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PledgeMusic Winding Up Hearing July 31 in London

July 30, 2019 Comments off

Pledge Windup

It appears that PledgeMusic has not planned on going into administration (like reorganization bankruptcy), at least not since June 13, 2019.  Therefore, any statements the company or its representatives have made since that date must be looked at anew.

Because the company had guided all of its potential creditors toward administration, everyone was looking the wrong direction.  I only discovered this petition today by searching The Gazette, which is the official paper of record of the UK government and is used pretty much exclusively for legal notices.

I had not done so previously because I assumed, like everyone else, that Pledge was going into administration.  Because that was what they said they were doing.

But–something in the far recesses said, “Did you check The Gazette?”  “No.  Why would I, they are going into administration.”  Long pause.  “And how do you know that exactly?”  “They…said..so.”  “Well, smart boy, what if they…you know…lied.”  “Guess I better check.”  “Guess you better.”

And sure enough, there it was.

The company had been clearly guiding us to believe they were going into administration which would have given artists, fans and vendors at least a chance to be heard on the rather bizarre behavior by the company’s board and officers.  For example, Benji Rogers said that directly in a widely read Medium post under the apparent authority of the company (if you can just cut through the sanctimony):

Benji Statement

But a couple days ago Pledge took the pledgemusic.com site down (why is much clearer now) and posted this absurd message:

pledge statement

Now if you were thinking “the most appropriate steps” meant administration based on all the other communications from the company and from Benji Rogers on the company’s behalf, no one would fault you for thinking “the most appropriate next steps” meant filing reorganization/administration after weeks of delay–NOT liquidating the company.

And you certainly couldn’t be blamed for not realizing that “the most appropriate next steps” meant “we already filed for liquidation weeks ago suckers!”

UPDATE:  The trade group UK Music sent a representative to the Pledge winding up hearing in London according to MusicWeek:

UK Music attended the hearing at the Royal Courts of Justice today (July 31).

In a letter to Business Minister Kelly Tolhurst, Kiehl said: “Many musicians across the UK relied on crowdfunding website PledgeMusic to deliver payments from patrons, to pay for album recordings and other costs. The winding up of this company represents an entirely unsatisfactory development for the many music fans and creators who have invested so much into projects through this scheme.

“I ask you to again consider the merits of a ministerial referral to the Competition and Markets Authority to investigate what went wrong with this case.

He added: “I would also like to ask you to consider taking up the case with the Financial Conduct Authority, which holds responsibility for regulating certain types of crowdfunding, to consider the activities of PledgeMusic and whether there have been any regulatory breaches.

“Furthermore, I would like to ask for a meeting with you to consider further possible Government interventions to ensure the issues which have arisen from PledgeMusic can never happen again.”

You Go! Rep. @TulsiGabbard Sues Google For Manipulating Election

July 30, 2019 Comments off

According to USA Today:

On [July 25, 2019], member of Congress and Democratic presidential candidate Tulsi Gabbard launched a lawsuit against Google claiming “serious and continuing violations of Tulsi’s right to free speech” because of Google’s suspension of the Gabbard campaign’s advertising account during the first Democratic presidential debate.

The campaign asks for an immediate court injunction to stop further meddling from Google and payment of financial damages.

According to the lawsuit, filed by lawyers representing Gabbard’s campaign Tulsi Now Inc., Google suspended the Gabbard campaign’s advertising account for several hours during the first Democratic debate, when Gabbard was briefly the most-searched candidate on Google.

Read the complaint here.

MTP readers will recall that we first focused on Google’s ability to throw elections back in 2013  (See Now That’s What I Call Bundling!).  I actually started thinking about the issue even longer ago around 2010 when news leaked out of Google offering credit to pirate sites so they could buy keywords suggested by Google employees according to the sworn affidavit of the pirate site operator in the Easy Download Center case.

The point being that Google employees were only too happy to help pirates operate by manipulating search results through keywords.  And if they could do that, what else were they up to?  I naturally thought of throwing elections.

One of the big differences between 2010 and 2019 is the difference in how people react to these facts.  In either 2010 or 2013 very few people thought that Google could or would try to throw an election.  What prompted my 2013 post was a very believable and well constructed study  “Democracy at Risk: Manipulating Search Rankings Can Shift Voting Preferences Substantially Without Voter Awareness” by Dr. Robert Epstein and Dr. Ronald E.  Robertson of the American Institute for Behavioral Research and Technology.  The study focused on how Google could manipulate search results to manipulate public opinion.  My thought was that it was a big claim and however logical and believable it was based on anecdotal evidence, an actual academic study would provide the type of data that would be persuasive.  PBS Newshour interviewed Dr. Epstein:

 

Dr. Epstein also recently testified before the U.S. Senate hearing on Google and Censorship.

Not much has changed according to Rep. Tulsi Gabbard’s lawsuit:

In the June 26-27, 2019 Democratic Party presidential debates, tens of millions of Americans got to hear Tulsi Gabbard’s voice for the first time. And people liked what they heard: Gabbard quickly became the most searched-for Democratic presidential candidate on June 27-28. In the crucial post-debate period—a time when presidential candidates receive outsize interest, engagement, and donations—Americans around the country wanted to hear more from Tulsi Gabbard.

To speak to these Americans, Tulsi operated a Google Ads account (the “Account”). A Google Ads account allows a political candidate to speak directly to people who want to hear from her. For example, millions of people were searching for information on Tulsi Gabbard on June 27-28, 2019. Through Google Ads, Tulsi could instantaneously and directly speak to these people by linking them to her webpage, which provides information about Gabbard’s background, policies, and goals.  

Or at least that is how things are supposed to work on Google’s search platform—one of the largest forums for political speech in the entire world. In practice, however, Google plays favorites…

Google’s answer?  This was that bane of the IT world–a “glitch.”  Ah, yes.  Those pesky glitches!  It almost makes you think that Google search is not fit for purpose–but it seems far more likely that Google search is performing exactly how it’s supposed to work.  Not fit for purpose, just the purpose is not fit.

Think about it–Google frequently defends what I would call the “Pinto Gap”–Google’s business practice named after the notorious Ford Pinto model with the exploding gas tank.  Why the “Pinto Gap”?  Because one would have to believe that Google has determined, just like Ford, that the cost benefit of programming their search algorithm to perform in a certain way that profits Google more than doing the right thing.  Or at least the lawful thing.  One day we may find out if there is a “Pinto memo” at Google of the kind that took down Ford, but just like Ford, Google will have to be sued to find out, perhaps for products liability.  Or criminally prosecuted, because we’re way beyond Mrs. Palsgraf now.

But Google still relies on the glitch defense–maybe because they still think we’re all idiots.  USA Today quotes Google’s response:

In response, Google says “automated systems that flag unusual activity on all advertiser accounts — including large spending changes” were to blame for the suspension of Gabbard’s account. Google says their automated systems aim to “prevent fraud and protect our customers.”

“In this case, our system triggered a suspension and the account was reinstated shortly thereafter,” said Google spokeswoman Riva Sciuto. “We are proud to offer ad products that help campaigns connect directly with voters, and we do so without bias toward any party or political ideology.”

Of course.  If only she’d paid in rubles!  No one believes that glitch theory either after many investigations into how Google favors its own products in search results.  Why should Google’s outsized role in the Obama campaigns and the 2016 election–not to mention the Canadian General Election that brought their buddy Justin Trudeau to power and set the stage for Googleville (aka Sidewalk)–be any different?  Trust me, Google is only too happy for the attention to be focused on “The Russians” and Facebook–and not on them.  Until now.

soros at google

Eric and George, just two guys talking about stuff

As Professor Robert Epstein writes in Politico:

Research I have been directing in recent years suggests that Google, Inc., has amassed far more power to control elections—indeed, to control a wide variety of opinions and beliefs—than any company in history has ever had. Google’s search algorithm can easily shift the voting preferences of undecided voters by 20 percent or more—up to 80 percent in some demographic groups—with virtually no one knowing they are being manipulated, according to experiments I conducted recently with Ronald E. Robertson .

Or they could simply cut off a candidate’s Adwords account if she gets too popular and is not the anointed Google candidate.

 

 

 

I commend Rep. Gabbard’s complaint to you for further reading, but here’s a couple excerpts.  Remember, the point is that after the Democrat debates, Gabbard was the most searched for candidate on Google.  If you’re a skeptic like me, you’ll say that somebody noticed that right away and thought that Google had to put a stop to it.

For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline.

I would pick a bone with the lawyers on that sentence–it’s very unlikely that it was “arbitrary”.  Saying it was “arbitrary” seems to accept the “glitch” theory, which I don’t.  The Google search algorithm is the most valuable asset at Google.  The idea that it somehow wasn’t working and somehow wasn’t doing exactly what it was designed to do beggars belief.  So I would say don’t give them “arbitrary” for a single sentence.  Let them actually prove that–which will open up discovery on the algorithm to the extent it’s not open already.

[T]he Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.

In response, the Campaign got opacity and an inconsistent series of answers from Google. First, Google claimed that the Account was suspended because it somehow violated Google’s terms of service. (It didn’t.) Later, Google changed its story. Then it changed its story again. Eventually, after several hours of bizarre and conflicting explanations while the suspension dragged on, Google suddenly reversed course completely and reinstated the Account. To this day, Google has not provided a straight answer—let alone a credible one—as to why Tulsi’s political speech was silenced right precisely when millions of people wanted to hear from her.

But in context, the explanation for Google’s suspension of the Account at exactly the wrong time is no great mystery: Google (or someone at Google) didn’t want Americans to hear Tulsi Gabbard’s speech, so it silenced her. This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn’t like, and amplifies voices it does….

Google’s arbitrary and capricious treatment of Gabbard’s campaign should raise concerns for policymakers everywhere about the company’s ability to use its dominance to impact political discourse, in a way that interferes with the upcoming 2020 presidential election.

Now listen up because this is important:  If it weren’t for Rep. Gabbard fighting back nobody would even know it happened.  And if they’ll do it to a presidential candidate, they will definitely do it to you.  This one is live, real, and is not going away.  This isn’t a question of money, and hopefully she won’t let them buy their way out of it.  That’s how we got here.

You go!

 

 

The Curious Timing of “Spotify Untold” the Corporate Bio Book

July 25, 2019 Comments off

You may have seen the book reviews of “Spotify Untold” (or in Swedish ““Spotify Inifrån”).  The book is currently only available in Swedish, but in a new marketing twist the authors are on a book tour in the US.  Must be nice.

The writers seemed to have missed the streaming gentrification part, which is of great consequence to artists and songwriters–but those groups are pretty clearly not their audience.

If their interview with Variety is any indicator, the story line of “Spotify Untold” revolves around (1) music is a commodity (with no discussion of Spotify’s role in the commoditization of what is now openly called “streaming friendly music” not unlike “radio friendly” music–both equally loathed by artists whose name does not begin with “Justin”; and (2) Daniel Ek is a heroic genius (despite the resemblance to Damian in his teen pictures they are also handing out–he thankfully shaves his head).

But most importantly (3) Ek was pursued by Steve Jobs, the evil giant whose company he just happens to have filed a competition complaint against who was aided by the equally evil Sony and Universal as they were all in on it to keep our hero from entering the fabled land of Wall Street.  Yes, a yarn straight out of Norse mythology; perhaps a little too much so.

Or the book is a corporatized version of Joseph Campbell’s hero’s journey from The Hero With A Thousand Faces aka Star Wars).  You can plug Daniel Ek into the hero’s role pretty easily:
campbell heros journey

As reported in Variety:

Barely a page into the book “Spotify Untold,” Swedish authors Jonas Leijonhufvud (pictured at left) and Sven Carlsson paint an odd scene. The year is 2010 and Spotify co-founder and CEO Daniel Ek [the hero] is facing a succession of obstacles [the Threshold Guardians] gaining entry into the U.S. market [the region of supernatural wonder] — or, more specifically, infiltrating the tightly-networked and often nepotistic to a fault music industry. [Unwelcoming of the stranger from Asgard, so unlike Silicon Valley.]  As stress sets in [Challenges and Temptations], Ek becomes convinced that Apple’s Steve Jobs is calling his phone just to breathe deeply on the other end of the line, he purportedly confesses to a colleague [a Helper].

There’s a saying, “don’t speak ill of the dead.”  That’s probably a bit superstitious for the authors, but is good advice.  It’s unbecoming and Spotify should denounce it.  There’s also a saying, “don’t mock the afflicted,” so before you laugh hysterically at the story, realize that Steve Jobs caring enough about Daniel Ek to do such a thing (which assumes Steve knew Daniel Ek existed) was something that was very important to Daniel Ek

One thing I can tell you is that the Steve legend (a competing hero’s journey myth–a real one) has some choice tales of voice mails.  None of them involved heavy breathing, and Variety reports that the authors were not able to confirm this rather insulting and perverse allegation.

What they do say is:

To us, Ek’s claim is as a reflection of how paranoid and anxious he must have felt in 2010, when Spotify was being denied access to the U.S. market, in large part due to pressure from Apple. The major record companies seem to have been quite loyal to the iTunes Music Store, and to Jobs personally….Because Spotify was hindered by Steve Jobs [it’s called competition], it forced the company to sweeten its deals with the record companies [also called competition]….Spotify is challenging Apple on a legal level right now. We address Spotify’s constant struggle with Apple in our book. If Ek were to talk about such sensitive topics in book form, [Spotify would] do it in their own way with full control.

The first thing I thought of when reading the story of “Spotify Untold” was that very competition claim that Spotify is pursuing in Europe right now and pursued with the Obama competition authorities a few years ago.  And then of course there was the New York state competition claim that came out the same time as Apple Music launched in the US apparently led by Spotify’s very own Clintonista who was a political ally of Eric Schneiderman the former (ahem) New York Attorney General.  While the authors claim that they spoke to many Spotify executives but not Ek, the book still has curious timing as does the disclaimer that the book is not connected to Spotify directly.

And if you believe as I do that Daniel Ek actually hates the major labels (read the Spotify DPO filing an you’ll get the idea), it’s only natural that he would try to twist Sony and Universal into the story.  He just didn’t know that his negotiation experience was garden variety stuff and not unusual in any way.  They didn’t get stock in iTunes so they damn well would in everything that came after iTunes.

I would be very curious to know why the authors came away from their research thinking that the major labels were “quite loyal” to iTunes and to Steve Jobs.  While that may have been true of certain executives, the reason that the labels required licensees to sell in Windows Media DRM (i.e., the format nobody wanted) was because they wanted to compete with iTunes.  Even after they dropped that failed idea, the labels large and small did not want a single retailer dominating the digital market.

It’s also possible that the book is an answer to “Spotify Teardown” that came out earlier this year with a much less mythological and much more recognizable approach to a Spotify reality according to an NPR review:

[“Spotify Teardown”] argues that Spotify isn’t a media company per se – and…asserts that it’s structurally much closer to a Facebook or Google, particularly in its digital business model.  Indeed, Spotify was never really so much a music company as an Internet brand. “Spotify’s business model never benefited all musicians in the same manner but rather appeared — and still appears — highly skewed toward major stars and record labels, establishing a winner-takes-all market familiar from the traditional media industries.”

You won’t find that in a corporate bio.  That sounds like the streaming gentrification reality and definitely wasn’t written by anyone named Justin.  So while I don’t know what motivated the “Spotify Untold” authors, I do think that there’s a definite whiff of Astroturf in a book that tells a story that fits almost perfectly with the hero’s journey that Spotify would like to be telling competition authorities.  I think the authors are aware of this, hence their disclaimers.

And I’m still waiting for the last leg of Daniel Ek’s hero’s arc, the transformation and atonement.  Which is the part that makes the hero a hero.  As the authors tell us, “[Spotify] would probably rather tell their story themselves than have us do it for them, but I think they understand our role as journalists.”

I just bet they do.

If you think this is paranoid, watch this video from Sharyl Attkisson.  Let’s just say I don’t put anything past these guys.

 

 

 

What’s the Current Status of PledgeMusic Case?

July 22, 2019 Comments off

 

What are the chances that PledgeMusic will just disappear into the night, never file bankruptcy and never pay back the artists, fans and vendors?  The less you talk about Pledge’s misdeeds, the more likely they simply are never pursued by anyone.

 

 

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A Look at Christopher Sprigman’s Recent Record

July 16, 2019 Comments off
Sprigman 1

Sprigman Throws a Definition at Blake Morgan

The Spitting Image of the Modern Major General

MTP readers may remember the name Christopher Sprigman.  Most recently,  we have identified him as a counsel to Spotify in the “Nashville cases” brought against his firm’s client Spotify by four plaintiffs represented by well-known and successful artist rights attorney Richard Busch.   These were cases brought against Spotify in Nashville for claims of copyright infringement by independent publishers who opted out of both the NMPA settlement and the Lowery & Ferrick class actions.  (Just to be clear, Lowery had nothing to do with the Nashville cases.)

Sprigman PHV

Professor Sprigman also teaches at the New York University law school in New York and evidently has an of counsel relationship with the distinguished New York law firm Simpson Thatcher.  According to his law firm biography:

“Chris is a tenured faculty member and Co-Director of the Engelberg Center on Innovation Law and Policy at New York University School of Law, where he teaches intellectual property law, antitrust law, competition policy and comparative constitutional law.”

Simpson Thatcher is one of those ultra white-shoe corporate law firms, a very conservative reputation and also highly respected around the world.

Sprigman Lowery

Pot, meet kettle

Professor Sprigman has a history in copyright circles dating back to at least 2002, i.e., before he worked on Simpson Thatcher client Spotify.  His selection to represent Spotify may be explained as simply as Professor Lessig was not available, but it’s more likely that his past work informed his selection as is usually the case.  Nothing wrong with that.

Some of Sprigman’s academic writings can be found on his SSRN author profile.  At least a few of these papers (that we know of)  were co-funded by Google.  That Google connection evidently is a topic of some sensitivity with Professor Sprigman as it was that point that seems to have prompted his unprovoked and public comparison of David Lowery to Alex Jones.

Blake Alex

Aside from the depressing reliability of the Alex Jones Corollary to Godwin’s Law, this was both a shocking yet curious comparison.   Why Alex Jones, of all people?  What about Alex Jones is of relevance to David’s role in the artist rights struggle?  I am of the view that it carried with it an implied threat–Sprigman could get his buddies in Big Tech to deplatform David just like Alex Jones.  Why?   My guess is that it is because Sprigman apparently wants you to believe that David’s message was just as toxic to Twitter.   (David was not even involved in the initial Sprigman exchange at all and tells me he had no idea it was even going on.  He was on the road with Cracker and Camper Van Beethoven, you know, selling T-shirts like a good boy.)

Sprigman Lowery 2

The non denial denial

It All Starts with the Disney Fetish

Professor Sprigman has a long-term connection to Professor Lessig, beginning with a 2002 article “The Mouse the Ate the Public Domain” supporting Lessig’s losing argument in Eldred v. Ashcroft attacking the 1998 Copyright Term Extension Act.  (“Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft.”  How very 1999.)

It will not be surprising to learn from the NYU alumni blog introducing Professor Sprigman that Lessig is his “mentor” (“Sprigman set a goal of writing an article within four months that he could take on the job market, if his mentor and the [Stanford Center for the Internet and Society]’s founder Lawrence Lessig deemed it satisfactory. The result was a paper that reintroduced the idea of formalities in copyright law. Its boldness won Lessig’s approval.”)  Ah, yes.  Fortune favors the “bold.”

A younger and perhaps bolder Sprigman held a 2003 fellowship at Stanford’s Center for the Internet and Society (founded by the very bold Lawrence Lessig III and later funded by the even bolder Google in 2006 with a $2 million gift).  This academic fellowship evidently produced his 2004 article “(Re)Formalizing Copyright” boldly published by Stanford and, in a nutshell, advocating a requirement of copyright registration.  (My view of this fascination that many of the Lessig crowd have with registrations is to create a giant loophole that would allow Big Tech to use “unregistered” copyrights (especially photographs) as they saw fit.  Boldly, of course.)

As a quick aside, MTP readers will recall that the “address unknown” NOI debacle makes clear that even if works are registered and readily available through searchable databases that currently exist, Google, Amazon, Spotify and some others cannot be trusted to look for the sainted registrations.  These companies appear not to have looked or not to have looked very hard before attesting that they had searched the Copyright Office records in their 70 million or so address unknown filings.  Even allocating 5 minutes per copyright for search time, it would have taken over 350,000,000 minutes (or 5,833,333 man-hours, 243,055 man-days or 665 man-years.  Roughly speaking.  Feel me?  Curiously, Apple never used the address unknown loophole.  It is unlikely that a registration-based system (which the US abandoned decades ago) would produce the promised results but would produce a substantial burden on all copyright owners, especially independents–not to mention the productivity loss to the Copyright Office itself.

This registration loophole is also a core Lessig concept that he pushed during the orphan works bills of the 2006-2008 period (see “Little Orphan Artworks”.  It is echoed in the Music Modernization Act with the requirements to register with the Mechanical Licensing Collective under Title I (at least if you want to be paid outside of the black box) and the registration requirements under Title II for pre-72 copyright owners imposed by Big Tech’s favorite senator, Ron Wyden.  Note neither requirement requires a formal copyright registration so doesn’t go as far as Lessig, Samuelson and Sprigman, but it’s headed that direction.

David Poe Woodward

Sprigman later was co-author with Lessig of the Creative Commons filing to “save” “Jewish cultural music” in 2005 orphan works consultation by Copyright Office.

creative-commons-2008-schedule-b ANNO

In 2006, Professor Sprigman was lead counsel with Lessig on the losing side in Kahle v. Ashcroft (later v. Gonzales) which unsuccessfully challenged the elimination of the renewal requirement under the 1992 Copyright Renewal Act.  He went on to write “The 99 Cent Question” in 2006 attacking iTunes pricing.

Association with Pamela Samuelson

Pamela Samuelson is another registration fan in the professoriate, so it was not unexpected that Samuelson and Sprigman would find each other.  Among his other accomplishments, Professor Sprigman was a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated registration (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).  (MTP readers will remember Samuelson and her husband the tech maven Robert Glushko from the Samuelson-Glushko IP units at various law schools in the US and Canada that consistently oppose artist rights.  A critic might say that the Samuelson-Glushko academic institutes are like Silicon Valley’s version of Confucius Institutes.)

The Copyright Principles Project is especially relevant to Professor Sprigman’s outburst regarding David Lowery because of what I would characterize as the utter failure of Pamela Samuelson to make an impact when she testified before the House Judiciary Committee’s IP subcommittee in 2013.  This missed opportunity was, I think, largely due to Lowery’s takedown of the “Project” that appeared in Politico hours before she testified which Chairman Goodlatte asked to be entered into the record of the hearing where it sits to this day.

Lowery Politico

It’s worth noting that there were no creator members of the Copyright Principles Project, and Samuelson was questioned sharply about this by the IP subcommittee–it sounded like staff had been fed the “Case Study for Consensus Building” without being told that an important group had been omitted from the “consensus”.  Her response was that she didn’t need any creator members on the Copyright Principles Project because she was herself an academic writer.  I think it’s fair to say that while I didn’t see any of the Members laugh out loud, her response was viewed as rather weak sauce in light of Lowery’s post in Politico.   That exchange appears to have led to Samuelson founding the “Authors Alliance” after the hearing evidently to shore up that shortcoming.  Too late for the Copyright Principles Project, however.

All Hail the Pirate King

Like his mentor Lessig, Professor Sprigman also seems to have an interest in defending the alleged benefits of piracy and apparently is a leader of the “IP without IP” movement (and co-author of the piracy apologia, The Knockoff Economy: How Imitation Sparks Innovation.)   (See also what we call the “pro-piracy” article “Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy“.  “[M]ost of that harm [of counterfeits and piracy], at present and for the foreseeable future, falls on foreign manufacturers”–this means you, songwriters.)  He frequently writes on pro-piracy topics with Professor Kal Raustiala of the UCLA School of Law of all places.

It should come as no surprise then, that he represented Spotify in the Nashville cases.  He was co-counsel on Spotify’s papers (with Jeffrey Ostrow from Simpson Thatcher) famously making the losing argument that, in short, lead to the conclusion that there is no mechanical royalty for streaming (after the usual Lessig-esque Rube Goldberg-like logic back flips).  In Sprigman’s America, his Big Tech clients would not pay streaming mechanicals to songwriters at all, an issue that was emphatically put to rest in the Music Modernization Act.  (In a curious case of simultaneous creation, Techdirt came to almost the identically flimsy argument.)

David Poe Delete S

What Did We Ever Do to Him?

But before last week, Professor Sprigman most recently came onto the radar in his chairing of the American Law Institute’s Restatement of Copyright which many (including me) view as a political end-run around the legislative process.  Register of Copyright Karyn Temple said the Restatement of Copyright “appears to create a pseudo-version of the Copyright Act” and would establish a contrarian view of copyright under the mantle of the august American Law Institute.  It’s unclear to me who, if anyone, is financing the Restatement.  (MTP readers will recall The American Law Institute’s Restatement Scandal: The Futility of False “Unity”.)

Aside from the fact that the normal world is not waiting for the Restatement of Copyright, it is hard to understand how a person with such overtly toxic attitudes toward uppity artists like Blake Morgan, David Lowery and David Poe should–or would even want to–participate in drafting the Restatement.

Unless they had a reason.  Like providing a citable text holding that piracy is groovy, for example.  Originalists come not here.

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

Yet as of this writing, the American Law Institute still lists Professor Sprigman as the “reporter” of its Copyright Restatement project.

ALI Copyright

As one artist asked me of Sprigman, what drives him to be so consistently on the wrong side?  What did we ever do to him?

badbunny

(h/t to Fox of TO)

 

 

Guest Post by @poedavid: “Dance Like Nobody’s Paying?” Spotify isn’t

July 15, 2019 1 comment

[We’re thrilled to welcome David Poe to MTP!]

by David Poe

Spotify’s disastrous “dance like nobody’s paying” ad campaign has now been demolished in the national press, garnering negative coverage in Newsweek, Billboard, NME, Hypebot, and more. Sometimes big corporations slip up and show us what they really think of us, and this was one of those times.  

But what’s Spotify’s plan?  Here, Variety’s Patrick McGuire suggests Spotify’s intent is to divide listeners and musicmakers:

Similar to the way many people bite into a cheeseburger with no consideration for the cow and farm of its origin, campaigns like Spotify’s widens the growing divide between listeners and creators. Audiences intellectually understand that music doesn’t magically materialize out of nothingness for the exclusive purpose of entertaining them, but as music continues its irreversible transition to all things digital, listeners are becoming less aware and interested in how artists create, record, produce, and share music. With a 2017 Nielsen Music report showing that, on average, Americans now spend over 32 hours a week listening to music, it’s clear that music is hugely important in the lives of listeners — just not in ways that provide meaningful visibility and support to musicians.

Ever heard that song “Put another nickel in / In the Nickelodeon”? It’s from 1950 (written by Stephen Weiss & Bernie Baum.)

Everyone loves streaming. But more than half a century later, most streaming services contend that a song isn’t worth a penny. I respectfully disagree.

Because a song isn’t really a song until someone listens to it, no  musicmaker should be faulted for utilizing all available platforms. But streaming in 2019 forces music makers and fans into the middle of a moral hazard. Music enthusiasts should be able to listen to streaming music without having to compromise their scruples, or that of their favorite bands.

Despite the lack of transparency in the music industry, The Trichordist has managed to cobble together an annual Streaming Price Bible.  It is the most credible summary I’ve found on what each streaming service pays, which may impact where Spotify listeners choose to put their dough-re-mi:

2018_streamingbible

How Bad Is it for Music Makers?

You can easily see from the chart what each service pays for recordings.  At about $0.003 per stream, Spotify pays little but has the greatest market share.  At about $0.0002 per stream, Google/YouTube is even worse. 

Very different companies. Their commonality: free music, which has made them rich from ad revenue and data scraping, but mostly from their stock price increasing at the expense of musicmakers. 

Let’s put this in context.  To earn a monthly US minimum wage, an artist on Spotify would need 380,000 streams by some estimates.

To make the same monthly salary as the average Spotify employee, a songwriter would need 288,000,000 streams.

Frozen Mechanicals

For reference, the statutory rate for a song on a CD or download is 9.1 cents — 4.1 cents more than ye olde Nickelodeon of the 1950s. 

FROZEN MECHANICALS 1909-1977

You might say that’s better than the old days—but it isn’t as good as it looks, because the song rate was frozen for 68 years before it began gradually increasing … only to be frozen again in 2009, where it will stay until 2022.

FROZEN MECHANICALS 2009-2022

Clearly, streaming has all but replaced CDs and downloads, but without replacing revenue from songs to musicmakers. 

Money is being made from streaming if you look at it on an industry-wide basis.  But—due to the hyper efficient market share distribution of the “big pool” revenue share accounting instead of a user-centric model (or the “ethical pool,”) individual music makers are far worse off.  More than ever, streaming revenue is not paid to music makers who don’t share in the big advances or Spotify stock. 

You Can’t Compete With Free

The vast majority of Spotify users are in the “free tier”. By offering free access, Spotify artificially distorts the streaming market and disallows competition amongst streaming companies. As musicians have learned the hard way, you can’t compete with free.

Spotify likes to say it’s artist-friendly, a tool for music discovery. 

Guilty of chronic copyright infringement, Spotify was founded by a former pirate.  It’s a corporate ethos built on theft.  The Music Modernization Act essentially gave Spotify a new safe harbor, but its tactics haven’t changed.

There’s additional shadiness here: allegations of gender discrimination and equal pay violation, expensive, state-subsidized offices, executive  bonuses, corporate lobbyists, a dicey DPO and of course, the “fake artist” scandal.

Spotify’s ongoing lobbying campaign against artist rights continues despite the unanimous passage of the Music Modernization Act in Congress last year (and the jury is out on the MMA and Spotify’s safe harbor).  Shocker—Spotify apparently reneged on agreements it made to accept the Copyright Royalty Board’s mandated increase in songwriter pay.  Another bonehead move that was publicly rebuked by songwriters from Spotify’s “secret geniuses” charm offensive, including Nile Rodgers and Babyface.

Spotify was joined by Amazon, Google, and Pandora in “suing songwriters” to appeal the Copyright Royalty Board’s ruling that increased the paltry streaming mechanical rate, which Spotify lawyer Christopher Sprigman argued against in court.  

Apple Music does not have a free tier and yet was the only major streaming service that did not challenge the new royalty (44% more, which means 0.004 instead of 0.003, which is still bullshit.)  

This may be because Apple recognizes that music helped save its ass from financial ruin 20 years ago. Math is not my strong suit, but numbers indicate music (via the iPod, a now-obsolete door stop) generated nearly half of Apple’s accumulated wealth not to mention introducing a new audience to Apple’s other awesome products.

Or it could just be that Apple understands creators and may actually like us.  There’s a thought.  We were early adopters—Macs have been in every recording studio and creative department for decades.   

Apple Music’s intent to increase artist pay to a penny per side is its best yet, but now long overdue.   Which is a shame, because a trillion dollar market cap company could afford to redistribute some wealth.  If Apple offered a fair alternative, most would run screaming from the competition.

The Generational Problem

There are many who are more expert than me, some quoted in this post. I’d rather be staring into space strumming guitar and writing a song than here discussing music and money. 

But I’m concerned for the next generation of artists, especially the musical innovators. Here’s why:

There used to exist a sort of musical middle class. Artists in all mediums expected financial struggle but there was the possibility of making a living and even growing as an independent artist.  That might include a record deal or selling CDs at a gig in order to make it to the next town. 

Songwriters could get an album cut and get by or even do well if the album sold (Jody Gerson has a great explanation of this.)  Musicians of quality could see a light at the end of the tunnel.

Streaming has “disrupted” all of that.

Light’s out. 

Bands’ streaming access may—may—help build an audience that may somehow convince talent buyers to book gigs that route your tour, which is awesome. But sustaining a career is still cost-prohibitive for many. 

Thus the Top 40 is full of the children of the affluent. 

Not children of millionaires: Stevie. Dylan. John & Paul. Aretha.

Those of us who have been making music for awhile will remember the optimistic, 1990s-era “monetize the back end” argument: bands on the road can make up income lost to streaming by selling merch. 

I tour, too. I wish the best to every band who does so. 

But not every musician can travel … or got into music to sell a fuckin hat.

Another common sense rebuttal to “shut up and tour:” INCOME FROM LIVE SHOWS WAS NEVER MEANT TO REPLACE THAT OF MUSIC SALES — plus both have investment costs and overhead to produce.

Gas costs what gas costs. 

Mics cost what mics cost. 

Streaming doesn’t pay what music costs.

Sorry to yell. Just sick of this lie that to make up for streaming losses all recording artists, especially senior citizens, should tour forever. Or the assumption they are all rolling in dough! Tell that to the punk rock drummer, alto player, the cellist, the songwriter. 

Note: It’s almost impossible to buy a new car or laptop that plays a CD. Low income streaming has effectively replaced higher income physical sales. 

So if streaming is to be the primary method of music distribution — if not the only one — then pay artists fairly.  Or it really will be lights out, if not for the huge artists who regularly celebrate stupidity then for the ones whose songs you want played at your funeral.

Without musicmakers, Spotify has nothing. When Spotify says “dance like nobody’s paying,” it’s because they don’t. 

Given support from listeners and lawmakers, this era of economic injustice via streaming may one day be a footnote.  Fans should not be paying for music they don’t listen to which is what has been happening and is a hallmark of streaming gentrification.

Now, listeners must demand fair pay for musicians they claim to love, whether it is higher streaming royalties or a user-centric royalty allocation—or both.

#IRespectMusic 

Another Bad Artist Relations Week for Spotify

July 14, 2019 Comments off

Spotify released one of their groovy ad campaigns last week.  This time celebrating their freebie subscription campaign.

D_SMUJEW4AAwd6c

You really do have to wonder where they find the people who come up with these things.

Blake Morgan, David Lowery and David Poe all laid into Spotify with their own tweets.  Just like Lowery’s seminal “Letter to Emily” post, but much faster, social media began driving traditional media with the story.

Billboard, Newsweek, Variety and New Music Express all picked up the story in 24 hours, and many others are also picking up the story.  I did a short post that Hypebot connecting the dots from the giveaway campaigns to user-centric royalties.

But the capper was the Godwin’s Law moment when Spotify’s lawyer and NYU professor Christopher Sprigman went after both Blake and David Lowery on Twitter for reasons that are frankly lost on me.  Professor Sprigman had something of a bizarre moment when he compared Lowery to Alex Jones which culminated in this exchange (recall that Alex Jones was deplatformed):

Sprigman 1

It should not be lost on anyone that Professor Sprigman supported Professor Lessig’s losing argument in the Eldred v. Ashcroft case and apparently was co-counsel with Lessig in another losing argument in the Kahle v. Gonzales case.  It also must be said that David Lowery and Melissa Ferrick’s class action against Sprigman client Spotify and Lowery’s case against Rhapsody were probably among the most consequential copyright cases (along with BMG v. Cox)  in the last five years.  Some would say that the Lowery cases set the table for the Music Modernization Act (and it should come as no surprise that David was asked to serve on one of the committees).

So while Professor Sprigman may find that Lowery “isn’t important”, there is a crucial difference between Professor Sprigman’s big copyright cases and David’s.  Want to guess what it is?

Some are speculating that Sprigman is retaliating on Blake and David Lowery for their successful commentary on his client Spotify–but I’d want to see a lot more proof.  Until then, you’d have to say Charlie has a point when he says that Sprigman is kind of an academic Bob Lefsetz.

Sprigman 2

And Spotify stumbles across the finish line of another bad media week of dissing artists.  Whew. Thank God it’s Monday, right?

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