Author Archive

Jimmy Breslin RIP

March 20, 2017 Leave a comment

Who among us can change someone’s life with a couple thousand words written on a deadline?  Who can look at the same event that maybe millions of others see but bring out that nugget that everyone else completely missed?  A nugget of humanity that is essential to the true perspective of the story and vital to the roundness of the truth?

People often ask me what is the best preparation for persuasive legal writing.   Is it a degree from a fancy law school?  No.  A job in a big law firm or a judicial clerkship? No. It’s right there in front of you in today’s paper.

These writers are sometimes called “deadline artists” and you’ll find their words in the opinion pages of contemporary newspapers every day and have done for a hundred years and more.  These are the eternal wordsmiths whether the name is H.L. Mencken or Langston Hughes, Mark Twain or Damon Runyon, Will Rogers or Art Buchwald.

Or Jimmy Breslin.

If you haven’t read or read many of Breslin’s columns, you really owe it to yourself.  A few  suggestions–“A Death in Emergency Room One” and “It’s an Honor” on the JFK assassination, “Fear in Queens” about Son of Sam (a strange history), “A Part of a Cop’s Past Lies Dead” about the murder of John Lennon or “A Smile Gone, But Where?” on 9/11.

When you read these short stories masquerading as newspaper columns, remember the man wrote for immediate publication and under a deadline.

And also remember what he said of himself:  “Rage is the only quality which has kept me, or anybody I have ever studied, writing columns for newspapers.”


YouTube Finally Reaps What it Sows as UK Govt, The Guardian, the BBC and mega ad agency Havas cuta off ad spend

March 20, 2017 Leave a comment

It began around the time of SOPA.  Sources tell me that after meeting with a global ad agency and explaining to them how their advertising buys supported piracy, the source got a call from a well-known Google lawyer threatening him if he continued making that case to Google’s big advertising accounts.  Presumably, that threat was because the agency jumped on Google.

But nothing changed.

Harvard Business School Professor Ben Edelman took the lead on making the case for an advertiser’s bill of rights so that brands could feel like they knew where their ad spending was going and were getting what they paid for.  Seems logical, right?

But Google essentially told brands that you give us money and we serve your ad wherever we want to.  And nothing changed.

Ellen Seidler called out Google for selling ads on Megavideo.  Absolutely clear evidence that Google was doing the very thing they told advertisers they were not doing.  The Megavideo indictment alleges that Google had a direct agreement with Megavideo, confirming Ellen’s research.

And nothing changed.

MTP readers will recall how I posted example after example of Google distributing jihadi recruiting videos, “how to” videos on shooting drugs (who can forget “Banging Up for Dummies” and “Femoral Fiesta”, and blatant advertising for illegal drug sites–the same kind that Google paid a $500,000,000 forfeiture for supporting after signing a non prosecution agreement with the Department of Justice.

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And nothing changed.

Mississippi Attorney General Jim Hood tried to serve a subpoena–just a subpoena–on Google for violating that non prosecution agreement.


At almost the exact moment, North Korea hacks Sony Pictures and Wikileaks releases thousands of internal emails from Sony that strangely enough contained only two from a email address.  In another strange coincidence, a bill miraculously appeared in the Mississippi legislature that would have stopped funding for Hood’s investigation of Google.


That’s m-i-s-s-i-s-s-i-p-p-i…

Google fought Hood every step of the way and ended up settling the case.  Why would they do that?  In my view, they did it because they were guilty and they knew it.

And nothing changed.

We always said that the only thing–the only thing–that would get YouTube to clean up its act would be if advertisers pulled the plug.  Why?  Very simple–for all of Google’s Silicon Valley goo goo about being good people, there’s only one thing that motivates that company–money.  And over 90% of the Google money comes from advertising.  So until advertisers start making noise and stop paying money, Google doesn’t care.

One reason they care about advertisers is the obvious one–advertisers can cut off the money and that’s a whole lot less ooh la la for Eric “Uncle Sugar” Schmidt.


But the other reason, the less obvious one, is that there’s no safe harbor for advertising fraud.  No DMCA, no CDA.  State attorneys general have the absolute right to protect their citizens–corporate or human–from fraud.  And then you’re talking real money.

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So now we find that the UK government, the Guardian, the BBC and the Havas mega ad agency are cutting off YouTube according to the Christian Science Monitor:

As an al-Shabab militant called for jihad inside Kenya, an ad at the base of his YouTube video urged viewers to “Book Now” for a Sandals tropical vacation. An armed neo-Nazi promoting Combat 18 was paired with a call to volunteer for the hospice charity Marie Curie.

Last month, an investigation by The Times of London detailed these as two examples of how major brand names frequently appear alongside hateful YouTube content. A separate article by The Guardian wrote that the UK revenue from these ads amounts to about £250,000, or $318,000, for “extremists and hate preachers.”

On Friday, ad agency Havas Media, whose high-profile clients include Hyundai and the Royal Mail, announced that it would stop placing ads on YouTube and its parent company, Google. The tech giant – which commands more than 30 percent of global online ad revenue and draws 90 percent of its own revenue by placing ads – was quick to respond.

We’ve begun a thorough review of our ads policies and brand controls, and we will be making changes in the coming weeks to give brands more control over where their ads appear,” wrote Google UK managing director Ronan Harris.
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Ronan Harris–who looks suspiciously like one of those CAA mail room kids who got sent for coffee in their own 7-Series–had a typically Googlely response:
However, with millions of sites in our network and 400 hours of video uploaded to YouTube every minute, we recognize that we don’t always get it right. In a very small percentage of cases, ads appear against content that violates our monetization policies. We promptly remove the ads in those instances, but we know we can and must do more.
Note the switch from hard numbers (“400 hours of video”) to “a very small percentage of cases [when] ads appear against content that violates our monetization policies.”  Google always switches from hard numbers to percentages when they are trying to deflect bad behavior.  So let’s say that 1% of the videos on YouTube were jihadi recruiting videos, how to build a bomb, white power, sell illegal drugs, or whatever.  That’s  4 hours of video per minute being uploaded to YouTube.  Oh that’s OK, right?  Because it’s a very small percentage….
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They really don’t get it, do they?  And isn’t the important thing that YouTube shouldn’t be distributing the videos in the first place?  It’s not just about the money, kids.  Money may have been what got their attention, but it’s not just about the money.
YouTube frequently tries to pass itself off as the new television (and they have a point there).  But if that’s true, can you imagine a network saying that they were broadcasting hate videos into your home just a small percentage of the time?
Google’s problems all come down to the same reason–YouTube is user generated with no controls other than after the fact if and when they get caught.
What would really get their attention would be if the Federal Trade Commission or the Department of Justice opened a serious investigation into YouTube’s advertising practices.  That may well be coming since advertiser fraud is still advertiser fraud whether it happens in the U.S. or in Europe.


@legrandnetwork: ‘Outrage’ at Trump’s proposal to eliminate arts agencies — Artist Rights Watch

March 20, 2017 Leave a comment

The US music community has expressed outrage at the Trump administration’s proposal to eliminate two publicly-funded agencies dealing with the arts – the National Endowment for the Arts and the National Endowment for the Humanities – as well as terminating the Corporation for Public Broadcasting, which helps fund public TV broadcaster PBS and National Public Radio….

For singer/songwriter Blake Morgan, who is at the origin of the #IRespectMusic, the NEA is part of a personal narrative. “I’m a professional musician today in large part because of the National Endowment for the Arts,” he told Music Week. “My mother, the author Robin Morgan, won an NEA endowment when I was a child. With that money, we were able to pay off some bills, buy winter coats, and my mother used the remainder to pay for piano lessons for me, as well as my first entrance into music school. Without the endowment, neither would have been possible at the time.”

Morgan added: “I’m outraged at this nonsensical attack on American artists, and the arts in general. Every authoritarian leader in history does two things when they rise to power: first they attempt to discredit journalists, and then they attack and repress artists. This particular leader is no exception. American artists – of every discipline – will fight him, and anyone who attempts to do the same. And I will be on the front lines of that fight.”

via @legrandnetwork: ‘Outrage’ at Trump’s proposal to eliminate arts agencies — Artist Rights Watch

Loopholeapalooza! Spotify Files 247,112 “Address Unknown” NOIs

March 17, 2017 Leave a comment

Spotify NOIs

Just in time for SXSW, Spotify became one of the latest to move aggressively to take advantage of the “we can’t find them” loophole in the Copyright Act.  Rightscorp informs me that after uncompressing the NOI file from the Copyright Office site, Spotify has filed “address unknown” NOIs for 247,112 songs.  MTP readers will recall that this loophole allows digital streaming services to claim that the service cannot “identify” a song copyright owner in the public records of the Copyright Office even if the song owner could easily be identified elsewhere, like in the records of the digital service itself (such as Content ID) or in the files of the services licensing agent, or with the U.S. PROs, or after a simple search.  (See also my interview for Music Tech Solutions on the subject with Rightscorp’s CEO Christopher Sabec.)

The punchline, of course is that the service will claim the protection of the compulsory license and will not pay royalties until the song owner is identified in the public records of the Copyright Office.  When might that happen?   When the song owner files a copyright registration or other recordation in the Copyright Office which they are not obligated to do in order to enjoy many of the rights of a copyright owner, including being paid mechanical royalties.  The “address unknown” loophole will ring especially hollow with songwriters who reside outside of the U.S. and who are members of a non-US PRO.

One can understand more readily how a U.S. company not familiar in the ways of the international system might find the mass NOI filing attractive, but it is a bit harder to understand how the U.S. affiliate (Spotify USA) of a European company (Spotify AB) doing business with European songwriters all the livelong day could possibly make this unforced error.

In fairness, it’s also important to recognize the need for the address unknown filing as long as you’re going to have a notice-based compulsory license.  Musak’s filing, for example, is a handful of songs that do look genuinely obscure.  I’d suggest that’s an example of a company using the statute the way Congress intended.

On the other hand, Spotify joins the artist-friendly ranks of Google (6,041,943 NOIs), Amazon (19,509,450 NOIs) and Pandora (1,193,346 NOIs) in piling on to the loopholeapalooza currently happening at the Copyright Office that has received over 30 million address unknown NOIs since April 2016 based on Rightscorp’s calculations.  Spotify’s case is particularly bizarre because of the high profile settlement the company entered with the NMPA that established a claiming service for those who signed up in time.

If you call out these services on the subject and ask why they need to get a royalty free license, their representatives will sometimes say that the lack of a royalty was not the motivation for loopholeapalooza–their companies were just trying to avoid liability for copyright infringement class action lawsuits.  They’ll tell you informally that their companies intend to pay every penny they owe or some other swiss cheesy statement like that.

They may even say that they intend to pay retroactively once the song copyright owner is identified.  But since the loophole only requires that they pay going forward, a retroactive payment is not required and therefore they don’t “owe” it.

See what they did there?

They haven’t put that retroactive payment promise in writing to the world by any means and they also don’t send statements to the Copyright Office.  How would a songwriter ever know what they were due either retroactively or prospectively?  (It’s also important to know that there is no audit right under a compulsory license, so as soon as a songwriter agrees to take that compulsory license without a struggle, the songwriter is essentially waiving a right to past certified accountings required under the compulsory license and to audit for either the past or the future.)

The Spotify “address unknown” NOI filing of 237,000 plus songs doesn’t pass the laugh test in many cases.  It includes titles from Timothy B. Schmidt (formerly of The Eagles), a number of artists signed to “WM Spain” which after a 2 minute search appear to be songs performed by artists signed to Warner Music Spain, as well as artists signed to Parlophone UK and well-known catalog artists like Uriah Heep.  (Parlophone was owned for many years by the former employer of one of Spotify’s former Chief Content Officers.)

For starters, the idea that Spotify can’t find Tim Schmidt is simply ridiculous.  But more troubling is a common thread through the mass NOI filings by the big services–there seem to be an awful lot of ex-US or non-Anglo American releases which presumably include songs by songwriters who probably don’t know the loopholes of U.S. law or who might have the strange idea that maybe the Berne Convention’s prohibition on formalities might prevent their falling subject to this stunt.

At least in some spot checks, it seems like many of these “address unknown” NOIs are faulty and possibly noncompliant for a host of reasons.  In Spotify’s case, though, it’s particularly hard to understand given that their NMPA settlement barely has dried ink and already they are back at the shenanigans for at least some songwriters who are easily found.

I guess you can’t find them who you don’t look for.

We’re from Amazon and We’re Here to Help: Amazon Wants to Commoditize Festivals

March 10, 2017 Leave a comment

It probably drives Amazon crazy that they haven’t found a way to commoditize music festivals like they have all other aspects of retail, using brick and mortar retailers as Amazon showrooms.  So it should come as no surprise that Amazon is going to try to fix a problem that doesn’t exist for anyone but them–the fan experience at music festivals.

According to Music Business Worldwide, Amazon is going to force their way into the festival business–without taking any of the risk, of course.  Good news is that most festivals can control who gets to set up shop on the festival grounds, the bad news is that Amazon will probably waive a bunch of cash under the promoters noses to buy their way in.

And here’s the pitch from Amazon for “Senior Program Manager, Music”–and the complete lack of music business experience is striking.  Maybe they should have added, “Can hump trap case up 4 flights of stairs” or “Handy with a baseball bat when braced by bikers”:


Thirty-two million people attend music festivals in the United States each year. Amazon wants to dramatically improve their festival experience through our signature focus on innovating on behalf of our customers. The Senior Program Manager, Music will take an idea – to have a physical festival presence with on-site food and product delivery, custom tour merchandise for purchase, artist meet and greets, and convenience amenities such as free Wi-Fi, water, charging stations, and restrooms – and bring it to life. If you are passionate about the role of music in our everyday lives, surprising and delighting customers, creating unique and memorable events, and making something out of nothing, this is the role for you.

The ideal candidate will be a self-starter comfortable with ambiguity and data-driven, fast-paced environments. You must be able to seamlessly pivot between big picture strategic thinking and scrappy, on-the-ground, tactical execution. This role is inherently cross-functional and you will rely heavily on influence over authority to drive project deliverables. Communication and persuasion skills will be key as you will need to convince both internal and external parties to lean in and partner.

Key responsibilities will include gathering business requirements, documenting functional and design specifications, identifying appropriate resources needed, and developing the milestones and launch schedule to ensure timely and successful delivery of the initial pilot project. The Senior Program Manager will assess and manage risks, measure and report on progress, anticipate and resolve bottlenecks, provide escalation management, anticipate and make tradeoffs, and balance the business needs with the technical constraints.


· Bachelor’s degree
· 5+ years relevant business experience (product/program/project management, retail buying, marketing, or management consulting)
· Excellent oral and written communication skills with the ability to influence others internally and externally
· Strong analytical and quantitative skills with the ability to use data and metrics to back up assumptions, recommendations, and drive actions


· MBA or Master’s degree in relevant field
· 7+ years of experience
· Experience communicating with technical and non-technical stakeholders across multiple business units
· High level of comfort communicating effectively across internal and external organizations
· Extensive experience in product, program, and/or project management in leading cross-functional teams in delivery of major new products or services

Yes, we’re from Amazon and we’re here to help.  Whether you like it or not.  Maybe they’ll track fans around the festival grounds to see which stages they pause in front of,  have drones scalping tickets, or cross-post compromising selfies on your Facebook page and Instagram account.

How Accurate are Music Subscription Service Subscriber Numbers? — Music Tech Solutions

All of you who subscribe to the New York Timesfly Quantasuse any of a number of mobile carriers or who are in the 6th month of your third Spotify 90 day free trial may be interested in this post.

According to Billboard in a story titled “Spotify Officially Hits 50 Million Paid Subscribers“, the “official” announcement came from a tweet:

I found this intriguing–how did we go from “Spotify Officially Hits 50 Million Paid Subscribers” in the headline to a tweet that doesn’t really say the same thing?

via How Accurate are Music Subscription Service Subscriber Numbers? — Music Tech Solutions

New Boss Royalty Deadbeat Facebook Wants to Stiff Everyone

March 1, 2017 Comments off



“I’ll gladly pay you Tuesday for a hamburger today.”

J. Wellington Wimpy

New boss royalty deadbeat Mark Zuckerberg is suddenly getting  serious about “premium” content licensing, but is bringing pre-1999 thinking to the table.  He’s proposing what’s called the “Wimpy Deal” that takes ones and zeros to a whole new level.  Zeros to the right of the decimal place, that is.

According to Music Business Worldwide:

Yesterday, in an earnings call with investors, Mark Zuckerberg gave the music business yet more reason for [false] optimism.

The Facebook founder once again confirmed his company’s increasing focus on video – while making specific reference to ‘premium content’….

“But there’s also a whole class of premium content. The creators need to get paid a good amount in order to support the creation of that content, and we need to be able to support that with a business model, which we’re working on through ads to fund that.

And the Facebook CFO confirmed the rev share “burger today” approach:

Zuckerberg and Wehner were then asked by Brian Nowak of Morgan Stanley whether Facebook’s content investment would be “more driven on revenue share – or do you see yourselves going out and writing and doing licensing deals?”.

Wehner replied: “Our goal really is to kick-start an ecosystem of partner content in the video tab… and our model is really oriented towards revenue share with creators. We are funding some feed content to get the ecosystem going, but the focus is on rev share.”

Is There Any Future for Revenue Share Royalty Deals?

MTP readers will recall that we have questioned the continued utility of the Dotbomb era legacy Wimpy revenue share deals that both songwriters and artists currently suffer under.  There are many examples of the absurd costs of accounting and reporting on a revenue share basis for per stream rates that don’t have a positive integer before the third decimal place to the right.  Suffice it to say that the transaction costs of receiving and distributing revenue share payments likely exceeds the total revenue paid in almost every case.  And if the mere accounting doesn’t, then the first label audit will, particularly since there is practically no recourse against music services to know how the advertising revenue was calculated.

A revenue share structure is not a business–unless you’re into burger futures.  This got into the house back in the days when nobody paid too much attention to what they were getting up to over there in New Media Land until suddenly streaming was cannibalizing higher margin sales.

We now are seeing cannibalization come home to roost as pre-IPO streaming services gleefully try to convince us that trading a lot of sales of a high margin good for a lot of streams of a very, very low or no margin good is actually healthy for “the music business”.

Services may try to convince everyone that flat money, breakage, technology payments or the IPO shares will make up for the absurdly low royalty rates–aka glass beads and blankets–but artists are less and less interested in selling Manhattan on the cheap.  And I don’t know anyone named “the music business”.  I do know that there are lots and lots of artists and songwriters concerned about cratering royalty checks.

So–if you are wondering why streaming renegotiations have tended to stall, the changing of the guard in New Media Land may not be the only reason, but it’s certainly one of them.  And don’t be surprised to see New Media Land executives recruited by digital services for the big bucks–which probably was the plan all along.  It certainly works for lobbyists.

Nowhere is this phenomenon more pronounced that with the ridiculous YouTube royalty deals which are all based on rev share.

In the middle of this, Facebook has yet to even acknowledge that they need licenses for the music they play on their platform.  Their strong move is to hire a licensing person from YouTube–probably to float the idea of doing the same revenue share deals that are cannibalizing our business.

We know what’s wrong with perpetuating the YouTube debacle with Facebook (or anyone else).  The question is, will new boss Facebook be able to jam this absurd new boss legacy revenue share structure down our throats.

They have now told us they will try, so this might be a good time to tell them we’re not gonna take it.

What Should A Facebook Deal Look Like?

Like any of these situations, Facebook needs to address the past and then pay a license for the future.  Given Facebook’s cavalier attitude about music rights, they’ll not be taking this too seriously.  Unless they’re made to.

Given the opportunity to book a dollar on Tuesday, there are many big rights holders who might look at a payment from Facebook as “found money” or even perhaps as an employment lifeboat.  It wouldn’t be the first time a music executive jumped ship after making a deal with a digital service that suddenly became their employer.

The absolute worst move would be to allow Facebook to make a token payment of what they will view as chump change–literally change paid to chumps–and then let them drag out using recordings and songs with no meaningful compensation or record keeping.

In other words–don’t let them create yet another black box with no transparency.

How much for the past is enough?  Facebook’s Sheryl Sandberg has told us that the $500,000,000 payment Facebook was ordered to pay Oculus is “nonmaterial”.  Good–maybe that’s a place to start, then.

How much for the future?  Whatever it is, it should not be less than Spotify’s free service.  Why?  First of all out of fairness to Spotify.  Why should Facebook get a better deal than Spotify?  But mostly out of fairness to us!  Remember–the focus has been on labels having all this supposed leverage over Spotify who will have a hard time registering an IPO (assuming they haven’t already registered a confidential IPO under the JOBS Act).

Well–if Facebook gets let off the hook at a crucial point in the Spotify renegotiations, then why should Spotify take a worse deal than Facebook?  Maybe the leverage shifts the other way and who could blame Spotify (and others) for piling on at that point.

So Don’t Blow It

Why should it always be Tuesday at Facebook?

A Facebook music license portfolio is a golden opportunity to at least start to get out of the shite revenue share world once and for all, a world we were condemned to long ago by the New Media idiotocracy who bargained away the creator’s birthright.  Facebook is stealing recordings, videos, song titles and artist names.  Why should they get a pass without some serious zeros attached to it?

Zeros to the left of the decimal place for once.

The question is–do you want fairness and transparency or a fast buck with a black box?


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