Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested….”And why am I under arrest?” he then asked. “That’s something we’re not allowed to tell you. Go into your room and wait there. Proceedings are underway and you’ll learn about everything all in good time….”
From The Trial, by Franz Kafka.
Right on cue, one Google Shill after another is floating the idea that the U.S. Department of Justice should appeal their latest oopsie to the Second Circuit. Talk about ungrateful–Judge Stanton, the BMI Rate Court judge was also the judge in Viacom v. YouTube and the accompanying artist-oriented class action against Google. In the YouTube case, Judge Stanton ruled for YouTube. Back then he was hailed by Google Shills everywhere as a great jurist, the peoples’ judge and hero of the disruptive class, because he poked a finger in the eye of bourgeois artists.
Talk about your sore losers–Judge Stanton went from #hero to #goat in record time as CCIA’s Matt Schruers told Bloomberg:
Matthew Schruers, vice president of law and policy at the Computer and Communications Industry Association [CCIA], which represents technology companies like Pandora and Google, said he expects the department to appeal the decision.
“Today’s decision will increase uncertainty for music licensees and threatens to complicate an already opaque licensing landscape,” he said in an e-mail.
The CCIA is an OS–Original Shill, which is of course what they get paid to be.
As is Public Knowledge, who we heard from next:
Here’s a press release from the Chief Gloater at Google Shill Lister Public Knowledge, which can be summed up in the well-known edict from Miniature, IGNORANCE IS STRENGTH:
The following be attributed to Raza Panjwani, Policy Counsel at Public Knowledge:
“We are deeply disappointed by Judge Stanton’s summary dismissal of the Department of Justice’s carefully-considered interpretation of the BMI consent decree. The plain language of the consent decree, BMI’s statements to the DOJ, BMI’s marketing language about its licenses, and appellate precedent all support the DOJ’s interpretation. Fractional licensing threatens to deprive the public of access to music by undermining a licensing marketplace that generates over a billion dollars in revenue annually for BMI alone, and which hundreds of thousands of business and outlets rely on to use and play music. This decision introduces uncertainty for users, opens the door to anticompetitive behavior, and should be appealed and reversed.”
Good thing they never asked a songwriter what they thought. Because if this fake problem actually exists, it’s existed for decades–which, as every songwriter knows, it hasn’t.
And then of course, there’s the MIC Coalition which is how all this got started from the way I read the tea leaves.
The MIC Coalition is the supergroup of astroturf, a bottomless pit of money and venom built around Pandora, Google, Clear Channel (aka iHeart), the National Association of Broadcasters, and some other smarminess:
CCIA is a member of the MIC Coalition, as you can see.
Never heard of the MIC Coalition? You only think you haven’t, which is astroturf done right. If you attended SXSW this year (or last year) you may have attended a panel moderated by the long-time Washington lobbyist Maura Corbett pushing the astroturf Berklee-ICE “transparency for thee but not for me” proposals from one Panos Panay and wondered to yourself–who is that person and why is she here? Lobbyist for the MIC Coalition, silly. Naturally she disclosed that…no, wait, she didn’t. I know, I sat through the entire panel (Unlocking the Future of Music with Transparency)–the only transparency on that panel was from Alex Ebert (Magnetic Zeros) who pretty clearly was not in on it.
So the MIC Coaltion has an interesting website–they seem to be a major client…sorry…outlet…for Public Knowledge’s recent work product attacking the Copyright Office. That website has this post about the BMI ruling:
MIC Coalition Urges DOJ to Appeal Judge’s BMI Consent Decree Decision
The MIC Coalition released the following statement in response to Judge Stanton’s recent declaratory judgment in the BMI consent decree case:
“Judge Stanton’s abrupt judgment hurts music lovers across America. By overturning DOJ’s correct and necessary affirmation that the BMI consent decree requires full-work licensing, this ruling undermines the decades-old efficiencies provided by the BMI license, ignores the consent decree’s explicit requirement—affirmed by the Supreme Court—that it indemnify the public performance of works in the BMI repertoire, and turns a blind eye to BMI’s own contracts and statements that make unambiguously clear they have, and continue to, recognize the consent decree’s longstanding requirement to license works in their entirety. All of this, while robbing both the Justice Department and interested parties of their due process, since this declaratory ruling was issued off-the-cuff at a pre-motion conference.
“If left to stand, this decision eviscerates the entire purpose of the BMI blanket license, hurting every restaurant, bar, hotel, winery, local broadcaster, digital music service, retailer and other venue that plays music. This judgment does nothing short of create the exact kind of anti-competitive music marketplace our antitrust laws guard against, causing immeasurable harm to these local establishments and services, their many millions of customers, and to the songwriters and musicians to whom their royalty dollars are paid.
“The mission of the Antitrust Division is to promote economic competition. The DOJ staff took this important responsibility seriously, and should vigorously defend their work of more than two years to fully investigate, listen to all parties, and then take appropriate action under the antitrust laws. We urge DOJ to expeditiously appeal.”
Judge Stanton was “robbing the Justice Department and interested parties of their due process”. Really? Funny, that’s just what the songwriters are suing the DOJ about.
“The DOJ staff took this important responsibility seriously”. Really? Here’s what they took seriously:
So once again–Google and Pandora are behind yet another blatant attack on songwriters. What’s different this time is that songwriters are fighting back, thanks to Songwriters of North America and songwriters Michelle Lewis, Thomas Kelly and Pamela Sheyne who are suing the Department of Justice, Attorney General Loretta Lynch and the acting head of the Antitrust Division Renata B. Hesse.
Google and Pandora are doing what multinational corporations always do in litigation–they bring out their shills to talk to the press about an issue that neither the press nor the shills really have any visceral understanding, but which is absolutely clear to songwriters.
Mr. Kafka kind of summed it up:
They’re talking about things of which they don’t have the slightest understanding, anyway.
Franz Kafka, The Trial
YouTube Censors “YouTube Star” Who Google Invited to Interview European Commission President — Artist Rights Watch
Reuters reports that European Commission President Jean-Claude Juncker gave a series of live interviews on YouTube last Thursday to young social media celebrities, including French vlogger Laetitia Birbes who said that “YouTube’s idea was to do in Europe what they’re already doing in the U.S. with President Barack Obama.” But Birbes got an hidden camera recording of a YouTube employee threatening her career on YouTube if she asked tough questions–and Reuters left out the fact that the EC has three open multi-billion Euro antitrust investigations against Google. That’s three more than the U.S. has.
Original Sin and Obama’s Missed Opportunity: What’s Next for the ASCAP and BMI Consent Decrees? — Music Tech Solutions
For the moment, songwriters are in a holding pattern but with the wind at their backs. I’m still looking forward to an explanation of why Google, Pandora, Clear Channel and a host of other giant multinational corporations with hundreds if not thousands of lobbyists need the awesome power of the U.S. Government to protect them from…songwriters.
Details to follow, but the BMI rate court judge ruled against the Department of Justice on 100% licensing. Here’s the important part of the ruling:
Nothing in the Consent Decree gives support to the Division’s views.
That’s what I call the ontological definition of losing. You know…gloating is so unbecoming but sometimes it’s really hard not to.
Here’s the BMI press release:
BMI PREVAILS OVER DOJ IN CONSENT DECREE DISPUTENEW YORK – September 16, 2016 — Today, federal Judge Louis Stanton issued an order rejecting the US Department of Justice’s (DOJ) recent interpretation of the BMI consent decree, and concluded that BMI is free to engage in the fractional licensing of musical works. This decision immediately followed oral arguments heard today from both parties. Judge Stanton’s ruling is now the controlling interpretation of the BMI consent decree, and a copy can be found HERE.Below is a statement from BMI President & CEO Mike O’Neill on today’s decision:“As we have said from the very beginning, we believed our consent decree allowed for the decades-long practice of fractional licensing and today we are gratified that Judge Stanton confirmed that belief. Our mission has always been to protect the interests of our songwriters, composers and publishers, and we feel we have done just that. Today’s decision is a victory for the entire music community.”
“This is terrific news for all of us in the songwriting community as we continue to work on modernizing the consent decrees to reflect the real world.”
More to come, but here is a copy of the complaint in the Songwriters of North America, Michelle Lewis, Thomas Kelly and Pamela Sheyne case against the Department of Justice, Attorney General Loretta Lynch and former Google lawyer Renata Hesse asking for declaratory relief on the DOJ’s violation of songwriter Constitutional rights with 100% licensing ruling.
For more background, listen to the MTP Podcast with Michelle Lewis, Kay Hanley, David Lowery and Chris Castle. Kay and Michelle talk about many of the events that are described in the complaint.
Also read Chris’s post “How Google Took Over the Justice Department: Renata Hesse’s Timeline” and David and Chris interviewed by Portia Sabin on the Future of What?
On Tuesday, [Michelle Lewis, Kay Hanley] and Songwriters of North America, an advocacy group she helped found a year ago, sued the Justice Department, saying that the agency overstepped its authority and that its ruling violated the property rights of songwriters by potentially nullifying private contracts between writers who have worked on the same song. The suit is the latest step in an extensive campaign by the music industry to fight the ruling, but it is the first organized response by songwriters.
The recent ruling by the U.S. Department of Justice in United States v. Broadcast Music, Inc. and United States v. American Society of Composers, Authors and Publishers has left many songwriters, publishers, motion picture and television producers and, yes, even lawyers scratching their heads to understand the import of the ruling. Not to mention Texas Governor Greg Abbott who has written to Attorney General Loretta Lynch asking her to reconsider the DOJ ruling.
The authors have summarized the ruling in the chart that follows. The thing speaks for itself.
As you will see, the left hand column lists the various roles of a music creator (starting with “Songwriter”) or music user. The rows describe some of the potential combinations of co-writers who will run afoul of the DOJ’s ruling. The chart is followed by a list of descriptions of what rule will apply to your situation.
If you find yourself in the left hand column, scan across the rows to see if you fit in any of the co-writer positions. Then look for which note applies to you in the list of notes below the chart.
For example, if you are an ASCAP songwriter who has co-written with a BMI songwriter (1st box in column and 6th row across), Note E applies to you.
This chart is based on the authors’ interpretations of the DOJ’s statement and is not dispositive or based on a court ruling as there has been none as of this writing. Obviously, this is not meant as legal advice and you should not rely on it. This is a complex area that has gotten even more complex, and you should consult with your own lawyers.
For further background, listen to the MTP podcast with Steve Winogradsky, David Lowery and Chris Castle and read Steve’s book Music Publishing–the Complete Guide. And essential reading on the issue is that evergreen resource for legal research on takings and other government behavior in the digital age, The Trial, by Franz Kafka.
By popular demand, download a copy of this post with the chart here.
|100% ASCAP or 100% BMI (single writer or all co-writers belong to the same PRO)||100% SESAC and/or GMR
(single writer or all co-writers belong to one of these PROs)
|100% Foreign PRO/ASCAP Collects in US||100% Foreign PRO/BMI Collects in US||Co-write
ASCAP & BMI
|Co-write ASCAP or BMI with Other U.S. PRO||Co-write foreign writers, where 1 is represented in the U.S. by either ASCAP or BMI and the 2nd is represented by a different PRO|
|Songwriter||Note A, below||Note B, below||Note A, below||Note A, below||Note E, below||Note E, below||Note E, below|
|Publisher||Note A, below||Note B, below||Note A, below||Note A, below||Note F, below||Note F, below||Note F, below|
|TV Producer||Note C, below||Note B, below.||Note C, below||Note C, below||Note G, below||Note G, below||Note G, below|
|Film Producer||Note C, below||Note D, below||Note C, below||Note C, below||Note G, below||Note G, below||Note G, below|
|Webcaster||Note A, below||Note B, below||Note A, below||Note A, below||Note G, below||Note G, below||Note G, below|
|TV Broadcaster||Note A, below||Note B, below||Note A, below||Note A, below||Note H, below||Note H, below||Note H, below|
|Radio broadcaster (terrestrial or satellite)||Note A, below||Note B, below||Note A, below||Note A, below||Note I, below||Note I, below||Note I, below|
|Interactive Streaming (Subpart B&C)||Note A, below||Note B, below||Note A, below||Note A, below||Note J, below||Note J, below||Note J, below|
A. All songs may be licensed under either ASCAP or BMI’s blanket licenses
B. All songs may be licensed under both SESAC and GMR’s blanket licenses
C. Obtain synchronization licenses from each party for their respective shares, as is current custom and practice. All songs may be licensed under either ASCAP or BMI’s blanket licenses
D. Obtain synchronization licenses from each party for their respective shares, as is current custom and practice. All songs may be licensed under both SESAC and GMR’s blanket licenses
E. Songs may not be licensed under a blanket license from ASCAP or BMI unless the co-writers agree to have only one PRO administer a particular song, which may require restructuring their co-writer agreement and PROs setting up a structure for paying non-member writers. Depending on their songwriter/publisher agreements, writers could issue direct licenses to users upon request and collect performance royalties directly
F. Songs may not be licensed under a blanket license unless the co-publishers agree to have only one PRO administer a particular song, which may require restructuring their co-publishing agreement and PROs setting up a structure for paying non-member writers & publishers. Publishers could issue direct licenses to users upon request (which might include the writer’s share) and collect performance royalties directly
G. Obtain synchronization licenses from each party, as is current custom and practice. Songs may not be licensed under a blanket license unless the co-publishers agree to have only one PRO administer a particular song, which may require restructuring their co-publishing agreement. TV, film or webcaster producer could request directly performance licenses and pay parties directly. If no direct licenses are available and songs are not covered under the blanket license, producer may not include songs in their productions.
H. Songs may not be licensed under a blanket license unless the co-publishers agree to have only one PRO administer a particular song, which may require restructuring their co-publishing agreement. Broadcaster can either require TV & film producers to obtain direct licenses or broadcaster can obtain them directly from publishers (which would include the writer’s share of royalties. If no direct licenses are available and songs are not covered under the blanket license, producer may not include songs in their productions.
I. Songs may not be licensed under a blanket license unless the co-publishers agree to have only one PRO administer a particular song, which may require restructuring their co-publishing agreement. Broadcaster can obtain direct licenses from publishers (which would include the writer’s share of royalties). If no direct licenses are available and songs are not covered under the blanket license, broadcaster may not include these songs in their broadcasts.
J. Songs may not be licensed under a blanket license unless the co-publishers agree to have only one PRO administer a particular song, which may require restructuring their co-publishing agreement. Streaming service can obtain direct licenses from publishers (which would include the writer’s share of royalties). If no direct licenses are available and songs are not covered under the blanket license, broadcaster may not include these songs in their streaming service.