Don’t worry, the Department of Justice will protect Google from these cranky artists, democracy is safe. It’s actually a big deal that U2 signed the petition given their connections to Google through the Silicon Valley venture capital networks.
You probably didn’t know that the Obama Department of Justice has been conducting invitation only conference calls with songwriters about the DOJ’s proposed 100% licensing regime they’d like to impose by means of the ASCAP and BMI consent decrees. And these are the calls we know about–I have to assume that the Administration is doing the same with Digital Media Association, Public Knowledge and who knows who else.
What is the purpose of these conference calls with songwriters? From what I hear, the stated purpose of the Administration is to get input from the creative community about how best to implement the DOJ’s proposal. This is kind of like offering the accused a cigarette before the firing squad does its work. It sounds genteel, but does not change what is about to happen. The Administration is not interested in hearing about whether songwriters reject the DOJ proposal, they don’t want to hear–or hear any more–about how the Administration simply doesn’t get how the business of songwriting actually works.
What the Administration wants is for songwriters to accept that the DOJ position is inevitable, is correct and that the DOJ has the ability to impose it upon songwriters whether they like it or not. The kind of comments they then want is of the “Marlboro or Kools?” variety before they do their bloody work.
If songwriters accept the false premise, then the Administration can try to pass this debacle off as a “consensus” among “stakeholders.”
Newsflash: That will never happen.
And worst of all, the Administration are not doing this in a transparent manner. The comments they are soliciting will not be published (at least not by the Obama Administration) and the request for comments is being made by telephone to a select group. Make no mistake–this is not a public request for comments.
Why might the Administration be interested in getting this particular type of response? Judging by the temperature of the songwriting community, those comments are likely to be very, very negative toward the Administration in general and the Department of Justice in particular. It is unclear whether any of those comments received or transcripts of conference calls will ever be subject to…ahem…the Freedom of Information Act.
Perhaps the timing is awkward, or strange for some other reason, but this highly unusual level of secrecy is striking. It may well mean that higher ups are directing the professional staff–who know better–to start a cover up. This under the guise of doing us all a favor by allowing us to request our own brand of cigarettes before the end.
This is not idle speculation on my part, by the way. I hear that the professional staff refused to answer a direct question of whether the White House was involved in “the decision” to screw songwriters, but did say that no one on the call from DOJ made the decision. That is, the DOJ’s professional staff who were being forced to take the brunt of the wrath of songwriters didn’t make the decision. If true, that almost surely points up the food chain from the career people and not down.
That would certainly be consistent with the sources of gloating–the Digital Media Association and Public Knowledge. And what do those two have in common? Google is the dominant member of the Digital Media Association and Google is a long time funder of Google Shill Lister, Public Knowledge.
And, according to the good work at the Google Transparency Project, Google certainly know their way around the White House. And that’s about the only thing that’s transparent about this 100% licensing adventure conducted by the Obama Administration.
Valley Queen (Los Angeles) “In My Place”
Unknown Mortal Orchestra (Portland) “First World Problem”
Disclosure (Reigate, Surrey) Boss (from “Moog for Love EP”
Catfish & The Bottlemen (Llandudno) “Twice”
NVOY (London) “Lord Have Mercy”
If you read nothing else, read this post from songwriter Kay Hanley: 100% licensing is a nightmare for us, while paving a smoother, more carefree road for digital platforms to exploit our copyrights. They have done this despite our pleas, despite no monopolistic behavior on our side and thus, for seemingly for no good reason. No reason, that is, unless one considers that the head of Antitrust is Renata Hesse, former counsel for Google. And who is the primary beneficiary of this massive “FUCK YOU” to the songwriting profession? You guessed it: Google.
Elizabeth @SenWarren Sides With The Streaming Service Not Paying Songwriters Against Streaming Service That Does — The Trichordist
Kettle meet pot. Pot meet kettle. Doesn’t Sen Warren know songwriters are the small businesses and middle class of the streaming world, not Spotify? Who’s given Warren the bad advice? The current wave of “progressives” continue to demonstrate that they are not populist in any sense of the word, especially when it comes to protecting […]
It appears that Music Reports, Inc. (or “MRI”) has applied for a patent for exclusive rights on the process of matching songs to sound recordings and “licensing same”.
The abstract of patent claims for at the application describes the extent of MRI’s exclusivity if the patent is granted. Pay close attention to the word “service” as it is a bit confusing “musical works administration service” which is MRI “to digital music service providers” which is platforms like Spotify.
Disclosed herein is a musical works administration service to digital music service providers (DSPs), to provide a streamlined approach for such DSPs to comply with copyright licensing, accounting, and reporting requirements.
The service receives, from the DSP, information relating to sound recordings used by the DSP during a relevant time period. Using several matching techniques, the service identifies specific musical compositions embodied in each sound recording, and also determines corresponding publisher-share information. Subsequently, the service employs several mechanisms to attempt to obtain licenses for publisher-shares that are not already covered by preexisting client licenses.
Based on the client’s usage of such sound recordings and other related information, the service also performs accounting, reporting, and payment operations for the client. The service, in some instances, receives funds from the client and makes corresponding royalty payments (and makes accounting reports available) to the respective rights holders.
I’m not a patent expert, so when I first read this abstract, I immediately questioned what is special about the patent as it seems to simply describe the clearance process that everyone has gone through since the invention of the cylindrical disc. I realize that the MRI patent is limited to DSPs but I fail to see why this snowflake is special.
Turning to the US Patent & Trademark Office FAQ about patents we find:
In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:
“(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” or
“(2) the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.”
In other words, in order to be patentable, that snowflake really does have to be pretty special. So I still don’t get why anyone should be able to patent the matching.
The abstract appears to be a description of what I understand the MRI business offering to be, especially on statutory licensing of songs. But note that MRI’s patent claims are not limited to statutory licenses.
Given the sustained and abiding interest at DSPs to always be able blame someone else for the DSP’s failure to properly license songs and pay royalties, I was struck by this sentence in the MRI abstract:
Using several matching techniques, the service identifies specific musical compositions embodied in each sound recording, and also determines corresponding publisher-share information.
What the abstract does not reveal is what happens if some or all of the “publisher-share information” is either not known or not licensable (in the case of direct licenses or ineligible statutory licenses). What is clear to me is that any DSP using the MRI patent will have actual knowledge of the “publisher-share information” for 100% of the copyright–including the shares that can’t be found or licensed (in the case of direct licenses).
This is particularly relevant as in the recent press release from MRI in Billboard promoting the patent, an MRI representative is quoted as saying:
“Bottom line: we’ve created a super-efficient mechanism to help solve the problem of mechanical licensing at scale in the United States,” Colitre says. “The DSPs [digital service providers] who use this platform will have bigger cleared catalogs with lower risk; the publishers who use it will get paid faster and more transparently… it is online and operational today.”
Using the patent may have the additional benefit to plaintiffs of simplifying discovery for willful infringement actions since the process will report to the DSP which shares are cleared or create a repository of that information at MRI that can be subpoenaed and then cross-referenced back against works used by a particular DSP. If the patent time-stamps the work done for a particular DSP, it could also be helpful with discovering whether the DSP has complied with the conditions for a compulsory license.
Assuming MRI isn’t going to claim a patent in that process as well.
By Chris Castle
It appears that after receiving thousands of public comments from songwriters, publishers and commenters who racked their brains to offer practical and solutions-oriented ideas to help solve the music licensing issues so prevalent in our business, the Department of Justice has turned up their nose at these ideas in what Rep. Doug Collins has called “arrogance at its worst.”
Instead, the Department of Justice evidently has decided to leave in place the outdated ASCAP and BMI consent decrees and instead focus on one issue–taking away the rights of songwriters to contract and forcing any songwriter who cowrites with ASCAP or BMI songwriters in the past or future to accept the government’s boot on their throat in the form of consent decrees. And they do so on a theory that was never designed for use by the government, a theory that is solely for the benefit of music users and Google in particular.
While Rep. Collins is right that this is “arrogance at its worst” it’s also very likely crony capitalism at its worst. Because the only place Google seems to win on antitrust is in front of the Obama Justice Department and FTC. And it may wind them up in front of a WTO arbitration that will get resolved long, long after President Obama leaves office and the Justice Department attorneys involved go wherever they go after government service.
The Justice Department is relying on a theory of real property law that has been applied to copyright by a handful of courts in the U.S. It is not a rule that is recognized outside the U.S. and it is not a rule that is recognized as creating a power in any government but especially the federal government in the U.S.
Simply put, co-owners of an undivided interest in property have the right to grant a 100% nonexclusive license in the whole property, subject to a duty to account to the co-owners not party to that license for their respective shares of revenue, and provided that there is not an agreement among the owners to the contrary (and also provided that the rate in this license is not economic waste).
Enter the Fallacy
Here’s where the DOJ launches their fallacious reasoning: The U.S. cases frequently cited for this principle all involve voluntary licenses by one of the co-owners.
None involved the heavy hand of the government forcing one of the co-writers to license over any other co-writer’s own objections.
In other words: The DOJ’s analogy of 100% licensing required by a consent decree–and clearly opposed by every songwriter based on the objective records of the DOJ’s own public comments–FAILS. The main reason it fails is that it attempts to shoehorn a real property concept into a judge-made intellectual property concept and replaces a voluntary act by a co-owner with a government mandate enforced through the awesome power of unelected bureaucrats and unelected federal judges.
DOJ Interferes with a Massive Number of Private Contracts
But–it also fails because the Justice Department ignores the fact that courts and commentators have also found there to be limitations on the rights of co-owners to protect the rights of their other co-owners starting with the ability to contract among themselves to self-administer their respective contributory shares of copyright in a single work, especially a song. (See comment by Stanford Law School Professor Paul Goldstein.)
Every songwriter is cautioned to sign a “split agreement” when they co-write. These are one-page agreements (or at least short form agreements) that act as a joint administration agreement. These agreements get signed regardless of whether the song is ever recorded or registered for copyright, but the songs often will be registered with the co-writers respective PROs. And since the PRO databases are searchable for free, there’s a pretty good argument that any music user is on constructive notice of the ownership shares at the outset and that given industry practice, there’s a very good likelihood that if the song found its way into the PRO databases, there is some kind of writing among the writers that will vitiate any attempt to execute 100% licenses.
Not only that, but there’s actually an argument that can be made pretty effectively that even if there is no other writing among co-owners, the fact that they each have a different PRO represent their performing rights is itself an agreement that must be respected. And once registered with a PRO, the world is on notice of that, too.
But the Justice Department turns up its nose at the expense and effort that it put the entire music community through in public comments all with the aspiration of helping solve a problem which is what we thought everyone was doing. This is astonishing arrogance.
Not only is the Justice Department not interested in what the songwriters have to say about how they would like to improve their business, DOJ are engaged in a dangerous adventure into taking private property without just–or any–compensation. Over the wishes of those who created the property.
Why would they do this? The Justice Department seems to have developed a new concern after all these decades that songwriters have suffered with the government’s boot on their throats. The Justice Department’s concern is that one songwriter might be able to block a license.
Has that ever happened? No–but one example comes to mind.
Given the mess that the rate courts have made of the archaic consent decrees, some writers have opted out of the whole show and formed and new PRO representing songwriters called Global Music Rights or “GMR”. GMR’s songwriters are negotiating their own performing rights licenses, as is their right.
And GMR threatened to pull out of YouTube as is also their right.
So if the DOJ can point to the line of cases that support the idea that it is a well-settled principle of copyright law that the government can reach out through one consent decree and impose its rules on all songwriters, foreign and domestic, regardless of whether those writers are members of ASCAP and BMI, and without an opportunity for those songwriters to be heard–I’m all ears.
But don’t call it voluntary licenses.