Archive for May, 2017

Must Watch Talk By Artist @MiraMulholland on Redefining Success in the Digital Marketplace — Artist Rights Watch

May 31, 2017 Comments off

Canadian artist Miranda Mulholland articulated the common reality that we hear every day from artists around the world. Thankfully she gave her clear-eyed assessment of reality at the Economic Club of Canada–it would be great if we could get a comparable audience for artists around the world. Here’s an excerpt:

via Must Watch Talk By Artist @MirandaMulholland on Redefining Success in the Digital Marketplace — Artist Rights Watch

Spotify Settlement Points a Finger At Facebook

May 27, 2017 Comments off

More on this later, but Robert Levine is reporting in Billboard that the combined Lowery/Ferrick potential class actions have reached a $43.4 million settlement with Spotify (read the latest court document on the settlement here from Pacer).  The settlement still requires identifying a class which the documents define (at p. 3) as:

All persons or entities who own copyrights in one or more musical compositions (a) for which a certificate of registration has been issued or applied for on or before the Preliminary Approval Date; and (b) that was made available by Spotify for interactive streaming and/or limited downloads during the Class Period (December 28, 2012 through the Preliminary Approval Date) without a license. (my emphasis)

This definition leaves out anyone who hasn’t filed a copyright registration of their song, which is likely to include many ex-US songwriters who are not required to register in order to enjoy copyright protection, and indeed many US writers who haven’t gotten around to registering their works as of what appears to be a yet-to-be-defined “Preliminary Approval Date.”  So the clock is ticking for those who have yet to play the registration game.

It should also not be lost on anyone that the reference to the class certification includes compositions exploited by Spotify “without a license”.  This clause should more properly state “without a license issued by the copyright owner or for which a license has been served on the copyright owner directly and not served on the Copyright Office pursuant to 17 USC Sec. 115(b)(2).”  Why?

The proposed settlement’s registration requirement as drafted may also explain why Spotify has taken a sudden interest in serving “address unknown” NOIs on the Copyright Office in order to claim to have a faux statutory license.  Spotify may be trying to argue that anything in their mass NOI filing is not registered and that by filing the mass NOI they have a “license” under the Copyright Act.  It may be well to pay closer attention to the definition of “license” in the class settlement.  (See “Loopholeapalooza!  Spotify Files 247,112 Address Unknown NOIs”)

Spotify CO May 12

Spotify’s 72 NOI filings to date, each with multiple spreadsheets with hundreds of thousands of songs

It also excludes the publishers who signed up to the NMPA settlement (which I think was a $30 million settlement depending on how you count it), those who have reached their own settlements, and a few other categories that should not be controversial.  If memory serves, the NMPA settlement was thought to cover some 90% of the songs at issue.

It is well to remember that Spotify started out with licenses for a bunch of material and just fell down on their licensing rules in a rather expensive way for a company with $1 billion of debt.

Compare Spotify to Facebook.  Facebook has no licenses.  None. Zero. Zilch.  They know they have no licenses and they don’t seem to be in much of a hurry to solve this problem.  For all of Spotify’s problems, Facebook is not Spotify.  Facebook is a royalty deadbeat.

What the Spotify cases should tell Facebook is that Facebook should not expect to get a pass for their bad behavior.  Facebook should expect to write a very large check for the past and a very large check for the future.

How much?  Facebook’s Sheryl Sandberg has said that $500,000,000 is not a material sum for Facebook, so let’s start there.  That’s not a crazy number, either–Facebook has about 20 to 40 times the number of users than does Spotify (depending on which Spotify number you believe), so if anything $500,000,000 is cheap.  That payment should just about cover the past and then we can talk about the go forward.

What is different for Facebook than it was for YouTube or even Spotify is that independent artists and songwriters have found their collective voice and they are not scared by Emperor Zuck and his billions.

Emporer zuck

Google Founder Building World’s Largest “Air Yacht” At Taxpayer’s Iconic NASA Hangar

May 26, 2017 Comments off

The Guardian tells us:

Google co-founder Sergey Brin is building a hi-tech airship in Silicon Valley destined to be the largest aircraft in the world, according to multiple sources with knowledge of the project.

“It’s going to be massive on a grand scale,” said one, adding that the airship is likely to be nearly 200 meters long. This would make it by far the world’s largest aircraft today, albeit smaller than the epic Hindenburg Zeppelins of the 1930s, or the American navy airship USS Macon that was once based in the very same hangars where Brin’s aircraft is now taking shape.

The sources revealed details of the airship on the condition of anonymity, citing confidentiality agreements. Brin has revealed nothing of his airship ambitions and is building the airship in a giant hangar on a Nasa airfield far from the eyes of the public.

Brin wants the gargantuan airship, funded personally by the billionaire, to be able to deliver supplies and food on humanitarian missions to remote locations. However, it will also serve as a luxurious intercontinental “air yacht” for Brin’s friends and family. One source put the project’s price tag at $100m to $150m.

Google’s use of the Moffett Field hangar at below market rates was called out by Senator Grassley (now chair of the Senate Judiciary Committee) in 2012 at the height of the Obama/Google love fest:

The Honorable Charles F. Bolden, Jr.
National Aeronautics and Space Administration
Two Independence Square
300 E Street, SW
Washington, DC 20546

Dear Administrator Bolden:

I am writing you concerning Google Inc.’s (Google’s) partnership with the National Aeronautics and Space Administration (NASA) and its activities at Moffett Federal Airfield (Moffett Airfield) in Santa Clara County, California. My office recently received troubling allegations regarding the Google fleet of aircraft housed at Moffett Airfield.

via Google Founder Building World’s Largest “Air Yacht” At Taxpayer’s Iconic NASA Hangar — Artist Rights Watch

@KRSFOW: The Future of What Podcast on the Latest Department of Justice Attack on Songwriters

May 24, 2017 Comments off

In case you didn’t notice, the Trump Department of Justice is appealing the Obama Department of Justice loss in the 100% licensing ruling by Judge Stanton in the BMI Rate Court. Judge Stanton struck down the DOJ’s unfair and unlawful attack on songwriters.

This podcast by Portia Sabin on the Future of What was recorded before the appeal, but tells you all you need to know about what is at issue in the bizarre Department of Justice appeal. Except for the fact that after the podcast was recorded, Songwriters of North America sued the Department of Justice and ex-Googler Renata Hesse (the prime mover behind the Kafka-esque theory). For what? Unlawful behavior and unconstitutional taking of property without fair compensation.

The podcast was also recorded before Texas Governor Greg Abbott called on the then-Attorney General to reconsider the DOJ’s position and summed it up nicely:

“[D]espite claims to the contrary, BMI and ASCAP have never offered full-work licenses to fractionally owned songs, and the consent decrees have never been interpreted by the DOJ to require that until now. This drastic change in course will have severe consequences for music artists and the music industry as a whole.

Read the DOJ appeal brief here.

Read BMI Rate Court Judge Stanton’s ruling here.

Artist Rights Watch--News for the Artist Rights Advocacy Community

Another outstanding podcast from the Future of What with Kill Rock Stars! President Portia Sabin talking with David Lowery, Chris Castle and NMPA CEO David Israelite about the U.S. Justice Department’s flip flop on 100% licensing.

Find out what “100% licensing” means and what songwriters can do about it, plus a discussion of the implications for international songwriters and the future of reciprocal licensing by PROs outside the US.

Here’s a link to Chris Castle’s Huffington Post article mentioned in the podcast,  The Obama Administration Is Lame Ducking An Unworkable Burden on Songwriters: 4 Reasons Why It’s Bad Law; the MusicTechPolicy timeline on the Obama Administration’s songwriter czar Renata Hesse (mentioned by David Israelite) showing her curious connections to Google and the MIC Coalition: How Google Took Over the Justice Department Antitrust Division: Renata Hesse’s Timeline; BMI’s Premotion Letter to Judge Stanton re Obama Justice Department Ruling on 100%…

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Watch This Space: The #irespectmusic Podcast Coming Soon!

May 23, 2017 Comments off


Watch this space for the #irespectmusic podcast, hosted by Karoline Kramer Gould!  Listen to the trailer here!

Blake KKG Conyers

Blake Morgan, Karoline Kramer Gould, Rep. John Conyers

The MTP Podcast: The Consequences of DOJ’s New Rule on 100% Licensing with David Lowery, Steve Winogradsky and Chris Castle

May 23, 2017 Comments off

The Department of Justice–once again doing its best to crush small business–has appealed the BMI ruling (copy of DOJ appeal here).


Music Technology Policy

David Lowery, Steve Winogradsky and Chris Castle discuss the implications of the new rule by the U.S. Department of Justice re-interpreting the ASCAP and BMI consent decrees to require 100% licensing and prohibiting partial withdrawal.

David Lowery is the founder of Cracker and Camper van Beethoven, leading artist rights advocate and writer of The Trichordist blog, and teaches at the Terry School of Business at the University of Georgia at Athens.

Steve Winogradsky is a senior music lawyer and co-proprietor of the music services company Winogradsky/Sobel in Los Angeles.  Steve teaches at UCLA and Cal State Northridge and is the author of a leading legal handbook Music Publishing: The Complete Guide.

Chris Castle is founder of Christian L. Castle, Attorneys in Austin, Texas and edits the MusicTechPolicy blog.  He is formerly an adjunct professor at the University of Texas School of Law, and lectures at law schools, music schools…

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A Guide to the Department of Justice Ruling on “100% Licensing”

May 23, 2017 Comments off

To better understand the recent DOJ appeal of 100% licensing from the BMI rate court, we offer a repost of this article.  The Department of Justice–once again doing its best to crush small business–has appealed the BMI ruling (copy of DOJ appeal here).  Note that Brent Snyder, the DOJ lawyer who lead the brief, is a former partner at Google lawyers Perkins Coie in Seattle–yet another DOJ lawyer with ties to Google.

Music Technology Policy

By Steve Winogradsky and Chris Castle, all rights reserved.

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…

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