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Songwriter Class Action Update

March 2, 2016

Yesh sued Google in the Southern District of New York yesterday (against Google Play Music and YouTube Red:

Yesh v Google

The claims are failing to license, either directly or by observing the rule for a compulsory license.

The Yesh cases are of interest for a couple of reasons.  First of all, to my knowledge, Tunecore does not permit artists to audit their Tunecore royalty statements for the sound recordings licensed.  (If I’m wrong about that, please show me the audit language in the Tunecore license as I can’t find it.)

If Google had complied with the requirements to be permitted to rely on the compulsory license, the U.S. government has consistently failed to provide songwriters with an audit right under Section 115, near the top of the list of insults heaped on songwriters by the U.S. government.  So in a weird way, songwriters are actually better off suing these services as they will never get the kind of confirmation available in a traditional audit any other way.

An interesting side note–while I’ve never read a confirmation that Tunecore got stock from any of these services, it seems clear that there must be some songwriter out there who should have been accounted to under the “Total Content Cost” calculation for streaming mechanicals by now.  One of the problems with the “TCC” calculation is that it’s virtually impossible for any songwriter to know whether the TCC calculation is being made and if not, why not.  There’s an easy fix to that which is for the Copyright Office to publish all TCC calculations (or an explanation for why the calculation was not made) in the Federal Register as they would any other statutory mechanical royalty rate.

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