Guest Post by @theblakemorgan: Music’s Mentors and Heroes Get the Day They Deserve

IRM blake jerry

This is great day, and a huge victory for music makers. In a bipartisan move, Rep. Nadler (D-NY) and Rep. Issa (R-CA) have just introduced the “Classics Act,” H.R. 3301, which finally guarantees that music recorded before 1972 would receive payments from digital radio services. (Currently only sound recordings made after 1972 receive payments from digital radio services under some interpretations of federal law.)

This issue has been at the very center of the #IRespectMusic campaign, and I’m thrilled to see this bill come to fruition. It’s happened in great part, because of you. Each and every person connected to this campaign has had a hand in this victory, because the grass-roots pressure that continues to be put on our leaders is what wins the day, every time. So if you’ve signed the I Respect Music Petition, if you’ve taken a selfie with the hashtag, if you’ve written your representative, hosted an #IRespectMusic event in your town, shared posts, tweeted, any and all in between…you’ve helped win this great day.

This is such a powerful moment for two important reasons:

(1) All music makers should be paid for their work––but especially recorded music’s founding generation of music makers. These are our legacy artists of Jazz, Blues, R&B, and so many other genres. They’re our mentors, our heroes––artists who are now in their seventies or eighties––who’ve been incomprehensibly denied their right to be paid for their iconic contributions to our society. As many of you know, the great Lesley Gore was not only one of those iconic artists, she was my godmother, and it infuriated me to no end that she was denied payment for her priceless work. This crusade is not simply ideological or professional for me, it’s personal.

(2) This moment is also significant because for the first time, a major Congressional bill that benefits music makers is being endorsed by an entity from “the other side.” In this case, internet-radio giant Pandora. Many if not most of you know my own history with Pandora (if not, start here).

It would be hard to find anyone, anywhere, who’s been more consistently critical of them than I’ve been. However, by standing up for this bill and standing with music makers, Pandora is doing the right thing and, I congratulate them for that. As a smart person once said, “You don’t make peace with your friends, you make peace with your enemies.” So, if this is a sign that Pandora has seen the light and will move forward in partnership with the people who make their only product––music––then I’m grateful, and I welcome them to a new future. A future where each of us understands that music isn’t created in a vacuum. It’s created by music makers. And each of us music makers has the right to expect from our profession what others expect from their professions. That through hard work and determination, perspiration and inspiration, we’ll have the same fair shot to realize our dreams, answer our callings, support our families.

Ours is a profession built on commitment. And respect.

Our music mentors and heroes have known that for a long time. They’ve deserved this day for a long time.

I’m going to honor them by fighting for this bill with everything I have.

I respect my mentors. I respect my heroes.

I respect music.

@repjerrynadler: Reps. Nadler, @DarrellIssa Pre-1972 Copyright Fix with Introduction of CLASSICS Act — Artist Rights Watch

WASHINGTON, D.C. — Today, Ranking Member Jerrold Nadler (D-NY) and Chairman Darrell Issa (R-CA) of the House Judiciary Subcommittee for Courts, Intellectual Property and the Internet introduced bipartisan legislation to close a long-standing gap in federal copyright law. The Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (the CLASSICS Act), H.R. 3301, resolves uncertainty over the copyright protections afforded to sound recordings made before 1972 by bringing these recordings into the federal copyright system and ensuring that digital transmissions of both pre- and post-1972 recordings are treated uniformly.

The CLASSICS Act serves as an update to the “pre-72 treatment” of the Fair Play Fair Pay Act – a broader music licensing bill introduced by Chairman Issa and Ranking Member Nadler earlier this Congress – and represents a broad consensus from a variety of stakeholders across the music landscape.

Congressman Jerrold Nadler: “For years, we have been working to ensure royalty payments for artists who recorded many of our great musical classics before 1972. The Fair Play Fair Pay Act set down a clear marker on the need to resolve the dispute over pre-72 music, as we worked toward a long-term solution that benefits multiple stakeholders. The bill we are introducing today updates this Pre-72 provision, once and for all guaranteeing royalty payments for our great legacy artists while providing certainty for digital music services. Hopefully, this new measure will serve as an example of the consensus that can be reached between the creators and distributors of music as we work to comprehensively update our music licensing laws. Many of these older musicians are past their working years and have no other way to make ends meet. I’m thankful to the supporters of this bill for recognizing that pre-72 recordings have value and that those who create it should be paid regardless of their age.”

Congressman Darrell Issa: “This an important and overdue fix to the law that will help settle years of litigation and restore some equity to this inexplicable gap in our copyright system. It makes no sense that some of the most iconic artists of our time are left without the same federal copyright protections afforded to their modern counterparts. This bill is the product of a great deal of work to build consensus across party lines and varying interests all-over the music and entertainment landscapes on how to best resolve this long-standing problem. I’m very proud of the work we’ve done here. It will go a long way helping bring music licensing laws into the twenty-first century.”

The bill is introduced with the support of stakeholders across the music and entertainment industry including American Association of Independent Music, the Recording Industry Association of America, Pandora, musicFIRST, the Internet Association, the GRAMMYs, SoundExchange, Screen Actors Guild‐American Federation of Television and Radio Artists, American Federation of Musicians, the Content Creators Coalition, the Future of Music Coalition, the Rhythm and Blues Foundation, and the Living Legends Foundation. The bill is also supported by several noted artists, many of whom spoke out in support of the CLASSICS Act.

In addition to Chairman Issa and Ranking Member Nadler, Representatives John Conyers (D-MI), Marsha Blackburn (R-TN), Tom Rooney (R-FL), and Ted Deutch (D-FL) joined as original co-sponsors to the legislation.

BACKGROUND INFORMATION AND ADDITIONAL RESOURCES:

Congress made sound recordings eligible for federal copyright protection with the Sound Recording Amendment of 1971, but the law as passed only applied to works created on or after February 15, 1972. Sound recordings made before 1972 were excluded from federal copyright protection

This gap has meant that different recordings made before 1972 have been subject to an inconsistent patchwork of different laws, creating significant uncertainty for rights holders music creators, and distributors, including digital streaming services, who wish to be able to fairly compensate artists and utilize these recordings.

The differing treatment of pre and post 1972 was an inexplicable and arbitrary oversight on the part of Congress. The U.S. Copyright Office has expressed their bewilderment with the decision, writing in their recent report on federal copyright protections for pre-1972 sound recordings that “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”

This gap has meant that updates to copyright law and new protections extended to sound recordings under the Copyright Act of 1976 and the Digital Millennium Copyright Act have excluded pre-1972 recordings. The most significant of these being the ‘safe harbor’ provisions for online piracy and ‘compulsory licenses’ made available for internet and satellite radio streaming.

Quotes of praise for the CLASSICS Act:

“This is a great step forward for legacy artists. Thank you to Representatives Issa and Nadler for recognizing that music made before 1972 is just as important and valued as post-1972 music.” — Mary Wilson, The Supremes

“I am overjoyed and extraordinarily grateful for Congressmen Issa and Nadler’s bipartisan relentless efforts to correct an inequality in the law that discriminates against myself and my peers– the legacy artists who recorded our hit records prior to 1972. It is has been unfair and outrageous that the artists, such as myself, who recorded some of our country’s most iconic music, have been forced to resort to lawsuits in order to get paid for the commercial use of their recordings. It is phenomenal that finally there is light shining at the end of this very long tunnel we’ve been looking at for so long. Knowing there is a consensus agreement to resolve any portion of this outrageous problem makes me proud and furthers my hope that I will still be alive to see the other issues Reps. Nadler and Issa have championed in the Fair Play Fair Pay Act come to similar positive bipartisan resolution and conclusion.” — Sam Moore

“I have found so much inspiration in the songs of the past, the songs I grew up with. The least – the very least – I could do is show them respect and honor them by urging Congress to fix the law so that they can get paid by digital radio. That’s why this bill is so important.” — Melissa Etheridge

“Every artist making music today stands on the musical shoulders of those who came before them. I would not be doing what I do if it weren’t for the heritage acts I grew up listening to, idolizing and trying to emulate. The fact that these amazing artists are not getting compensated for their indelible work and profound influence is simply unfathomable to me, and must be fixed. I am grateful to the sponsors of this bill for finally trying to even the scales, as there is no future in music without honoring the past.” — Dave Koz

“It’s a travesty that artists who shaped our creative minds and inspired us to want to play music in the first place are not being  acknowledged and compensated for the music they gave us.  I’m hopeful this important legislation will address this issue for all time.” — Carlene Carter, Singer-Songwriter, Daughter of country music legends June Carter Cash and Carl Smith, stepdaughter of Johnny Cash, and granddaughter of “Mother” Maybelle Carter of the original historic Carter Family

“The fact U.S., copyright protection does not apply sound recordings made prior to February 15, 1972 makes absolutely no sense.   Early rockers like me and my peers are on heavy rotation these days on popular oldies channels and on digital radio services.  And unlike many other platforms, we’re not compensated for it. How is that fair? It’s our music that attracting listeners and thus we should be paid.   I’m grateful for the leadership of Reps. Issa and Nadler and their efforts to fix this enormous injustice with this important bill.” — Steve Cropper, legendary guitarist, songwriter and producer

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via @repjerrynadler: Reps. Nadler, @DarrellIssa Pre-1972 Copyright Fix with Introduction of CLASSICS Act — Artist Rights Watch

Why Spotify Needs A Magistrate

Spotify was served in federal court in Nashville with two new lawsuits for massive copyright infringement by parties represented by Richard Busch (who has a strong track record in the area).  Based on the allegations in the complaint and reports about what appear to be breaches of Spotify’s recently concluded settlement with NMPA, it seems abundantly clear that when it comes to mechanical royalties, the company is simply not getting it done.

It must be asked, where is the board? Who is minding the store at Spotify? One conclusion that the latest litigation suggests is that Spotify’s future will be a lot like Napster–endless litigation from songwriters and publishers who are either not part of the settlements because they opted out or whose works were infringed recently and are not picked up by any settlement.  This should give any board of directors pause–not to mention a gut check with their D&O insurance company.

But what about the songwriters who don’t want to go through the litigation maze and just want to be paid fairly when Spotify plays their songs?  As long as Spotify takes a cavalier attitude–even in the face of massive litigation–no one can trust the company to do the right thing.

As Matt Pincus told the New York Times in a different, but relevant, context: “The more controversies [Spotify] have that have a moral underpinning to them, the more of a problem they will have in the bigger fight.”

Not only does Spotify have the “black hat” problem with songs and songwriters, they also make people wonder about their reporting and licensing on sound recordings and artists.  If Spotify’s accounting on songs is so sloppy and the company is either so slow or so unwilling to fix themselves, how can they possibly be doing it perfectly on sound recordings?

There is a solution to this that one would think both sides would welcome–a court appointed federal magistrate to oversee an independent third party rendering Spotify’s royalty statements and handling its licensing.  There is an apocryphal story that Goldman Sachs partners are under continual audit by the IRS by means of an IRS office inside Goldman.  While that may seem oppressive if true, at least a Goldman partner would know that they were already clean with the IRS.

If a court ordered a federal magistrate to review Spotify’s royalty reporting for say the next 10 years, songwriters might actually get paid and the Spotify board and their insurance company could breathe easier.  Not to mention the implicated employees.

Tim Westergren Steps Down at Pandora

July 18, 2017 1 comment

In a reshuffle of Pandora’s executive team, founder Tim Westergren is stepping down as Pandora’s CEO along with other senior executives.  This follows a series of missteps that have gotten significant amounts of ink, including from my own pen over the years.

It is important to remember that Tim worked very, very hard to turn his music genome idea into a public company.  The core idea behind Pandora, then Savage Beast, was a very cool idea which I was impressed by when he demoed it for me when I worked in Silicon Valley.  Unfortunately or perhaps fortunately for Tim he missed the Dot Bomb Boom which probably added a couple years onto his time to market but separated him from the no-idea Socks.com phenomenon.  A lesser man might have been deterred by these uncontrollable market headwinds, and believe me, many were.

Tim brought his company to the public markets and wrote some very large checks for the industry as a whole.  While we can argue with some of Pandora’s methods and its inconceivably silly lobbying strategy (if you can call it that), the fact is if there had been no Tim Westergren, it’s likely that there would never have been a Pandora and none of the good that has come from that company.

Do not underestimate what a colossal bear it is to do what Tim did.  It’s hard to launch a digital music service, it’s hard to deal with our industry as a whole, it’s hard to walk the line of both supporting artists and satisfying investors.  It’s hard to make payroll, it’s hard to make rent, it’s hard to deal with the panoply of incomparably untrustworthy jerks surrounding a CEO in a public company.

But then as a great man once said, why does Rice play Texas?

Tim made some mistakes but he did a lot of good, too.  If you’re looking for perfection, you’re not going to find it in this life.  We should wish him well and remember one thing.

What comes next from Pandora may make the past look like a walk in the park.  We shall see.

Hey Alexa, Where’s My Money? Address Unknown Update Courtesy of Paperchain

July 17, 2017 1 comment

We get an update this week on the total “address unknown” mass NOIs filed with the Copyright Office for the royalty-free windfall loophole.  This time we have to thank our our friends at Paperchain in Sydney for doing the work of decompressing the massive numbers of unsearchable compressed files posted on the Copyright Office website.  As you can see, there’s been an increase of approximately 70% since January 2017.   (For background, see my article.)

As you can see, Amazon is still far and away the leader in this latest loophole designed to stiff songwriters, followed closely by Google.  However, Spotify is moving on up.  Spotify does get extra points for starting late in March 2017, but they are catching up fast filing over 5,000,000 as of last month.

To put this in context–the Copyright Office as recently as September 2015 posted these “address unknown” NOIs in a single searchable PDF.  However, the Copyright Office  apparently changed the practice abruptly in early 2016 once the Big Tech hammer came down.  Based on the last PDF I could find, the total number of “address unknown” NOIs filed with the copyright office from January 2010 to September 2015 was approximately 4,800.

NOI 2015 Era Date Detail

Compare that approximately 4,800 in five years to approximately 45 million in 18 months.

Notable in its absence:  Apple Music has not filed a single address unknown NOI.  Somehow Apple seems satisfied with their licensing practice based on an absence of a single NOI.

NOI Table
Licensee Paperchain 4/16-6/17
Total 45,856,225
Amazon Digital Services 23,977,548
Google, Inc. 10,386,238
Spotify 5,020,002
Microsoft 3,522,100
iHeart Communications 1,565,763
Pandora Media, Inc. 1,316,512
The Overflow.com Inc. 66,326

Must Read: Weapons of Math Destruction

If you’re looking for longreads…you know, books…for your summer reading list, I’d strongly suggest Weapons of Math Destruction by Cathy O’Neil.  The author is a confirmed quant who has extraordinary insight into both the beneficial and the destructive power of algorithms.

Here’s an except:

The math-powered applications powering the data economy [are] based on choices made by fallible human beings.  Some of these choices were no doubt made with the best intentions.  Nevertheless, many of these models encoded human prejudice, misunderstanding, and bias into the software systems that increasingly managed our lives.  Like gods, these mathematical models were opaque, their workings invisible to all but the highest priests in their domain:  mathematicians and computer scientists.  There verdicts, even when wrong or harmful, were beyond dispute or appeal.  And they tended to punish the poor and the oppressed in our society, while making the rich richer.

I came up with a name for these harmful kinds of models:  Weapons of Math Destruction, or WMDs for short.

Needless to say, the one algorithm we all are affected by is Google’s search WMD.  What Google shows you in search results, how much Google knows about you and how much that affects which search results Google shows you, are each examples of mathematical models that encode human prejudice and make choices that the highest priests at Google decide you would want based on a given set of inputs scraped from your Gmail, Google Voice, YouTube viewing and what you search for online among other things.

Facebook knows a phenomenal amount of information about you, profiles you and tracks your every move on Facebook as well as off of Facebook to the extent possible.  And remember–if Mark Zuckerberg wants to run for President, we will have a true data lord in the campaign as a candidate for the first time.

When Spotify programs a playlist, they very consciously use scraped data about your listening habits and those of other Spotify users to create an algorithm that includes–and excludes–recordings.  We’re a long way from “it has a nice beat and you can dance to it” now.

When Amazon lets you search books they’ll only show you all the search results if you “sign in”–meaning identify yourself to Amazon’s algorithm.  And Alexa?  Ah, Alexa.  A little box that sits in the corner listening to you.  Google may send cars around to take pictures of your house and put them on the Internet, but Amazon’s algorithms actually run inside your house.

Algorithms, especially Google’s algorithms and what Facebook includes as news, can have a profound effect on democracy itself.  When Dr. Robert Epstein first wrote of how Google’s algorithm could rig elections in 2013 (and discussed on PBS Newshour), he was frequently attacked as something of a quack by Google executives who denied that such a thing were even possible.  Given the sudden discovery of fake news, the secret workings of Google’s algorithm to shape what we read has some pretty real interest.  I think this background makes Cathy O’Neil’s writing all the more compelling.

Here’s a talk on the subject she gave at the Personal Democracy Forum:

 

Spotify’s Latest Premium: 50% Back Means 50% Less

Spotify Capital One

Spotify is using its music service to help Capital One sell indebtedness.  And by the look of the campaign, Spotify is helping Capital One try to make debt groovy for millennials.  That would be the millennials who probably owe tens if not hundreds of thousands of dollars for the college diploma they admire when they get back to their micro apartment from a long day of baristaing.

Yet if Capital One tried to make the same deal with any single artist for this kind of premium tie-in, the artists could likely block it.  Why?  Most record deals give the artist a “marketing restriction” that looks something like this:

Label will not use Masters made under this agreement in premium Records to promote the sale of any product or service other than Records.  The restriction set forth in this subparagraph shall apply during and after the Term.

This prohibition is usually absolute and is generally an easy give by the label in a new artist negotiation.  That’s why you don’t see too many premiums out there in the market place.

But–Spotify breaks the loophole mold again.  Not only do they associate music with a credit card (something that some artists will object to, particularly progressives who may not look too kindly on banks–see Consumer Financial Protection Bureau) but Spotify also takes the next step–using music as a loss leader to promote credit cards.

Capital One gets to have their music industry tie in by having all the music for a premium.  And Spotify probably got a branding fee that they do not share will the artists in return.

On top of it all–Spotify diminishes the value of music by using the 50% discount–that’s right 50%–as a loss leader for both Spotify’s subscription service (aka the valuable part of the Spotify service) and for Capital One to sell more indebtedness to fans.

Even if Capital One is in fact paying full rate and just discounting to its card holders, which I seriously doubt, the campaign itself devalues and disrespects music by treating us as a commodity that can be bartered for a fee.

That’s why the marketing restriction on premiums in the first place.  So Spotify is doing indirectly that which they probably never could do directly.  So what’s in their wallet?

when you learn how much youre worth

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