You may have heard that there was a settlement of the streaming mechanical rates in the Copyright Royalty Board proceeding called “Phonorecords IV”. You may not have noticed in all the backslapping that no settlement agreement was filed with the CRB by the parties. The Copyright Royalty Judges noticed (as did George Johnson) and the Judges demanded that the parties either certify there was no settlement or file it. Note the Judges asked for the agreement because the Judges wanted it, not because George wanted it.
Today it turns out that there was a settlement agreement but Google & Co. refused to file a public copy. The Judges were trying to promote transparency, but the lawless parties to the settlement decided to fix their wagon–they filed it under seal, which means that unless the Judges reject their assertion that the agreement should not be public, the Judges’ effort at transparency fails because the most dangerous corporations in the world want it that way.
Why did the Judges ask for the settlement agreement? Simple–they almost got burned in the frozen mechanicals proceeding until they put their foot down. It turned out that there was a side deal that benefited some of the publishers but not all the songwriters who were subject to the frozen rates. That’s why the Judges rejected the first settlement.
To their credit, the labels came back and openly settled at a much higher rate, including a cost of living adjustment for songwriters. But that’s not what happened with streaming mechanicals and the most dangerous corporations in the world.
So now we know that there is a settlement agreement, but we don’t know what it says. We have to assume that the reason we don’t know what it says is because some animals are more equal than others, to coin a phrase.
The undisclosed settlement could include things like payment of the publishers’ legal fees, a nonrecoupable unallocated payment to sweeten the royalty rates for some but not all publishers, or special rights that don’t accrue to all songwriters everywhere in the world.
But it seems like there must be something they don’t want songwriters to see–otherwise why hide the ball? They fail to understand a simple truth–it is all the songwriters money. True, there are publishers involved, true there may be administrators, but at the end of the day however much we like and appreciate our publishers, these people are just visiting. Yet they want to keep songwriters from knowing the details, just like they did with the frozen mechanicals.
But most insulting of all is that they are now doing it to the Judges. The Judges should simply reject this failure of transparency. It is one thing to hide commercial information; it is another to hide the very terms that apply to the royalty rates set for every songwriter in the world, then expect the Judges to just rubber stamp that hidden deal.