Five–Make that Six–Gains We Made in 2015: The Good News is the Bad News is Wrong
Despite the singular lack of successful legislation in the U.S. Congress (or much of anywhere else for that matter), the news was not all bad this year. Not by a long shot. The good news has a common theme for the most part: Artists, a taste making radio programmer and in one case a publisher breaking away from the pack and standing up for their rights and their human dignity. For the most part, artists said there’s something bigger than just my rights or my income at stake and we will be silenced no longer. These were superstars and middle class artists alike, sometimes singly and sometimes in the movement (#irespectmusic), but always with a unique voice.
Because the legislative route is blocked off by the likes of Google, Pandora and the MIC Coalition, and because the Federal Trade Commission (that shining bureaucracy on a hill and a beacon of impartiality in a world gone mad) has developed a sudden interest in all things Spotify, options were limited. A lot of what we were able to accomplish this year happened in the courts or the court of public opinion.
Here’s a brief recap of a few of the compelling victories or events that I think contributed to the cause.
1. Artists Challenge the New Boss: Zoë Keating Takes on the Google Spin Machine: Once again, Zoë Keating provided a voice for artists rights and led by personal example. In her compelling viral blog post, “What Should I Do About YouTube,” Zoë described a recent encounter with the demands of Google’s YouTube the definitive “new boss” monopoly video service:
I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs (I’m sorry, that was low, but that story was so funny).
Google’s treatment of Zoë is surely not limited to Zoë–it’s probably exactly what Google is doing to tens of thousands of artists. We all owe her thanks for setting an example.
2. Radio Isn’t Monolithic: Music Director Karoline Kramer-Gould Supports Radio Royalties and #irespectmusic: The National Association of Broadcasters and its member stations have done a pretty good job of keeping radio station employees in line on paying artist royalties for broadcasting music. If radio employees weren’t afraid of getting blacklisted before the MIC Coalition was formed, you have to believe they’re even more scared after.
Thankfully, Music Director Karoline Kramer-Gould joined with Blake Morgan to write an open letter to Representative Bob Goodlatte, Chair of the House Judiciary Committee, supporting the Fair Play Fair Pay Act authored by Rep. Jerry Nadler and Rep. Marsha Blackburn that would establish an artist royalty for terrestrial broadcast radio among other important things. Karoline also did an inspiring interview with me for the Huffington Post.
3. Protecting Pre-72 Artists: Flo & Eddie vs. Sirius XM and Pandora: Flo & Eddie (aka Mark Volman and Howard Kaylan pka The Turtles) and their courageous legal team of Henry Gradstein and Harvey Geller brought a class action that was so successful, the major labels finally decided that they needed to get into the act, too. The principle at issue was closing the “Pandora loophole” that Pandora and SiriusXM both used to screw artists who recorded prior to 1972 out of digital performance royalties. Naturally, Pandora and Sirius have both settled with the major labels leaving the indies and individual artists to fend for themselves. Which is OK because that’s how we got here.
4A. Ending the Whackamole Absurdity: BMG v. Cox: BMG Rights Management and Round Hill Music sued Cox Communications for copyright infringement. Despite what must have been an excruciating embarrassment for Cox as a never ending number of emails established its culpability, Cox thought it would get away with it by asserting a right to the safe harbor protection of the DMCA. Judge Liam O’Grady ruled that as a matter of law, bullshit is actually bullshit…no, sorry, he ruled that Cox had failed to satisfy the knowledge predicate and “clean hands” requirement of the safe harbor defense as well as a legally cognizable repeat infringer policy, so no safe harbor for Cox. What makes the BMG case even more savory is that the judge refused to permit Google Shill Listers EFF and Public Knowledge from filing amicus briefs in the case. This further established the maxim of jurisprudence that bullshit is bullshit…sorry, as Judge O’Grady put it:
“I read the brief. It adds absolutely nothing helpful at all. It is a combination of describing the horrors that one endures from losing the internet for any length of time,” O’Grady reportedly told the hearing (quote via TechDirt), as he denied the motion to file.
“Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.”
The elephant in the room of course is Google, which given the mind-numbing number of take down notices Google receives for search and YouTube (which will likely top 1 billion notices this year alone), it seems inconceivable that Google is not far worse than Cox. Not to mention that the emails that were disclosed in the Viacom v. YouTube case were generally of the same ilk as the Cox emails. We all know that notice and shakedown is the cornerstone of YouTube’s business. Which was probably the reason why YouTubers developed a severe case of exploding laptops and vanishing emails suggesting the presence of some super-mold that should have required an inspection of the Googolplex by Cal-OSHA. Maybe Viacom should have hung in there after all.
4B. Ending the Whackamole: Kim Dotcom Ruled Extraditable back to Judge O’Grady’s Court: When Kim Dotcom was arrested a few years ago in New Zealand, I was asked in a television interview whether I was surprised. I said no, I wasn’t surprised. This, of course, did not fit the narrative, so the reporter asked me why, to which I replied that when you get down on your knees and beg to be arrested, don’t be surprised if you are.
As luck would have it, the criminal case against Kim Dotcom was assigned (randomly) to U.S. District Judge Liam O’Grady (who later would be assigned the BMG v. Cox lawsuit).
Not to be cynical–Lord knows–but when you start adding up all the hourly billing that the Megavideo defendants are racking up over the last four years, you have to wonder where that money is coming from. Ah yes, from China, of course. Nothing to see here.
Not that anyone else might be interested in slowing this case waaaayyyy doooowwwwn. Oh look, Megavideo had ad publisher deals with two Sequoia companies, not to mention Lessig buddies and Creative Commons backers at PartyGaming. What a coincidence. Somebody might look into how Adsense was distributing inventory to Megaclick.
5. Artists Take on the New Boss: Taylor Swift: Taylor Swift demonstrated how artists can make a difference in standing up to the New Boss when she decided to keep her record off of the Spotify service. Then she brought Apple Music around to the right decision on paying royalties for their trial period with just one tweet.
6. David Lowery’s Class Action Against New Boss Spotify: In breaking news, Ed Christman is reporting in Billboard that David Lowery is spearheading a class action against Spotify for failing to properly license and pay songwriter royalties:
The lawsuit comes amidst ongoing settlement negotiations between Spotify and the National Music Publishers Assn. over the alleged use of allowing users to play music that hasn’t been properly licensed, and also without making mechanical royalty payments to music publishers and songwriters. According to sources, Spotify has created a $17 million to $25 million reserve fund to pay royalties for pending and unmatched song use.
MTP readers will recall that David complained to the New York Attorney General of Spotify’s failure to license properly , but I’ve not read of any answer from the AG. Ah, well. Must have been busy or something, holidays and all. You don’t suppose the AG’s response got delayed by politics or anything, do ya?