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Archive for May, 2018

Spotify Final Class Settlement

The court approved Spotify class action settlement is here, more to come.

 

Lessig & Co Miss the Point that Bait and Switch on MMA Will Burn Down the Cornfield

In case you’ve missed it, Lester Lawrence Lessig III is reprising his role as Copyright’s Biggest Loser with an op-ed in Wired about the mythical interpretation of the copyright term in the CLASSICS Act that has been taken apart by David Lowery and Neil Turkewitz.  Corey Doctorow (that well known pre-#metoo x-ray poster of minor redaction fame) also got it completely backwards as illustrated in David Newhoff’s excellent post.

It is the motivation that is most interesting about Lessig’s preening, the 40 members of the professoriate (that includes a liberal sprinkling of Google Academics) following each other right off the bandwagon and Doctorow’s whinging.   They all seem to believe that somehow there will still be a “Music Modernization Act” if the pre-72 fix in CLASSICS is stripped out.  Doctorow blames Senator Hatch, Lessig blames the usual suspects (the phantom Mickey Mouse, of course), and the IP professors are just proving that lawyers can’t do math–yet again.

For example, Doctorow tells us:

Back in March, the House passed the Music Modernization Act, a welcome bill made it easier for musicians to get paid reliably for digital streaming.

So that is quite a sentence–the bill actually passed the House “back” in April, April 25, 2018 to be precise.  So that’s wrong.  I gather that since he’s objecting to the only part of the bill (the former CLASSICS Act) that addresses “musicians”, he meant to say “songwriters.”  So that’s wrong, too.  And of course, the bill does a whole lot more that one would think would warm Doctorow’s heart (and hips, presumably), like get rid of statutory damages and attorneys fees to stop litigants like David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music.

Both Lessig and Doctorow seem to make the assumption that CLASSICS can be stripped out of both the Senate version and the House version of the bill.  (It seems to have escaped Doctorow that Senator Hatch actually introduced the House version in the Senate and that the bill he likes that passed the House includes the pre-72 fix in CLASSICS.)  And without getting into who is right or wrong in their interpretation of the effect on the copyright term of pre-72 sound recordings, there is one thing that is the clear motivation for all this effort by the professoriate and the Google spin machine.

They intend to pass the safe harbors in the Music Modernization Act and get rid of the pre-72 loophole fix.  And they think the we will all go along with that.

They are, as usual, NUTS.

Stark raving mad.  The kind of people who see Mickey Mouse under the bed and post pictures of their pelvis dedicated to a woman they are in a flame war with.  (Move over Harvey Weinstein.)

Let me say it clearly–if they try to do this, if Google sends its shills up to Capitol Hill in hopes of a bait and switch in the Senate, the entire package will fail and it will be class action city.  But stripping out the pre-72 fix for the bait and switch is clearly what they are up to.

While you think about that, have a listen to a pre-72 recording of my friend John Baldry singing the Randy Newman classic “Let’s Burn Down the Cornfield” produced by Elton John.

We can listen to it burn…

 

 

 

Now this is a cover MOFOs

@MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

Otis Redding sat on the dock of the bay in 1967. Roy Orbison sang for the lonely in 1960. Miles Davis was kind of blue in 1959. These artists’ iconic recordings live on today and are frequently played across streaming services, satellite radio, and FM radio. Tell Congress to make Big Tech pay its fair share.

via @MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

@Smokey_Robinson Gives Moving Defense of Artist Rights at @SenJudiciary Hearing on MMA

Smokey Robinson is one of the best witnesses for artist rights.  Mr. Robinson was on stage yesterday in the clinch at the Senate Judiciary Committee hearing on the Music Modernization Act, the new omnibus package that finally includes all of the pre-72 protections and closes that loophole for Big Tech.  (Read his written testimony here.)

The records of the 50’s and 60’s aren’t called “classics” because of their age. They’re called classics because of their greatness. They still resonate today. They add value to our lives and bring people together. They define America.

While Mr. Robinson’s written testimony was eloquent and inspiring, where he really showed his genius was in his ability to synthesize key issues and think on his feet in front of both the cameras and the U.S. Senate.

Watch this clip in which he corrected DiMA head Chris Harrison about a cavalier statement regarding “artists can always sue.”  This is what these people always say, and too often our Congress full of lawyers gets drawn into the “lawsuit as remedy” thinking–which most of the time is a dodge.  I’d even go so far as to say it’s laziness.

As Mr. Robinson pointed out so precisely, artists and songwriters can hardly ever sue because they can’t afford to hire a lawyer or even investigate their rights.  So if that’s the result–and a good justification for the copyright small claims court–that’s no remedy at all and results in an income transfer.  It’s called YouTube, Twitter, Facebook–the biggest income transfers of all time.

Fortunately, Texas Senator John Cornyn, a supporter of the pre-72 fix, gave Mr. Robinson a chance to hit it out of the park and he took it.  Smokey the Closer.

If there ever was a better defense of the need for statutory damages and attorneys fees (the “private attorney general” clause of the Copyright Act), I haven’t heard it.

And while no one said it at the hearing and taking nothing away from Mr. Robinson, it must be said that the only reason that this bill is where it is, the only reason that the pre-72 and mechanical licensing fixes are where they are, is because of Howard Kaylan & Mark Volman, David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music and the lawyers like Henry Gradstein (both Turtles and Ferrick class actions), Sanford Michaelman and Richard Busch.  And that’s the fact.

Careful What You Wish For: Are TIDAL, Beyoncé and Kanye getting smeared?

I know it’s shocking that anyone in the music business would try to juice the charts.  But sometimes there actually is a more innocent explanation for apparent conspiracy.

According to some press reports, about a year ago a Norwegian newspaper suddenly became interested in the credibility of the reported number of streams of two TIDAL exclusives, Lemonade and Life of Pablo.  (For the geographically challenged, Norway is next door to Sweden.)  Not sure why now, but this is not Spotify’s best week in the hip hop community.

If you recall, there was considerable hostility from Spotify about these two exclusives at the time, such as this contemporaneous comment on exclusives in The Verge from Jonathan Prince, the former Clintonista and current Spotify comms person:

“We’re not really in the business of paying for exclusives, because we think they’re bad for artists and they’re bad for fans,” Jonathan Prince, Spotify’s head of communications told me. “Artists want as many fans as possible to hear their music, and fans want to be able to hear whatever they’re excited about or interested in — exclusives get in the way of that for both sides. Of course, we understand that short promotional exclusives are common and we don’t have an absolute policy against them, but we definitely think the best practice for everybody is wide release.”

We are told in a pseudonymous post on Forbes.com:

Writers at Norwegian newspaper Dagens Næringsliv grew suspicious of the high streaming numbers – 250 million for The Life of Pablo in 10 days, and 306 million for Lemonade in 15 days – considering TIDAL’s claimed subscriber-base is only 3 million users.

What’s interesting about this particular growth of suspicion is that the time periods concerned either roughly or directly correspond to the Spotify-offending periods that TIDAL had the Beyoncé and Kanye tracks exclusively for its “claimed” subscriber base.  That’s right–subscriber base.  Because in addition to its evil exclusives, TIDAL also rejected Spotify’s beloved free tier in favor of a subscriber-only model.  Which was strike two.

But wait…there’s more.  Not only did the newspaper grow suspicious of this witchcraft, they were so suspicious they enlisted the help of others according to Forbes:

A year-long investigation, involving close collaborations with music research firm Midia and the Norwegian University of Science and Technology’s Center for Cyber and Information Security (CCIS), has allegedly validated the suspicions of inflated numbers.

Any editor who put reporters on a story as trivial…sorry…banal…sorry…unlikely as this one for a whole year must have had a very good reason to do so.  And the fact that the paper brought in a private consulting firm–which claims Spotify as a client–raises the question of who is paying for all this?   (Also claims Google as a client, another exclusive skeptic.)

So TIDAL stands accused of the crimes of success derived from exclusively releasing new tracks by two of the biggest artists in the world that were available–heinously–on a subscription service.  And perhaps a lesser included crime of tweaking the nose of the Saviour of the Music Business in the process.

Let’s say that TIDAL did juice the numbers a bit–does anyone really find the streaming count in the exclusive new release window to be that unusual for artists of the stature of Beyoncé and Kanye West?  I can understand why there may be a bit of regional pride for the Norwegians to come to the defense of their fellow Scandinavian, but are they sure they want to start looking too closely at streaming counts?

Here’s what Forbes tells us is irking them:

Since streaming rates correspond to royalty payments, TIDAL allegedly inflated the value of the impacted tracks “at the expense of other artists.” According to reports by TIDAL, the company paid Beyoncé’s label Sony $2.5 million for Lemonade and paid West’s label Universal €2 million for The Life of Pablo….If the accusations find enough grounding, it is possible that TIDAL executives could be sued for causes of action such as collusion and/or fraud. Illegal cooperation between parties, internal or external, to inflate streaming numbers and thus increase royalty payments for certain artists is clearly illegal and fraudulent. Although there is no precedent, if TIDAL is found to have manipulated numbers, then Sony and Universal would probably be required to pay back some funds plus a possible penalty, similar to a clawback.

In other words, TIDAL is accused of doing with real artists something similar to what Spotify was accused of doing with the “fake artist” controversy a la Epidemic Sound.

Well…”accused” might be bit strong given all the qualifications:  “If the accusations find enough grounding, it is possible that TIDAL executives could be sued for causes of action such as collusion and/or fraud. [Just sayin’…] Illegal cooperation between parties, internal or external, to inflate streaming numbers and thus increase royalty payments for certain artists is clearly illegal and fraudulent.”

One might say that could possibly maybe arguably likely be a kind of symmetrical karma of a sort, bae.  And it could kind of boomerang sort of maybe.

As Liz Pelly writes in her seminal “Secret Lives of Playlists“:

What are we looking at when we open Spotify? How did it get there, and on whose dime? Who owns visual real estate on Spotify? How do major labels control what the average Spotify listener is being fed? Who is shaping Spotify’s so-called “editorial voice”? Why is it so hard to tell which playlists are curated by humans and which are curated by algorithms? And how is the latter increasingly shaping the former?

I wonder if the Norwegians know what happens when you ask the authorities to start looking at all streaming playlists under a criminal microscope?

And now, back to sleep.

UPDATE:  Norwegian PRO has filed a police complaint against TIDAL.  I think it’s called discovery.

UPDATE 2:  According to HITS, Jonathan Prince is no longer at Spotify (fully-vested?):

…Prince no longer heads communications for the company—he now presents himself as a policy and strategy specialist there—he is said to remain close to boss Daniel Ek. In his time at Spotify, Prince is believed to have been the instigator of the Taylor Swift skirmishes, the defense of the so-called “fake artists” and the whispering campaign alleging that rights holders were colluding with Apple about diminishing the influence of Spotify’s free ad-supported tier.

HITS also notes that Prince “spearhead[ed] the New York mayoral campaign of Bill Thompson….”  Thompson endorsed the recently former New York Attorney General Eric “Raging Bulls***” Schneiderman, who just happened to open a state competition investigation into Apple Music when Apple launched its Spotify competitor and who failed to respond to David Lowery’s complaint about Spotify’s failure to pay songwriters.

 

 

 

@agraham999: ‘BIG DATA IS ABOUT TO BECOME A VERY BIG PROBLEM FOR THE MUSIC INDUSTRY.’ — Artist Rights Watch

One of the big pitches we have heard for years from digital services is how they can provide artists with data resources to connect with fans.  That is–everything except a meaningful way to connect with the fans that the artist isn’t already driving to the service in the first place.

Of course, the most laughable part of this pitch is that somehow knowing you’ve been streamed in Shoreditch, Tyler, Yellowknife and Brooklyn is going to be meaningful to a talent buyer, even if that talent buyer books in those towns.  Yet we frequently see journalists dutifully spout this received wisdom as if it meant something other than trying to gin up a reason to pay artists and songwriters a still lower royalty to offset the cost of rent at World Trade Center.

Alan Graham’s recent post in Music Business Worldwide has put his finger right on another problem that defies the conventional wisdom and Spotify narrative–big data ain’t all it’s cracked up to be and may be going the way of Cambridge Analytica.

Big data was a solution pitched and sold to the music industry as a panacea to fan engagement problems. While big data seems very attractive, using personal data and profiling fans may in fact turn out to be, like oil and plastics, already outdated and toxic….

In a 2014 New Yorker article, Spotify was keenly aware of the power of such data:

All this, Ek explained, will help Spotify to better program the “moments” of a user’s day. “We’re not in the music space—we’re in the moment space,” he told me. The idea is to use song analytics and user data to help both human and A.I. curators select the right songs for certain activities or moods, and build playlists for those moments. Playlists can be customized according to an individual user’s “taste profile.” You just broke up with your boyfriend, you’re in a bad mood, and Justin Timberlake’s “Cry Me a River,” from the “Better Off Without You” playlist, starts. Are you playing the music, or is the music playing you?

…In fact, when you agree to use Spotify, third-parties who install the Spotify widgets on their sites may also send data as to which page on what site you are visiting.

With this knowledge, just how comfortable are you knowing that Facebook is now contextualizing your private chat messages to suggest music on Spotify?

via @agraham999: ‘BIG DATA IS ABOUT TO BECOME A VERY BIG PROBLEM FOR THE MUSIC INDUSTRY.’ 

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