When Did Noah Build the Ark? Will there be sanctions for absurd delays at the Copyright Royalty Board?

Who can forget that August 31 press release that “NMPA, NSAI, and DiMA Announce Landmark Agreement for Phonorecords IV Proceeding” when a little intellectual elite in a faraway Eastern capitol announced amid the usual self-congratulatory sound of one back slapping they’d decided your fate. This time on streaming mechanicals–but the good news is that someone in Washington did something that didn’t increase the national debt.

What should have happened next was that the Copyright Royalty Judges should have either rejected the settlement or put it out for the usual 30 days public comment period which would be ending right about now. That would mean that the Judges could have issued a final rule before 12/31/22–meaning before the rates went into effect on 1/1/23. If they don’t announce the new rates before 1/1/23, the new rates will go into effect after the new rate period starts, and if they go into effect after the first accounting period closes, the rates in that “stub” period will have to be recalculated retroactively.

Why might they not announce the new rates timely? Because we went through two months delay due to subterfuge and shenanigans with the biggest corporations in commercial history trying to hide the ball on exactly what went into the settlement. The Judges finally had to force the services to certify to the CRB that there were no hidden deals–I wonder why–which is a very unusual step due to that whole candor thing. Judges don’t expect to have to order anyone to be candid. Would you expect to see an order to a party not to suborn perjury? This is like saying, whoa big guy, you may treat each other unprofessionally but don’t you dare to do that to the Judges.

So any day now we will see the proposed settlement appear in the CRB’s docket for public comment, maybe even today. But make no mistake, it’s late. It will be a miracle if it doesn’t cause the whole process to start late and require a lot of extra costs to administer both at the MLC but more importantly at the publishers and songwriter level, right through to tax preparation and of course audits.

This delay is completely avoidable and turned out to be an exercise in snottiness that insults the entire industry. So just sayin’, somebody ought to pay for it, even if it shaved corresponding days off the rate period.

It’s also worth noting that this is another version of the same story we are all going through trying to implement the new rates after the Phonorecords III remand. This leads to another point that the Judges may want to consider.

Every time there’s a new rate, the Judges could require the parties to agree on how they intend to implement the rate. How will they explain it to the accountants, business managers, auditors, publishers, and, oh yeah….the songwriters since it’s actually their money. Someone should be thinking this through to the last mile before the effective date and they don’t.

When did Noah build the Ark?

Before the rain.