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Archive for November, 2018

The Ethical Pool Future: Will Fans Cut the Cord to Big Streaming Services if Artists Leave?

November 30, 2018 Comments off

Everybody knows that the boat is leaking
Everybody knows that the captain lied…

From Everybody Knows by Leonard Cohen

I wrote up my take on “user-centric royalties” a few weeks ago in a post titled “Arithmetic on The Internet: The Ethical Pool Solution to Streaming Royalty Allocation.”  The post has been widely read in the artist community and stimulated conversation about the current model of royalty allocation by streaming services that artists like Sharky Laguana have led the debate on.  I argue that the current model results in the hyper-efficient market share distribution of streaming revenues that effectively bypass the independent artists who fans listen to on the subscription streaming services.

Hyper-efficient marketshare distributions can have unintended pernicious effects due to the impact on the per-stream rate.  If you have a big market share, you don’t care much about per-stream rates because you get minimum guarantees and probably non-recoupable “technology fees” that help protect your downside and defray your accounting costs.  (Particularly important to independent labels whose streaming accounting costs may exceed streaming revenue.)  If you are an independent or “niche” artist, the per-stream rate is everything because you won’t be getting advances or technology payments.

Crucially, that hyper-efficient distribution almost guarantees to a mathematical certainty that per-stream rates will decline over time if service revenue fails to increase at a rate that exceeds the increase in the total number of streamed recordings.  The Trichordist has documented that the per-stream rate has declined by 16% over the 2014-16 period–which happened at the same time as we are told that streaming accounts for over 50% of industry-wide recorded music revenues.  If streaming revenue declines on a per-stream basis while expanding to a larger share of over-all recorded music revenues, the negative effects on the per-stream rate will almost inevitably hurt independent artists, as well as genres like instrumental jazz and classical.

As we found in a recent reader poll, many fans–even many MTP readers–are unaware that an overwhelming share of their streaming service subscription revenue is paid for music they didn’t listen to (and performed by artists they don’t care for in some cases).  Assuming that MTP readers may be more aware of these inequities than the average fan, many if not most consumers may be in the dark about where their money actually goes, which may have an effect their buying decisions and a ripple effect through the market.

question 1

question 2

There’s little doubt that the status quo is unsustainable even though the transition from high to low-or-no margin goods may be irreversible.  Recently, Canadian artist and producer Danny Michel wrote a must-read op-ed for the current edition of the Vancouver Weekly that highlights the motivation behind the Ethical Pool.  Titled “The Expiration Date on Music”, Danny describes his own experience, which of course is echoed by a chorus of independent artists and songwriters around the world:

I’ve been a full-time musician for 25 years. It’s been nothing but hard work, but I love hard work. My songs bought my home, my studio, paid the bills and more. Through it all, the conversations backstage with other musicians have always been about music, family, guitars, friends, art, etc… But in 2018 that conversation changed. Everywhere I go musicians are quietly talking about one thing: how to survive. And I’ve never worried about it myself UNTIL 2018. What I can tell you is my album sales have held steady for the last decade until dropping by 95% this year due to music streaming services.

And therein lies the rub:  You cannot trade a high margin sale at a wholesale price of $5-$10 for a replacement with a wholesale price of a fraction of a fraction of a penny without an unrealistic corresponding exponential boost in activity.

The math is stacked.

Based on the Trichordist’s Streaming Price Bible, it takes roughly 1,600 streams on Spotify, 950 streams on Apple Music, or over 10,000 on YouTube to replace one physical or digital album that sells at a venue or retailer with $7 of net revenue to the artist.  (This revenue variation across services is one reason the TEA math doesn’t really work.)   Venue sales are incremental revenue–you’re already spending to market the show.  Due to streaming, venue sales have all but evaporated in the last few years at an increasing rate as Danny Michel observes.

The fan at the show is in direct contact with the artist in real time when the fan comes to a show the artist is already promoting.   If the fan leaves the show empty handed, it will probably be difficult to get that fan to remember to stream the new artist when they launch their service player.

Getting fans to stream the record usually requires additional effort if not expense–a key reason why it’s important at the show to get that fan’s email at least or some other way to get in touch with them outside of the music service.  As one astute independent label put it, “if the devil made me choose between selling 25 CDs at a show or getting 25 fans to sign up to an artist’s email list, I’d have to think about it for 5 minutes.”  The email signups are a hope for future revenue to make up a shortfall that will likely never be made up on streaming.

Absent getting that fan’s email, independent artists are largely at the mercy of playlist gatekeepers to the point that many are asking if they really want to continue to participate in the major streaming services.  As long as those services have little interest in allowing subscription rates to increase or pay royalties at a level that allow independent or niche genre artists and songwriters to sustain themselves, there’s less and less reason to participate.  And hyper-efficient market share distributions are already causing some artists to like cutting the cord with big services–the only question is how to get their core fans to follow them.

 

Artist Rights Watch COUNTDOWN TO MODERNITY (11/23): Key Dates and Accomplishments for the Mechanical Licensing Collective Under the Music Modernization Act

November 23, 2018 Comments off

As best we can tell from the outside looking in, this chart has the dates for key events in the critical path to launch for the Mechanical Licensing Collective as required by the Music Modernization Act.  We have called the chart the “Countdown to Modernity.”

Recall that the Register of Copyrights gets to pick the entity to operate as the Mechanical Licensing Collective. The Tennessean reported last week that the first fully-formed candidate to emerge is the American Music Licensing Collective or the “AMLC”.  (AMLC’s website is songrights.net.)  Digital Music New reports AMLC’s public statements about its organization:

“We believe all song owners, from the kid in their bedroom, to the major music publishers, should be paid what they have earned,” the group declares in its manifesto.

“We are songwriters, artists, music publishers, musicians, composers and technologists.  We get song owners paid.”

So who’s behind the American Music Licensing Collective, exactly?

We’ll start with one of the founders: Stewart Copeland, best known as the drummer for The Police.  Also on the creative side is hit songwriter Rick Carnes, whose songs have propelled more than 40 platinum albums from the likes of Garth Brooks, Reba McEntire, Alabama, Pam Tillis, and Dean Martin.

Other founding members include:

  • John Barker (founder, president & CEO of ClearBox Rights, LLC).
  • Brownlee Ferguson (founder, Bluewater Music).
  • George Howard (co-founder of both Music Audience Exchange and TuneCore and CIO of Riptide Publishing).
  • Lisa Klein Moberly (founder and president of Optic Noise).
  • Benji Rogers (singer-songwriter, founder of PledgeMusic and co-founder of dotBlockchain Media)
  • Jeff Price (founder of Audiam and co-founder of TuneCore)
  • Henry Gradstein (music industry attorney at Gradstein & Marzano, P.C.)
  • Larry Mestel (founder, Primary Wave)
  • Ricardo Ordoñez (founder and president of Union Music Group)

Listed as ‘observers’ are Grammy-nominated songwriter and producer Phil Galdston, and Grammy- and Emmy-nominated songwriter and producer David Wolfert.

“The board of directors of the AMLC have a profound and extensive knowledge of music publishing, mechanical license administration, big data, mapping and matching technology, payment processing, copyright ownership identification, conflict resolution, education, law, songwriting, architecture of technology systems and more,” the group notes.

Within days, Digital Music News also reported that two AMLC board members have left the organization for reasons that their source says were “directly tied to threats”:

Separately, a source close to the AMLC claimed that the departures were directly tied to threats by major publishers, with the National Music Publishers’ Association (NMPA) and at least one highly-influential publishing executive cited….AMLC cofounder Jeff Price confirmed to DMN that threats had been issued, but declined to name names.  Price, who cofounded TuneCore and more recently founded Audiam, remains a board member of the AMLC but noted that he has “received threats that I recuse myself from the board or suffer repercussions to my career.”

Beyond that, Price was uncertain if other board members had received similar threats, but strongly suggested the possibility.  “If there is a coordinated effort, and a colluded [sic] or orchestrated effort occurring to remove people from the AMLC, the question is why?”

“Is there something with the core mission statement they want to change? Otherwise what could it possibly be?”

The appearance of multiple candidates for the yet to be designated MLC raises another question–what about any existing black box?  MTP and ARW readers will recall that the MLC is allowed to invade the black box to cover certain administrative costs:

INTERIM APPLICATION OF ACCRUED ROYALTIES.—In the event that the administrative assessment, together with any funding from voluntary contributions…is inadequate to cover current collective total costs, the collective, with approval of its board of directors, may apply unclaimed accrued royalties on an interim basis to defray such costs, subject to future reimbursement of such royalties from future collections of the assessment.

Digital Music News also focuses on this issue:

According to the MMA’s language, mechanical licenses that remain unclaimed after just one year will be largely mopped up by major publishers according to marketshare, an arrangement that has drawn protest.  The value of the initial unclaimed tranche of funds has been estimated to be as high as $1.5 billion, at least according to a report by Variety.

We’re not big believers in this $1.5 billion number and it’s not exactly right that Variety reported that number–the Variety story has changed several times and is still a bit murky.   Due to a later update to the article concerned it’s a bit unclear exactly what Variety meant in the original unsourced reporting.  The original story as reported in Artist Rights Watch stated the industry-wide black box was $1.5 billion:

The DSPs are holding some $1.5 billion in unmatched mechanical royalties. If the MMA passes, that money would be passed through to the MLC which would match it to the songwriters and publishers.

Variety subsequently changed that language in the story at least twice that we know of, but never actually retracted the $1.5 billion number as far as we can tell, although they may have depending on your point of view of what constitutes a “retraction”.  In any event, the story now reads:

The DSPs are holding millions in unmatched mechanical royalties — the sum of all Notice of Intent (NOI) filings currently parked at the U.S. Copyright office, while unknown, is climbing. If the MMA passes, that money would be passed through to the MLC which would match it to the songwriters and publishers.

Note–there’s still no source for either the “$1.5 billion” or the “millions” or for the “update”.

Soooo…

If there’s only one MLC when the deadline passes to file papers for Copyright Office designation, then any accrued but unpaid black box–whatever the number–could be paid through to the MLC, even before it’s really up and running with a completely stood up database for matching.  It’s also theoretically possible–although very unlikely and not proven by any means–that the black box could have been paid through already in anticipation of there being only one MLC candidate.

Of course, if there’s more than one candidate, then any payment of black box for the past should be put on hold until the candidate is actually designated, particularly since the government took away copyright owners’ rights to statutory damages and attorneys fees if the copyright owner hasn’t filed their lawsuit as of January 1, 2018.  (Black box accrual = unlicensed infringing use = admission of infringement.)

Soooo….you just gotta love you some MMA.

The following chart is a work in progress, and if anyone sees anything wrong in it or something that should be clarified or corrected, please let us know.  It should be considered a draft, but we hope that it will solidify over the next few weeks.  We expect activity to pick up once the MLC filing deadline arrives.

Due to the formation of the AMLC, there are now two candidates for the MLC, there may be more coming.  The COUNTDOWN TO MODERNITY chart needs to distinguish AMLC from the competing NMPA/NSAI MLC which does not have a name as far as we know.  Until the NMPA/NSAI collective adopts a name, we will refer to it as the NMPA/NSAI collective.

The main takeaway from this chart should be the clock is ticking and time is going by.  Our prediction?  Time will become the MLC’s biggest enemy, if there isn’t already a time bomb in the drafting of the Music Modernization Act.  What we don’t see in the MMA is any discussion of what happens if a deadline is blown for whatever reason.

But mark your calendars–we see the first key date as January 7, 2019 when the Copyright Office will request filings from MLC candidates, which so far include the AMLC and the collective to be formed by NMPA/NSAI.  That’s 45 days from now and holidays count.  The countdown to the License Availability Date: 770 days from now.

ARTIST RIGHTS WATCH
COUNTDOWN TO MECHANICAL LICENSING COLLECTIVE LAUNCH
WEEK 6

KEY DATES SCHEDULE FROM ENACTMENT DATE (10/11/18)

TO LICENSE AVAILABILITY DATE (1/1/21)

EVENT ACCCOMPLISHED WHO OWNS? TIME EXPIRED   BEFORE LAD TIME REMAINS TO LAD
REQUEST FILING TO BE MLC STATUS UNKNOWN—Deadline  1/9/2019 COPYRIGHT OFFICE 90 DAYS AFTER ENACTMENT 726 DAYS FROM DEADLINE
DESIGNATION OF MLC STATUS UNKNOWN—Deadline  7/8/2019 COPYRIGHT OFFICE 270 DAYS AFTER ENACTMENT 545 DAYS FROM DEADLINE
FORMATION OF MLC NONPROFIT AMLC nonprofit formed

NMPA/NSAI STATUS UNKNOWN

MLC 45 days 726 days
SUBSTITUTION OF BLANKET LICENSE FOR ALL EXISTING COMPULSORY LICENSES AUTOMATIC 10/11/2018

 

COPYRIGHT OFFICE 770 days
MLC BUDGET STATUS UNKNOWN

(Assume deadline of 1/9/19)

MLC/DLC/CRJ 45 days 770 days
INITIATE ASSESSMENT PROCEEDING w/CRJs [MUST COMMENCE NO LATER THAN 7/8/2019]

STATUS UNKNOWN

MLC/DLC/CRJ 226 days 545 days
ASSESSMENT RULING [PUBLISHED IN FR NO LATER THAN 7/8/2020] MLC/DLC/CRJ 592 days 179 days
APPEAL OF ASSESSMENT RULING 30 DAYS AFTER PUBLICATION OF ASSESSMENT RULING MLC/DLC/CRJ/ DCCOA 623 days 149 days
MLC BUSINESS PLAN STATUS UNKNOWN

(Assume deadline of 1/8/19)

MLC/CO 45 DAYS 726 days
ANNOUNCED BOARD NOMINEES AMLC board announced (see DMN and above)

NMPA/NSAI called for nominations.

The deadline for NMPA nominations passed on November 15  see NMPA.  NSAI are accepting nominations for songwriter board member seats with a December 15 deadline.  (these are nonstatutory deadlines) Songwriter board selection by Steve Bogard (NSAI), Rick Carnes (SGA), Lynn Gillespie Chater (SGA), Dallas Davidson (BMI), Chris DeStefano (NSAI), Bob DiPiero (BMI), Dan Foliart (ASCAP), Adam Gorgoni (SONA), Michele Lewis (SONA), Paul Williams (ASCAP)

(Assume final deadline of 1/8/19)

MLC 45 DAYS 726 days
APPOINTED BOARD AMLC Board Announced (DMN reports Howard and Mestel depart):

John Barker (founder, president & CEO of ClearBox Rights, LLC).

Brownlee Ferguson (founder, Bluewater Music).

George Howard (co-founder of both Music Audience Exchange and TuneCore and CIO of Riptide Publishing).

Lisa Klein Moberly (founder and president of Optic Noise).

Benji Rogers (singer-songwriter, founder of PledgeMusic and co-founder of dotBlockchain Media)

Jeff Price (founder of Audiam and co-founder of TuneCore)

Henry Gradstein (music industry attorney at Gradstein & Marzano, P.C.)

Larry Mestel (founder, Primary Wave)

Ricardo Ordoñez (founder and president of Union Music Group)

NMPA/NSAI: STATUS UNKNOWN

(Assume deadline of 1/9/19)

MLC/CO 45 DAYS 726 days
APPOINTED DLC STATUS UNKNOWN—Deadline  7/8/2019 COPYRIGHT OFFICE 270 days AFTER ENACTMENT 545 days
ENGAGED  MLC VENDORS AMLC:  Clearbox Rights, Audiam (others?)

NMPA/NSAI: STATUS UNKNOWN

(Assume deadline of 1/9/19)

MLC 90 DAYS 726 days
PAID MLC VENDORS AMLC: See board members above

NMPA/NSAI: STATUS UNKNOWN (ASSUME 7/8/2020 IF NO APPEAL OF ASSESSMENT)

MLC 270 days 545 days
ANNOUNCE MLC DATA STANDARDS STATUS UNKNOWN MLC/DLC
REGULATIONS* STATUS UNKNOWN COPYRIGHT OFFICE
COMMENTS AND REPLY COMMENTS ON REGULATIONS STATUS UNKNOWN ALL
EXPLANATION OF OPERATIONS: HOW TO REGISTER WITH MLC AND COST OF REGISTRATION STATUS UNKNOWN

(Assume deadline of 1/9/19)

MLC/CO 90 DAYS 726 days
REGISTRATION START DATE STATUS UNKNOWN

 

MLC=Mechanical Licensing Collective

DLC=Digital Licensee Coordinator

CRJ=Copyright Royalty Judges

DCCOA=District of Columbia Circuit Court of Appeals

CO=Copyright Office

LAD=License Availability Date

*Topic areas to be updated as announced

Artist Rights Watch COUNTDOWN TO MODERNITY (11/16): Key Dates and Accomplishments for the Mechanical Licensing Collective Under the Music Modernization Act

November 16, 2018 Comments off

As best we can tell from the outside looking in, this chart has the dates for key events in the critical path to launch for the Mechanical Licensing Collective as required by the Music Modernization Act.  We have called the chart the “Countdown to Modernity.”

UPDATE:  Recall that the Register of Copyrights gets to pick the entity to operate as the Mechanical Licensing Collective.  According to Digital Music News, the first fully-formed candidate to emerge is the American Music Licensing Collective or the “AMLC”.  (AMLC’s website is songrights.net.)  Digital Music New reports AMLC’s public statements about its organization:

“We believe all song owners, from the kid in their bedroom, to the major music publishers, should be paid what they have earned,” the group declares in its manifesto.

“We are songwriters, artists, music publishers, musicians, composers and technologists.  We get song owners paid.”

So who’s behind the American Music Licensing Collective, exactly?

We’ll start with one of the founders: Stewart Copeland, best known as the drummer for The Police.  Also on the creative side is hit songwriter Rick Carnes, whose songs have propelled more than 40 platinum albums from the likes of Garth Brooks, Reba McEntire, Alabama, Pam Tillis, and Dean Martin.

Other founding members include:

  • John Barker (founder, president & CEO of ClearBox Rights, LLC).
  • Brownlee Ferguson (founder, Bluewater Music).
  • George Howard (co-founder of both Music Audience Exchange and TuneCore and CIO of Riptide Publishing).
  • Lisa Klein Moberly (founder and president of Optic Noise).
  • Benji Rogers (singer-songwriter, founder of PledgeMusic and co-founder of dotBlockchain Media)
  • Jeff Price (founder of Audiam and co-founder of TuneCore)
  • Henry Gradstein (music industry attorney at Gradstein & Marzano, P.C.)
  • Larry Mestel (founder, Primary Wave)
  • Ricardo Ordoñez (founder and president of Union Music Group)

Listed as ‘observers’ are Grammy-nominated songwriter and producer Phil Galdston, and Grammy- and Emmy-nominated songwriter and producer David Wolfert.

“The board of directors of the AMLC have a profound and extensive knowledge of music publishing, mechanical license administration, big data, mapping and matching technology, payment processing, copyright ownership identification, conflict resolution, education, law, songwriting, architecture of technology systems and more,” the group notes.

This chart is a work in progress, and if anyone sees anything wrong in it or something that should be clarified or corrected, please let us know.  It should be considered a draft, but we hope that it will solidify over the next few weeks.

Due to the formation of the AMLC, there are now two candidates for the MLC.  The COUNTDOWN TO MODERNITY chart needs to distinguish AMLC from the competing NMPA/NSAI MLC which does not have a name as far as we know.  Until the NMPA/NSAI collective adopts a name, we will refer to it as the NMPA/NSAI collective.

UPDATE:  Black Box Invasion!  MTP readers will recall that the MLC is allowed to invade the black box to cover certain administrative costs:

INTERIM APPLICATION OF ACCRUED ROYALTIES.—In the event that the administrative assessment, together with any funding from voluntary contributions…is inadequate to cover current collective total costs, the collective, with approval of its board of directors, may apply unclaimed accrued royalties on an interim basis to defray such costs, subject to future reimbursement of such royalties from future collections of the assessment.

The “black box” may have already begun accruing at all of the services, although the accrual will no doubt vary from one service to another.  However, what should be clear is that since there are now two candidates for the MLC, neither should be able to tap the black box prior to final designation of the MLC by the Copyright Office or otherwise.

The main takeaway from this chart should be the clock is ticking and time is going by.  Our prediction?  Time will become the MLC’s biggest enemy, if that hasn’t already happened in the drafting of the Music Modernization Act.  What we don’t see in the MMA is any discussion of what happens if a deadline is blown for whatever reason.

But mark your calendars–we see the first key date as January 7, 2019 when the Copyright Office will request filings from MLC candidates, which so far include the AMLC and the collective to be formed by NMPA/NSAI.  That’s 52 days from now and holidays count.  The countdown to the License Availability Date: 777.

ARTIST RIGHTS WATCH
COUNTDOWN TO MECHANICAL LICENSING COLLECTIVE LAUNCH
WEEK 5

KEY DATES SCHEDULE FROM ENACTMENT DATE (10/11/18)

TO LICENSE AVAILABILITY DATE (1/1/21)

EVENT ACCCOMPLISHED WHO OWNS? TIME EXPIRED   BEFORE LAD TIME REMAINING TO LAD
REQUEST FILING TO BE MLC STATUS UNKNOWN—Deadline  1/7/2019 COPYRIGHT OFFICE 90 DAYS 726 days
DESIGNATION OF MLC STATUS UNKNOWN—Deadline  7/7/2019 COPYRIGHT OFFICE 270 days 545 days
FORMATION OF MLC NONPROFIT AMLC nonprofit formed

NMPA/NSAI STATUS UNKNOWN

MLC 36 days 782 days
SUBSTITUTION OF BLANKET LICENSE FOR ALL EXISTING COMPULSORY LICENSES AUTOMATIC 10/11/2018

 

COPYRIGHT OFFICE 782 days
MLC BUDGET STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/DLC/CRJ 782 days
INITIATE ASSESSMENT PROCEEDING w/CRJs [MUST COMMENCE NO LATER THAN 7/7/2019]

STATUS UNKNOWN

MLC/DLC/CRJ 233 days 545 days
ASSESSMENT RULING [PUBLISHED IN FR NO LATER THAN 7/7/2020] MLC/DLC/CRJ 599 days 179 days
APPEAL OF ASSESSMENT RULING 30 DAYS AFTER PUBLICATION OF ASSESSMENT RULING MLC/DLC/CRJ/ DCCOA 667 days 149 days
MLC BUSINESS PLAN STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
ANNOUNCED BOARD NOMINEES AMLC board announced (see DMN and above)

NMPA/NSAI called for nominations.

The deadline for NMPA nominations passed on November 15  see NMPA.  NSAI are accepting nominations for songwriter board member seats with a December 15 deadline.  (these are nonstatutory deadlines) Songwriter board selection by Steve Bogard (NSAI), Rick Carnes (SGA), Lynn Gillespie Chater (SGA), Dallas Davidson (BMI), Chris DeStefano (NSAI), Bob DiPiero (BMI), Dan Foliart (ASCAP), Adam Gorgoni (SONA), Michele Lewis (SONA), Paul Williams (ASCAP)

(Assume final deadline of 1/7/19)

MLC 90 DAYS 726 days
APPOINTED BOARD AMLC Board Announced:

John Barker (founder, president & CEO of ClearBox Rights, LLC).

Brownlee Ferguson (founder, Bluewater Music).

George Howard (co-founder of both Music Audience Exchange and TuneCore and CIO of Riptide Publishing).

Lisa Klein Moberly (founder and president of Optic Noise).

Benji Rogers (singer-songwriter, founder of PledgeMusic and co-founder of dotBlockchain Media)

Jeff Price (founder of Audiam and co-founder of TuneCore)

Henry Gradstein (music industry attorney at Gradstein & Marzano, P.C.)

Larry Mestel (founder, Primary Wave)

Ricardo Ordoñez (founder and president of Union Music Group)

NMPA/NSAI: STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
APPOINTED DLC STATUS UNKNOWN—Deadline  7/7/2019 COPYRIGHT OFFICE 270 days 545 days
ENGAGED  MLC VENDORS AMLC:  Clearbox Rights, Audiam (others)

NMPA/NSAI: STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC 90 DAYS 726 days
PAID MLC VENDORS AMLC: See board members above

NMPA/NSAI: STATUS UNKNOWN (ASSUME 7/7/2020 IF NO APPEAL OF ASSESSMENT)

MLC 270 days 545 days
ANNOUNCE MLC DATA STANDARDS STATUS UNKNOWN MLC/DLC
REGULATIONS* STATUS UNKNOWN COPYRIGHT OFFICE
COMMENTS AND REPLY COMMENTS ON REGULATIONS STATUS UNKNOWN ALL
EXPLANATION OF OPERATIONS: HOW TO REGISTER WITH MLC AND COST OF REGISTRATION STATUS UNKNOWN

(Assume deadline of 1/7/19)

MLC/CO 90 DAYS 726 days
REGISTRATION START DATE STATUS UNKNOWN

 

MLC=Mechanical Licensing Collective

DLC=Digital Licensee Coordinator

CRJ=Copyright Royalty Judges

DCCOA=District of Columbia Circuit Court of Appeals

CO=Copyright Office

LAD=License Availability Date

*Topic areas to be updated as announced

Wendy! Wendy! Peter’s Off His Meds Again! CEO Madness Sets in At Facebook

November 16, 2018 Comments off

Emporer zuck

According to a team of long-time tech reporters in the New York Times (see Delay, Deny and Deflect: How Facebook’s Leaders Fought Through Crisis):

[Apple CEO Tim] Cook’s criticisms [of Facebook’s well known intrusive data harvesting for its addiction machine] infuriated Mr. Zuckerberg [aka the boy who wouldn’t grow up], who later ordered his management team to use only Android phones — arguing that the operating system had far more users than Apple’s.

True, except Android sucks and scrapes worse than Friendster.  I mean, Facebook.

Some people refer to the music business as being run by the same five crazy uncles–but truth, they don’t hold a candle to the FANGsters.

But Sheryl Sandberg’s performance in the role of Wendy Darling is getting a bit hard to watch as Peter Pan self destructs on the way to his own version of Casa Neverland.  But Zuck has that special stock that gives him 10 votes for every share (copied by Daniel Ek, by the way) so unless he wants to step down, Zuck ain’t going nowhere no matter how crazy his crazy gets.

zuck in moscow

Well…maybe there is a limit to crazy.  No koolaide for Facebookers.

The TAZ, Pirate Utopias and YouTube’s Obsession with Safe Harbors

November 15, 2018 Comments off

“[A]s you begin to act in harmony with nature the Law garottes & strangles you – so don’t play the blessed liberal middleclass martyr – accept the fact that you’re a criminal & be prepared to act like one.”

Hakim Bey from “T.A.Z.: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism”

YouTube’s CEO Susan Wojcicki is frantically wheeling around Europe this week in a despairing effort to establish a US-style safe harbor in Europe and undermine Article 13, the Copyright Directive for a Digital Single Market.

Let’s understand that the very concept of a safe harbor for YouTube has its roots deep in the pirate utopias of Internet culture–a fact that may get overlooked if you aren’t a student of the Silicon Valley groundwater.

The Value Gap really owes its origins to the anarchist Peter Lamborn Wilson who wrote the seminal text on pirate utopias under the nom de plume “Hakim Bey” entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism” (1991) or, as it is known perhaps affectionately in hacker circles, simply “TAZ.”  I for one am not quite sure what makes “poetic terrorism” different from unpoetic terrorism, utopian terrorism, anarchic terrorism, or just plain old terrorism, but it may explain why YouTube just can’t bring itself to block terrorist videos before they find an audience.

But the TAZ helps illuminate my own more truncated term for the Value Gap–the alibi. An alibi for a pirate utopia where the pirates run cults called Google and enrich themselves from the prizes they go a-raiding.

In the early days of online piracy there was a fascination with locating servers in some legal meta-dimension that would be outside of the reach of any law enforcement agency. Sealand, for example, captured the imagination of many proto-pirates, but Sealand is a little to clever to put themselves in a position requiring evacuation by the Royal Navy before the shelling begins.  So Sealand was ruled out.

Instead, Google–largely through YouTube–created its own pirate utopia through manipulation of the DMCA safe harbor, one of the worst bills ever passed by the U.S. Congress–and that’s saying something.  Google busily set about establishing legal precedents that would shore up the moat around their precious TAZ.  None of Google’s attacks on government should be surprising–anarchy is in their DNA.  As former Obama White House aide and Internet savant Susan Crawford tells us:

I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it.  We could avoid it.  These people were irrelevant.

And “these people” were stupid enough to give a safe harbor to protect the TAZ.  Because here’s the truth–the safe harbor that has made Google one of the richest companies in the world while they hoover up the world’s culture actually is the quintessential temporary autonomous zone.  It only exists in a changeable statute and the judicial interpretations of that statute, whether the DMCA or the Copyright Directive.  And like HAL in 2001: A Space Odyssey, they’re not going to allow that disconnection without a fight.

But YouTube’s CEO Susan Wojcicki will not be singing “A Bicycle Built for Two” as she flails about in the disconnect of YouTube.  Her basic argument is that “imposing copyright liability is destructive of value” for “open platforms” like YouTube.  “Open platforms” bear a striking resemblance to the TAZ, yes?  Ms. Wojcicki , of course, purveys a counterintuitive fantasy because unauthorized uses for which copyright liability accrues is what destroys the value of the infringed work.  What Ms. Wojcicki is harping about is how copyright infringement destroys value for YouTube and its multinational corporate parent, Google.  This is what happens when stock options invade a pirate utopia.

Not only has she got it wrong, but what she is actually whingeing about is the threat posed to her YouTube pirate utopia by the Copyright Directive and the united creative community.  And as HAL might say, the YouTube mission is too important for me to allow you artists to jeopardize it.

 

What’s the Agenda at @TheAgenda?

November 13, 2018 Comments off

Google’s European charm offensive on “Article 13” has come to Canada in search of earned media.  They got it last night on a previously-credible news show called The Agenda in the “Struggling Artists and Copyright Rules” episode.  (For readers outside of Canada, the Agenda is one of the top news magazine television programs in Canada, hosted by the erudite Steve Paikin.)

Both Canada and the European Union are going through very different copyright reform policy revisions which could not be more different, but The Agenda was determined to hold up Big Tech’s objections to the European Copyright Directive as some kind of example for the Canadian review of its 2012 Copyright Modernization Act which is being conducted largely in the normal course as required by statute.  

By contrast, the Copyright Directive for the Single Digital Market (often called “Article 13”) bears little resemblance to the Canadian review.

If you watched The Agenda last night with the EFF’s Cory Doctorow, the Canadian science fiction author, and Canadian artists Miranda Mulholland and Donald Quan, you really would not have much of an idea.  

I’ve actually appeared on The Agenda and was very impressed with the amount of objective preparation the show’s producers put in and the thoroughness with which they approached the subject.  This kind of staff work is critical to preserving Steve Paikin’s credibility and how he conducts interviews with multiple persons, sometimes phoning in from out of the studio.

Given my experience with the program, I was quite taken aback by the sloppiness of the questioning that verged on propaganda from multinational corporations at several moments despite Miranda and Donald’s best efforts.  What I saw was the complete opposite of my own experience.  Here’s a few examples, more to come.

—Julia Reda represents Germany in the European Parliament?  Let us be clear—Julia Reda may have a German constituency, but Julia Reda hardly “represents Germany” if the implication is—and I think it was—that Julia Reda’s views are representative of Germany as a whole.  She is the sole Member of the European Parliament from the Pirate Party and her views are not only very pirate, but were also voted down by substantial majorities.  

—the use of neuvoo.ca, which appears to be a crowd sourced job site as evidence of creator “annual income”.  I’ve quickly looked over the neuvoo site and can’t find the name of a live person attached to it, so we don’t really know much about it.  The site appears to be aggregating job postings from other sites (like Uber), so I’d really like to see the methodology.  Having said that, the neuvoo annual income numbers (like $61,798 for a writer compared to the Writers Union of Canada number of $9,380) seem greatly inflated and counterintuitive.  If there’s a good reason to believe a job aggregator as opposed to the union representing job categories, I’m all ears.  But the real question I have is why The Agenda didn’t use government statistics as the comparison, or at least mention some of the research work done by the industry or other countries or cities (such as the Austin Music Census).

—the failure by Steve Paikin to mention Cory Doctorow’s long time involvement with the Electronic Frontier Foundation.  The EFF lobbying group was not only disclosed by Google in court documents as a recipient of corporate donations but benefited to the tune of $1 million in a cy pres award that is of the type that is currently under review by the United States Supreme Court.  Google, of course, is on Julia Reda’s side of the Article 13 vote and is today lobbying the European Parliament against Article 13, making many of the same arguments as Cory Doctorow did on The Agenda.

We’ll be looking into this deeper, but it doesn’t take much of a cynic to question why Steve Paikin would allow his program to be coopted in the effort to oppose Article 13.  I for one don’t believe Mr. Paikin is that kind of guy, and I think that he’s very careful about being used.  I know he certainly was careful when I was on the show.

This leads one to the inescapable conclusion that either his producer was in the tank for Google or was incredibly sloppy.  Either conclusion is equally unfortunate.

We’ll come back to this soon.

Save the Date: Nov. 28 Music Modernization Act at the Dallas Bar Association

November 11, 2018 Comments off

If you’ll be in Dallas, Texas on November 28, I will be discussing the Music Modernization Act at a luncheon sponsored by the Dallas Bar Association Entertainment & Sports Law Section.  The meeting is scheduled for noon at the Belo Mansion,
2101 Ross Avenue in Dallas.

The talk will focus mostly on the Music Licensing Collective and Digital Licensee Coordinator in Title I, but will also cover the Wyden Loophole in Title II for pre-72 recordings.

More information on the Dallas Bar Association site.

Read Highlights of Managing Change Under the Music Modernization Act’s Music Licensing Collective in the current issue of the Texas Entertainment & Sports Law Section Journal.

 

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