong.]
Artists give Digital Media Association (DiMA) ride from House to Senate (illustration Mīrzā Raḥīm 1847 public domain). Wikipedia summarizes the fable of the Scorpion and the Frog as follows: A scorpion asks a frog to carry it across a river. The frog hesitates, afraid of being stung, but the scorpion argues that if it did so, […]
[Rob Levine puts his finger on the central objection that most songwriters have about the Music Modernization Act–the lack of incentives to stop paying the current hit songwriters with other people’s money on black box distributions. Every songwriter knows that what a wise man one said–they may be riding high in April, but they could get shot down in May. With very few exceptions that black box will eventually be their money.]
The focus should be on getting as much unclaimed royalties as possible to the publishers and songwriters who actually earned it.
The part of the Music Modernization Act that reconfigures the way mechanical royalties are collected and distributed in the online world has something for everyone in the publishing business. Streaming services that comply with the new law can no longer be sued for statutory damages for copyright infringement. Music publishers gain more control over how mechanical royalties are paid. Most publishers and songwriters should make more money. So it seems almost churlish to point out that the only issue that involves mechanical royalties that the bill won’t necessarily fix is how hard it is for streaming services to match recordings with compositions in order to accurately pay publishers — which is what created the push to pass it in the first place.
The bill does create a mechanism to improve that situation, and a relatively simple fix to the law would make sure it did. Congress should make this fix and then pass the bill, since it will stabilize the music streaming business and update the way publishers are paid in the online world.
[Editor Charlie sez: Scott Cleland takes an excellent deep dive into the “leechonomics” of the safe harbors afforded to the special people who are members of the Internet Association and the Digital Media Association. This corporate welfare was most recently replicated in the punitive Music Modernization Act retroactive safe harbor bolstering profits from copyright infringement for the special people which passed the House Judiciary Committee on the same day that the Congress cut back the CDA 230 safe harbor for the same special companies and cut their profits from sex trafficking.]
This post introduces a new white paper here with a first-of-its-kind, cost-estimation model of the cumulative hidden public costs of U.S. Internet industrial policy* entitled: “Internet Platform Corporate Welfare and Leechonomics.” *U.S. Internet-first, industrial policy in the 1996 Telecom Act, effectively exempted only Internet companies from: all U.S. communications law, regulation, and public responsibilities; normal non-communications Federal/State regulation; and normal civil liability for what happens via their platforms and business models.
Nutshell Summary: Sweeping Government exemptions and immunities from risks and costs overwhelmingly favor zero-sum, parasitic policy arbitrage and corporate welfare, which perversely fosters unproductive “leechonomics.” U.S. Internet policy most incents platform business that maximizes arbitrage spreads, i.e. taking maximal societal risk that un-immunized competitors can’t take, where the benefits can be capitalized by platforms, and the costs socialized to the public (>$1.5T), because the government has only exempted and immunized platforms from normal accountability and responsibility for consumer welfare.
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.