Save the Date: Nov. 28 Music Modernization Act at the Dallas Bar Association

November 11, 2018 Comments off

If you’ll be in Dallas, Texas on November 28, I will be discussing the Music Modernization Act at a luncheon sponsored by the Dallas Bar Association Entertainment & Sports Law Section.  The meeting is scheduled for noon at the Belo Mansion,
2101 Ross Avenue in Dallas.

The talk will focus mostly on the Music Licensing Collective and Digital Licensee Coordinator in Title I, but will also cover the Wyden Loophole in Title II for pre-72 recordings.

More information on the Dallas Bar Association site.

Read Highlights of Managing Change Under the Music Modernization Act’s Music Licensing Collective in the current issue of the Texas Entertainment & Sports Law Section Journal.

 

Preserving the Bond

November 11, 2018 Comments off

France can be deceptively cold and really rather miserable in the late fall.  This can be particularly true of the French mountains and the Vosges Mountains are no exception.  They’re not particularly high mountains by comparison to Colorado, but they’re high enough to feel the altitude if you’re used to living at sea level.  

A strategic fact about the Vosges Mountains is that towns like Bruyères and Biffontaine are about 75 miles from Strasbourg, and Strasbourg is a stone’s throw from Germany.  And that’s where the 1st of the 141st (First Texas), a unit of the 36th Infantry Division (T-patchers), was heading in late October 1944 when they ran into the 244th Infantry Division of the German Army and other German units.

The Texans had fought their way through North Africa, Sicily and the Italian invasion, but got surrounded in the Vosges.  They were cut off from resupply or reinforcements to the extent that they had to be supplied by air drops because no one could get to them.  Vastly outnumbered, the 442nd Regimental Combat Team was ordered to rescue the Texas outfit.

In the Battle of Bruyères, the 442nd continued to distinguish themselves in brutal sacrifice for their brothers in arms.  As Daniel Inouye told the story, the 442nd lost more men than they ultimately rescued.  But let the citation of Barney Hajiro of the 442nd speak for him and his brothers:

For The President of the United States of America, in the name of Congress, takes pleasure in presenting the Medal of Honor to Private Barney F. Hajiro, United States Army, for conspicuous gallantry and intrepidity in action above and beyond the call of duty while serving with Company I, 3d Battalion, 442d Regimental Combat Team, attached to the 36th Infantry Division, in action against the enemy on 19, 22, and 29 October 1944, in the vicinity of Bruyeres and Biffontaine, eastern France. 

Private Hajiro, while acting as a sentry on top of an embankment on 19 October 1944, in the vicinity of Bruyeres, France, rendered assistance to allied troops attacking a house 200 yards away by exposing himself to enemy fire and directing fire at an enemy strong point. He assisted the unit on his right by firing his automatic rifle and killing or wounding two enemy snipers. On 22 October 1944, he and one comrade took up an outpost security position about 50 yards to the right front of their platoon, concealed themselves, and ambushed an 18-man, heavily armed, enemy patrol, killing two, wounding one, and taking the remainder as prisoners. On 29 October 1944, in a wooded area in the vicinity of Biffontaine, France, Private Hajiro initiated an attack up the slope of a hill referred to as “Suicide Hill” by running forward approximately 100 yards under fire. He then advanced ahead of his comrades about ten yards, drawing fire and spotting camouflaged machine gun nests. He fearlessly met fire with fire and single-handedly destroyed two machine gun nests and killed two enemy snipers. 

As a result of Private Hajiro’s heroic actions, the attack was successful. Private Hajiro’s extraordinary heroism and devotion to duty are in keeping with the highest traditions of military service and reflect great credit upon him, his unit, and the United States Army.

The 442nd was the most decorated unit in the history of the U.S. Army with 8 Presidential Unit Citations, 21 Medal of Honor recipients and 18,143 other medals.  Barney Hajiro also received the French Legion of Honor, the British Military Medal and the Bronze Star.  And all of the 442nd were made honorary Texans by Governor John Connally.

You can’t be in National Airport in Washington DC for very long (especially on a Friday) without noticing a few enlisted men and women, often Marines, hanging around a gate.  If you have the time, you’ll soon see an “Honor Flight” disembarking from that gate and what is often a long line of veterans filing out to sustained and enthusiastic applause from the transiting passengers and staff.  The enlisted service members are there to meet the flight and assist the vets in wheel chairs.  These flights are often comprised of World War II vets who are visiting DC to view their new World War II Memorial.  As some of you know all too well, there are fewer of them every year.

We always think of the 442nd a couple of special times each year as do many others who sent their boys off to Camp Bowie and then to World War II as T-Patchers.  It’s easy to say that we owe a debt to the 442nd that can never be repaid, but I don’t think the vets look at it that way.  It’s more of a bond that should be preserved by kindness, respect and devotion.  Preserving their memory is a recognition of that bond.

 

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Hill 555 Monument, Bruyeres, France

 

COUNTDOWN TO MODERNITY (11/5/18)–The Progress to Production Chart for the Mechanical Licensing Collective

November 5, 2018 Comments off

As best we can tell from the outside looking in, this chart has the dates for key events in the critical path to launch for the Mechancial Licesing Collective as required by the Music Modernization Act–the “Countdown to Modernity.”

This chart is a work in progress, and if anyone sees anything wrong in it or something that should be clarified or corrected, please let us know.  It should be considered a draft, but we hope that it will solidify over the next few weeks.

To our knowlege, no one else has published a chart like this.  The main takeaway from this chart should be the clock is ticking and time is going by.  Our prediction?  Time will become the MLC’s biggest enemy, if that hasn’t already happened in the drafting of the Music Modernization Act.  What we don’t see in the MMA is any discussion of what happens if a deadline is blown for whatever reason.

But mark your calendars–we see the first key date as January 7, 2019.  That’s 64 days from now and holidays count.

ARTIST RIGHTS WATCH
COUNTDOWN TO MECHANICAL LICENSING COLLECTIVE LAUNCH
WEEK 4

KEY DATES SCHEDULE FROM ENACTMENT DATE (10/11/18)

TO LICENSE AVAILABILITY DATE (1/1/21)

EVENT ACCCOMPLISHED WHO OWNS? TIME EXPIRED   BEFORE LAD TIME REMAINING TO LAD
REQUEST FILING TO BE MLC STATUS UNKNOWN—Deadline  1/7/2019 COPYRIGHT OFFICE 90 DAYS 726 days
DESIGNATION OF MLC STATUS UNKNOWN—Deadline  7/7/2019 COPYRIGHT OFFICE 270 days 545 days
FORMATION OF MLC NONPROFIT STATUS UNKNOWN MLC 4 weeks 112 weeks and 5 days
SUBSTITUTION OF BLANKET LICENSE FOR ALL EXISTING COMPULSORY LICENSES AUTOMATIC 1/1/2021 COPYRIGHT OFFICE 789 days
MLC BUDGET STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/DLC/CRJ 112 weeks and 5 days
INITIATE ASSESSMENT PROCEEDING w/CRJs [MUST COMMENCE NO LATER THAN 7/7/2019]

STATUS UNKNOWN

MLC/DLC/CRJ 271 days 545 days
ASSESSMENT RULING [PUBLISHED IN FR NO LATER THAN 7/7/2020] MLC/DLC/CRJ 637 days 179 days
APPEAL OF ASSESSMENT RULING 30 DAYS AFTER PUBLICATION OF ASSESSMENT RULING MLC/DLC/CRJ/ DCCOA 667 days 149 days
MLC BUSINESS PLAN STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
ANNOUNCED BOARD NOMINEES STATUS UNKNOWN

Update on Nominations (Deadline November 15, 2018):  NMPA and NSAI are accepting nominations for board seats.  Songwriter board selection by Steve Bogard (NSAI), Rick Carnes (SGA), Lynn Gillespie Chater (SGA), Dallas Davidson (BMI), Chris DeStefano (NSAI), Bob DiPiero (BMI), Dan Foliart (ASCAP), Adam Gorgoni (SONA), Michele Lewis (SONA), Paul Williams (ASCAP)

(Assume deadline of 1/7/19)

MLC 90 DAYS 726 days
APPOINTED BOARD STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
APPOINTED DLC STATUS UNKNOWN—Deadline  7/7/2019 COPYRIGHT OFFICE 270 days 545 days
ENGAGED  MLC VENDORS STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC 90 DAYS 726 days
PAID MLC VENDORS STATUS UNKNOWN (ASSUME 7/7/2020 IF NO APPEAL OF ASSESSMENT) MLC 270 days 545 days
ANNOUNCE MLC DATA STANDARDS STATUS UNKNOWN MLC/DLC
REGULATIONS* STATUS UNKNOWN COPYRIGHT OFFICE
COMMENTS AND REPLY COMMENTS ON REGULATIONS STATUS UNKNOWN ALL
EXPLANATION OF OPERATIONS: HOW TO REGISTER WITH MLC AND COST OF REGISTRATION STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
REGISTRATION START DATE STATUS UNKNOWN

 

MLC=Mechanical Licensing Collective

DLC=Digital Licensee Coordinator

CRJ=Copyright Royalty Judges

DCCOA=District of Columbia Circuit Court of Appeals

CO=Copyright Office

LAD=License Availability Date

*Topic areas to be updated as announced

Please take the New Survey on Music Subscription Royalties

November 3, 2018 Comments off

The survey link is here, thanks!

See SPOT Fall–Does the Decline of Spotify’s Stock Price Mean Anything? — Music Tech Solutions

November 2, 2018 Comments off

What’s happening with the Spotify stock price? Chris Castle argues that the main downward driver for SPOT is the market catching up to the Spotify inflated DPO price and its subsequent insider-heavy stock sales.

via See SPOT Fall–Does the Decline of Spotify’s Stock Price Mean Anything? — Music Tech Solutions

Ethical Pool: More for few or fewer for more – The Results of a Comparative Study on Pro Rata and User Centric Distribution Models from Finland — Music Tech Solutions

October 31, 2018 Comments off

The First Rule of Lawfare: Is Google’s Active Measures Campaign on Article 13 a Trial Run for Election Meddling by a US Non-State Actor?

October 28, 2018 Comments off

Well, I wake up in the morning
Fold my hands and pray for rain.
I got a head full of ideas
That are drivin’ me insane.
It’s a shame the way she makes me scrub the floor.
I ain’t gonna work on Maggie’s farm no more.

From Maggie’s Farm, written by Bob Dylan

Google on the Back Foot with the Copyright Directive

Google and Facebook recently suffered a lobbying debacle in Europe over the European Copyright Directive.  That legislation cuts back the European version of the what Americans call the DMCA safe harbor.  A triumph for artists, Google’s European loss was the worst lobbying defeat that Silicon Valley has been handed in a long time—at least since the SESTA legislation cut back another safe harbor in the U.S.  So it shouldn’t be surprising that YouTube’s CEO is trying to influence YouTubers to lobby on behalf of Big Tech—Google desperately needs some human shields, which is exactly what participating YouTubers would be.  Once again scrubbing the floor for the House of Google.

At its core, the Copyright Directive cuts back the ability of services like YouTube to profit from infringing activities on their platforms.   One would expect corporations profiting from that safe harbor to lobby against it, just like supporters lobbied for it.  But Google and Facebook went well beyond simply lobbying by attempting to sow discord and undermine democratic institutions.  

And they got caught—red handed.   They were caught conducting active measures such as spamming, bot farming and overt messaging campaigns calculated to undermine the legislative process in the European Parliament.  You can read about it in a number of leading European publications starting with investigations by both the Times of London and Frankfurter Allgemeine Zeitung.

 

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Google’s Article 13 Lobbying Campaign from Volker Rieck

 

Most importantly Google supporters like the Pirate Party promised—or more accurately “threatened”—that “constituents” would show up to protest, and very few did.  So Google’s active measures campaign lacked a human face—the key component that brought it down.

German MEP Helga Truepel explained why the plenary vote on the Copyright Directive was so lopsided against Google at a press conference :  “…[It was] due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally pissed off, cause in the streets there were a maximum 500-800 people last Sunday [at Pirate Party protests]… and we were only deleting emails for weeks now.”

Plan B and the First Rule of Lawfare

Fast forward to today: Google needs a Plan B.  Desperately.

Google’s problem today is the Members of the European Parliament (and some members of the UK Parliament) are wise to their jive after the plenary vote.  My bet is that story is not yet concluded as it merits a criminal investigation.  Because when a corporate covert influence operation is discovered and attribution is certain, it’s hard to put that genie back in the bottle (just like Internet piracy).

But while Google desperately needs a Plan B to retain its safe harbor, publicly acknowledging its influence operation is politically awkward, bread crumbs or no.  Like fight club, the first rule of lawfare is that it does not exist.

Google and Facebook are struggling to find that Plan B as the EU lawmaking process continues with the “Trilogue”, the next step to the Copyright Directive becoming national law in the European Union.  Google seeks another way to overwhelm the system by finding human shields to mingle with the bots.  And that’s where YouTube CEO Susan Wojcicki comes in with her recent appeal to YouTubers to protest the Directive.

Ms. Wojcicki may want us to overlook that Google just got caught running active measures against a democratic institution to meddle in the legislative process on another continent.  But members of the European Parliament have not forgotten.  She may be able to pull the wool over YouTuber’s eyes, but it just makes her human shields look even more duped and her methods look especially more alarming—if not terrifying—in a post-Cambridge Analytica world.

Safe Harbors, Addiction and Human Shields

Don’t underestimate how important these safe harbors are to Google, Facebook and its fellow monopolists.  They were ready to be on the wrong side of child sex trafficking legislation to preserve their other safe harbor (Section 230 of the “Communications Decency Act”)—that surely strained Sheryl Sandberg’s performance as Wendy to Mark Zuckerberg’s “boy who wouldn’t grow up.”  These safe harbors are crucial to Google, Facebook and Twitter—because it protects them as they snort up the addictive content and reward (if not sell) views, likes, follows, and “engagement.”  

Remember—YouTube is not in the music business, or even in the content business at the end of the day.  Google and Facebook are in the addiction business.  

In particular the behavioral addiction business (see Irresistible by Dr. Adam Alter).  If you’re in the addiction business, safe harbors are very, very important.  Just ask the narcotraficantes.  And don’t forget—the U.S. Attorney for Rhode Island investigated Google for violations of the Controlled Substances Act that resulted in a $500,000,000 fine and a non-prosecution agreement (not to mention a shareholder lawsuit).

Straight Outta Minitrue

But I suspect it is the embarrassing lack of human shields cited by MEP Helga Truepel that drove Ms. Wojcicki to issue a meandering tl;dr blog post trying to convince “YouTube creators” to fall in with the company line on the Copyright Directive. 

Ms. Wojcicki manages to get through her entire appeal without coming clean about the point of the Copyright Directive—YouTube profits from piracy through the safe harbor that the Directive would cut back, especially Article 13.  (There’s way more to the Directive than Article 13, but that’s another story.)

She would have YouTubers sign up to the “sky is falling” claims that “the unintended consequences of Article 13 will put [the highly profitable YouTube] ecosystem at risk”.  Why?  Because “[i]t would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content.”  

That is quite a leap—how is it that “smaller” YouTubers would be such a big problem?  After all of YouTube’s “advertiser friendly” changes that severely hurt the earning power of many YouTubers, does Ms. Wojcicki really think that YouTubers—a pretty clever bunch on the whole it must be said—are so gullible that they will miss the irony?  

And then she says this: “We are committed to working with the industry to find a better way.  This language could be finalized by the end of the year [in the Trilogue], so it’s important to speak up now.”

Given the breadth of the coalition supporting the Copyright Directive and opposing Google and Facebook, it’s not immediately clear who is “the industry.”  I can tell you that if she includes the music industry in that reference, I can save her some time.  

Nobody in “the industry” trusts Google, YouTube, Facebook or Ms. Wojcicki.  [Although the beachhead that Google scored with the MMA may make life interesting for publishers and songwriters wishing to protest against the hand that feeds the mechanical licensing collective.]  

And, frankly, I’d be surprised if many YouTubers trust her either.  Based on the vote supporting the Copyright Directive, there’s a wide swath of MEPs that have severe misgivings about all these Silicon Valley companies trying to run roughshod over Europeans.  And then there’s the two and probably soon to be three competition prosecutions against Google by the European Commission.  That’s a thing.

Ms. Wojcicki hasn’t learned (and I predict won’t ever learn) a simple truth that every record company and music publisher knows—don’t jack with the talent.  YouTube jacks with the talent frequently, so it’s unclear how the talent is going to react to this latest request that they take time out of their day to help YouTube.

It’s not a good look and it will come back to bite.  YouTube has been profiting from the safe harbor for its entire existence and wouldn’t know how to make an honest buck if their lives depended.

Is Election Meddling Next on Google’s Agenda?

Before Ms. Wojcicki tries to rally YouTubers as human shields to support Google’s billions on her bot farm, she needs to get her own house in order.

And members of the European Parliament need to get a grip on these active measures campaigns before Google goes beyond “lobbying” on an issue vote and moves on to meddling in campaign outcomes in a few months when the European Parliament stands for election.

In a post-Cambridge Analytica world, we all know it’s a short step from undermining opposition on a particular issue to undermining the election of a particular candidate.  And Google is just as capable of meddling as any state actor if not more so.

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