You Can’t Find What You Don’t Look For: Spotify, Google, Pandora Can’t Find Aerosmith’s Steven Tyler and Joe Perry–but what about Martha Stewart

In another odd twist in the 60,000,000-plus “mass NOI” debacle, a five second search of the SX Works NOI Lookup database reveals that Spotify, Google, Pandora and other services can’t seem to locate Aerosmith songwriters like Steven Tyler and Joe Perry, not to mention their co-writers like long-time Bryan Adams collaborator Jim Vallence.  [Aside from that absurd result, the SX Works database is handy for revealing what certainly appear to be potentially bootleg releases for which a compulsory license cannot be obtained anyway.]


If you’re not familiar with the “mass NOI” problem, here’s the explanation in a nutshell:  two factors collide to create massive confusion.  Due to what has now become a major loophole in the 1976 Copyright Act, if a song copyright owner is not identifiable in the public records of the Copyright Office, then a user like Spotify can serve a notice (“NOI”) on the Copyright Office notifying the world that Spotify intends to use the song in reliance on the statutory (sometimes called “compulsory”) license under the Copyright Act.  (Any songwriter is likely to have received their share of the millions upon millions of these NOIs sent to song owners by MRI, HFA and other agents acting for the services.)

Sending notices to the Copyright Office was something of a backwater operation for the decades after 1976 up until April 2016.  At that time the Copyright Office began accepting millions upon millions of these NOIs from services claiming they could not find the copyright owner.  By serving the NOI on the Copyright Office the service claimed a vaild compulsory license meaning they could not be sued for unlicensed uses.  Because no one at the Copyright Office examined the NOIs to see if they were properly filed, all of the tens of millions of NOIs were blindly accepted.  (If you want to drill down on the details, you can read an article on the subject I wrote that was published in the American Bar Association Entertainment & Sports Lawyer.)

The common reaction to the collision of these factors is one of sympathy for the Copyright Office.  We are told that the Copyright Office lacks the resources to review each of the millions upon millions of NOIs.  I understand that–but the proper reaction in that situation is not to let these companies get away with it–the proper reaction is to shut down the mass NOI filing and tell Congress to do something about it.  I know that Members of Congress were aware of the problem and did nothing about it, although somehow some people seem to think that the Music Modernization Act is the answer to the problem.

It’s not–it sweeps it under the rug.  But which notices are being swept under the rug, exactly?  Let’s take Aerosmith’s Sweet Emotion as an example.  Many music users have filed these “address unknown” mass NOIs on Sweet Emotion.  Remember–the loophole allows a royalty free compulsory license if the copyright owner cannot be located “in the registration or other public records of the Copyright Office.”  (17 USC 115(b)(1).)  It doesn’t matter if the music user seeking the compulsory license could easily find the owner in the PRO databases or has actual knowledge (such as is frequently the case with Google’s much ballyhooed Content ID or MRI’s Songdex)–what matters under the Copyright Act is if the Copyright Office has the information.

So here’s the “addres unknown” NOI filings on Sweet Emotion:

Sweet Emotion

These filers attest that they have looked for the copyright owner in the Copyright Office public records as required in the filing instructions:

In the case where the Notice will be filed with the Copyright Office pursuant to paragraph (f)(3) of this section, the Notice shall include an affirmative statement that with respect to the nondramatic musical work named in the Notice of Intention, the registration records or other public records of the Copyright Office have been searched and found not to identify the name and address of the copyright owner of such work.

This language is fixed in the template for each NOI served on the Copyright Office.

So you might not expect to find this Copyright Office public record on Sweet Emotion:

Sweet Emotion CO Catalog

So it seems pretty clear that Sweet Emotion does not qualify for an address unknown NOI and it also appears that the attestation in that “address unknown” NOI is false.  It’s also pretty likely that the music users are actually paying royalties under voluntary licenses that cover the Aerosmith titles.  They are also likely paying under the performance rights licenses to the Aerosmith PRO.  If that’s true, money isn’t the issue.  So if it’s not that they care about paying the royalty, then why are these users filing “address unknown” NOIs on titles for which they are highly likely to know the song owner’s address, making the filing false.

You’d have to ask the services why they would want to have a voluntary license–which has a term that expires–and a compulsory license–that is essentially perpetual and will continue on past the expiration of the voluntary license.  There is an assumption that voluntary licenses will be renewed, but of course if you have a side-by-side compulsory license there’s no incentive for the user to renew the voluntary license when they could just rely on the compulsory and let the voluntary license expire.  And avoid paying those nasty minimum guarantees.  Particularly if the controversial Music Modernization Act is passed into law because all those mass NOI “address unknown” filing will be automatically swept into the MMA’s automatic blanket license.

Of course if anyone bothered to check any of these mass NOIs–this means you, Copyright Office–they would have found a fly in the ointment.  Or maybe millions of flies.

And what is even more interesting is that it is highly likely that somebody at the services knows their company’s attestation is false (perhaps hundreds of thousands or even millions of attestations).  Which leads us to Martha Stewart.

If you recall, one of the transgressions that got Martha Stewart some time in stir was making false statements to agents of the federal government.  The particular statute that Ms. Stewart violated was 18 U.S.C. Sec. 1001 which states:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—

(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch [such as the Copyright Office, part of the Library of Congress]; or

(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.