@robertblevine_: Legacy Artists File Brief in Lawsuit Against Pandora Over Pre-’72 Recordings

[Editor Charlie sez: Failing to pay pre-72 artists the digital royalties they are entitled to is another example of how Big Tech forces wasteful lawsuits–and cons the industry into false choices on “omnibus” legislation!]

A veritable supergroup’s worth of sixties musicians on Friday (Jan. 12) filed an amicus brief in a California lawsuit against Pandora for its use of sound recordings made before 1972, and thus not covered by federal law. Although the issue in the case — originally brought by Flo & Eddie, Inc., which owns the Turtlesrecordings, and currently before the California Supreme Court — is fairly obscure, the artists are anything but. The amici artists include Carole King, Melissa Etheridge and Doors drummer John Densmore; the estates of Hank Williams and Judy Garland; and companies like the Beatles’ Apple Corps., Grateful Dead Productions and Experience Hendrix.

At stake is whether, and how, non-interactive streaming services like Pandora need to compensate performers and labels for their use of older recordings that are still covered by state law. The music industry has also been lobbying for a legislative answer to the question, and the recently introduced CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) would require digital services to pay for the use of recordings made before 1972. On Jan. 26, the Friday before the Grammy Awards, the House Judiciary Committee will hold a “field hearing” in New York on this and other copyright issues, according to multiple sources.

Read the post on Billboard

@allaccess: @musicFIRST Executive Director Chris Israel Calls for Fair Treatment of pre-72 Artists

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.]

Read the post on AllAccess

Google Shills Pile On: Feds don’t protect pre-72 recordings except with the Safe Harbor


I must be crazy to be in a loony bin like this.

From One Flew Over the Cuckoo’s Nest, screenplay by Laurence Hauben and Bo Goldman, based on the novel by Ken Kesey.

The creative community was visited with yet another example of the corruption of the so-called “safe harbor” with the ruling from the Second Circuit Court of Appeals in the Vimeo case.

This is particularly offensive to pre-72 artists and their heirs who already have the government’s boot on their throat with the “Pandora loophole” that gives digital services a dodge on paying royalties on pre-72 recordings under the compulsory sound recording license.  The Vimeo ruling just gave artists the government’s other boot up the butt on safe harbor.

Here’s the logic:  Law clerks who are wannabe Googlers see to it that Google always wins.

No, sorry, here’s the logic:  Federal copyright law does not protect pre-72 sound recordings which are protected (if at all) under state law.  The Pandora loophole is a supposed ambiguity in the federal copyright law establishing a performance right in sound recordings, a compulsory license in those recordings, and a royalty for that compulsory license.

So according to Pandora, federal law does not protect pre-72 masters from exploitation by Google, YouTube, or Vimeo.  Only state law protects those recordings because the Congress did not explicitly include them.

But–when it comes to federal protection of the insane DMCA safe harbor, federal law protects tech companies exploiting those same pre-72 recordings.  The Second Circuit gets to this tortured interpretation of the safe harbor by relying on the copyright treatise written by Google’s Senior Copyright Counsel and rejected the learned counsel of the U.S. Copyright Office which favored excluding pre-72 from safe harbor.

The Second Circuit’s decision turned on this sentence (p. 28):

Congress did not qualify the phrase “infringement of copyright” by adding, as it did in other circumstances, the words, “under this title.”
So because Congress didn’t say “under this title” to limit the safe harbor to exclude pre-72 recording, remember that they didn’t say “under this title” to limit the compulsory sound recording license to exclude pre-72 recordings, either.
Remember, this is the court that gave us the absurd ruling in Viacom v. YouTube that allowed Google to build yet another business on our backs.
Because what’s good for the goose is just good for the goose.  No ganders allowed.