Congress will be in recess from December 16 to January 3 and the controversial Librarian of Congress gets to appoint a new head of the Copyright Office to replace Maria Pallante who was fired by the Librarian on October 21 in what looks to many like an actionable constructive termination. We think that the Librarian will avoid consulting with Congress about who she will appoint to run the Copyright Office because she’s gone rogue.
What better time to get her way (at least until Congress undoes her appointment) than to appoint the new Register during the upcoming Congressional holiday recess? So we wanted to let you in on the office pool for which day she’ll make the appointment!
MUST READ: Two Former U.S. Copyright Heads Defend Maria Pallante from Sacking by Rogue Librarian of Congress — Artist Rights Watch
Two former heads of the U.S. Copyright Office sent the following letter to the chairs of the House and Senate Judiciary Committees in sharp criticism of the abrupt and possibly actionable sacking of Maria Pallante, the former head of the U.S. Copyright Office. (The job title is “Register of Copyrights”.) The letter attaches a detailed explanation of the role of the Copyright Office and the office of the Register and is well worth the read.
Big congratulations to Flo & Eddie (aka The Turtles) and class counsel Henry Gradstein for a great settlement in their indie label class action against SiriusXM for pre-72 sound recordings. The settlement is a guaranteed $25 million payment against a 5.5% license for 10 years which is worth between $45.47 million to $59.2 million assuming Sirius continues to play the remaining class member’s recordings at the same play rate as the past.
I was always a huge Leonard Cohen fan both as an author (especially Beautiful Losers), songwriter and performer. Leonard’s songwriting highlights what is quintessentially good about great songwriters–they write songs that are the constants that echo through generations and upheavals, and great ones find their way into the groundwater. It’s an achievement to write one great song–Leonard did that over and over again.
The first time I met Leonard Cohen was backstage at Montreaux when I played there with Jesse Winchester. Leonard, Jesse and Gordon Lightfoot were all playing the show and the artists and bands got together for a drink after the gig. That was a pretty etherial experience. I also used to run into Leonard at Oscar’s Wine Bar near the old Chateau Marmont when I lived there for a while. I didn’t know him well, but he was a cool guy to hang with, unselfconscious with a kind of casual genius. I always thought there was something going on behind those eyes that washed into a pure pool of genuine genius from which reservoir he would quench his thirst down the line.
Many years later, A&M distributed the inspired Famous Blue Raincoat album duet with Jennifer Warnes on the Cypress label, and later still released Tower of Song, the tribute album that was the inspiration of David Anderle, the great A&R man. Tower of Song is an overlooked gem with a stellar lineup including Peter Gabriel, Don Henley, Bono, Billy Joel, Aaron Neville, Tori Amos and Willie Nelson. (Which I don’t believe has ever been released on vinyl and should be.) I’d also recommend that the next time you go to a Janita show that you ask her to perform her electrifying rendition of Hallelujah.
Leonard was an extraordinary talent as an author, songwriter and artist who inspired us all.
According to MLex:
Republican former US Federal Trade Commissioner Joshua Wright will lead the transition team of President-elect Donald J. Trump that is focused on the FTC, MLex has learned.
Who is Joshua Wright? When they say “former US Federal Trade Commissioner” they miss the part where he served less than half of his term and had to promise to recuse himself from Google matters in order to get confirmed by the Senate.
Re/Code reported last year, Wright exited the Federal Trade Commission abruptly:
Joshua Wright, a commissioner at the Federal Trade Commission who has been viewed by some as troublingly pro-Google, is leaving the agency. The FTC announced the news on Monday. When Wright was appointed in 2012, he faced criticism for his positions on Google, particularly this paper critical of aggressive antitrust action. So he recused himself from cases involving the search giant for two years, including the high-profile case [against Google that the FTC failed to prosecute in 2013 and which is currently being vigorously pursued by the European Commission].
Wright was called out by Buzzfeed for some rather bizarrely pro-Google tweets:
William Alden writing in Buzzfeed reports that these tweets are yet more evidence of agency capture by Google of the Federal Trade Commission–it’s indirect, but it’s not fooling anyone:
Google’s allies in Washington have used plenty of subtle techniques to help the search giant advance its agenda.
Now, one high-ranking official has employed the art of the subtweet.
Joshua Wright, a commissioner of the Federal Trade Commission, posted three tweets…that appear to refer to Google — the subject of a recent antitrust inquiry by the FTC that did not result in any charges — without mentioning the company by name.
Wright’s tweets indirectly defended Google against the results of a damning study by Professor Tim Wu and others that demonstrate consumer harm by Google favoring its own products over those of competitors in search results. (“Is Google Degrading Search? Consumer Harm from Universal Search.”) See Andrew Orlowski’s reporting on the study. That study comes at an unfortunate time for Google who is facing antitrust prosecution in Europe (for claims that the FTC professional staff thought should have been brought in the US–before the FTC commissioners killed the US investigation.)
In other words–it sure looks like Joshua Wright is exactly the kind of swamp dweller that one would have expected Mr. Trump to avoid.
Don’t tell me there’s a silver lining because Google will not have as much access to the White House as they’re used to under Obama. It may not be quite so cozy as it was, but it’s starting to look like Google really is part of the deep state.
Librarian of Congress Fails to Alert Oversight Committees of Massive Abuse of Copyright Loophole by Google and Amazon to Use Songs Without Paying U.S. or Foreign Songwriters
[Editor Charlie sez: This post first appeared in the MusicTechPolicy Monthly newsletter.]
The Librarian of Congress? You may ask what in the world does the Librarian of Congress have to do with the music business? The answer is–more than you might think, mostly due to the fact that the U.S. Copyright Office is under the direct and total control of the Librarian. The recently installed Librarian of Congress, Carla Hayden, seems more than willing to look the other way when crony capitalists with Obama Administration influence come calling.
Google and Amazon are the first two vastly wealthy multinational media companies to enjoy the Librarian’s collaboration. These two companies are currently exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. How? A process that starts with buying from the Library of Congress a data file that contains some of the post-1978 copyright registrations and other recorded documents–and by paying a hefty fee to the Library of Congress.
It’s not exactly a back door purchase, but you have to know who to ask (Bonita Brown at firstname.lastname@example.org) and you have to know what page it’s on. We asked the research desk at the Library of Congress and they had no idea what we were talking about.
And here’s the scam: Users of the compulsory mechanical license have to send a “notice of intention” to the song copyright owner (“NOI”). Finding that copyright owner is usually a process of song research in readily available databases. In Google’s case, this would include Google’s own Content Management System and data it acquired in its purchase of Patrick Sullivan’s company Rightsflow (which is essentially a snapshot of the Harry Fox Agency database that was either sold to Rightsflow or came under its control some other way).
However–in a remnant from the 1909 Copyright Act that required registrations in order to enjoy the rights of a copyright owner, Google need not look further than the public records of the Copyright Office in order to comply with the search requirements of the compulsory license. Even if Google has actual knowledge of the song owner’s contact.
The reason Google gets away with it is due to the negligence of the Librarian of Congress. The Librarian allows this scam to get started and has no controls in place to determine if Google and Amazon are even entitled to the filings which they are clearly not in Sting’s case. And it clearly isn’t just hit songwriters–it’s mostly the little guys who are being bullied by Big Government and Big Tech.
But the Librarian wouldn’t know because the Librarian never checked.
If Google can’t find the song owner (as determined by Google, not by the Library of Congress), the law allows Google to send that NOI for the unfindable song owner to the Copyright Office. And Google and Amazon are sending these “address unknown” notices to the Copyright Office in the millions at great expense to the taxpayer because the filing fees for NOIs can’t possibly come anywhere near covering the cost of the processing.
Why are Google and Amazon doing this? One reason is that by filing the NOIs, they do not have to pay royalties until the songwriter identifies themselves in the Copyright Office system, they cannot be sued as infringers, and they cannot ever be audited.
I happened to speak to a representative of one of the mass NOI filing companies after a recent panel in Los Angeles who assured me that the reason that his clients were filing these NOIs was not because they did not want to pay royalties but because they were so worried about liability from a “Jeff Price jihad” and that his clients fully intended to pay royalties retroactively once the song owner became known unlike the record companies who are “thieves”.
I believe that he believes that his client believes that they’re just trying to avoid being sued for not having the rights, but humor this unbeliever. My bet would be that getting that retroactive payment will take the effort worthy of an act of Congress.
If his new boss clients had a reputation for or history of treating creators fairly, I’d be far more inclined to bet on sunshine and puppy dog tails, but they don’t so I won’t. The problem would be easy to solve–all they would need to do is issue a press release or even a blog post on the Google Public Policy blog stating that it is the official position of the company to pay retroactively. Even if you accept his premise that record companies and music publishers are “thieves,” they never filed millions of NOIs. In the meantime while we’re waiting for that post, I think we have to act as if it is not coming.
Another problem with the Librarian’s position is that there is a real possibility that permitting the mass filings of millions of NOIs for foreign works may very well violate international copyright and trade treaties and could land the U.S. back in a WTO arbitration at great cost to the taxpayer.
So another debacle by the Librarian of Congress that really hurts songwriters, exposes the U.S. taxpayer to great costs and for which the government is entirely unaccountable unless Congress exercises its oversight authority through the House Committee on Administration and finds out what is going on over there.
For more detail on government complicity in the mass NOIs, see this three part post.
Remember when the Librarian of Congress issued a press release about how Maria Pallante was being promoted from the Register of Copyrights to something that sounded awfully functionary–and not a promotion. I don’t know how the Librarian runs things, but it’s not exactly industry standard to lock someone out of their email account when you’re promoting them.
Notwithstanding the Librarian’s press release on Friday, we now know that Pallante turned down the “promotion” and has now resigned.
Thanks to the vigilant journalist Robert Levine, we now have access to the memorandum from the Librarian of Congress to Maria Pallante that prompted her resignation. And it sure looks like what’s called a “constructive termination” to me. (See California jury instructions for “constructive discharge” or “constructive termination”.)
The essence of constructive termination is that it is essentially the same as firing the person, except you don’t. You just move them out of their current responsibilities, give them tasks for which they are unsuited or that would radically underutilize their talents, move them to different surroundings or offices, take away their staff, and severely limit their contact with others, especially persons senior to the person doing the constructive termination.
The idea is that while you haven’t actually terminated them, you’ve “made their lives miserable” and created a hostile work environment that any reasonable person would resign from.
This is usually done in retaliation for something the employee has done that angered their boss–you know, like writing a memo for Members of Congress against full work licensing or opposing the FCC’s position on set top boxes.
The in house lawyers usually manage to head off this kind of thing at the pass, but occasionally an inexperienced executive loses their mind and walks right into a constructive termination situation because they are too bull headed to listen to their lawyers. Those cases are costly and usually nasty.
So here’s the relevant parts of that memo from the Librarian of Congress to Pallante:
Effective today, I am reassigning you to the position of Senior Advisor to the Librarian [meaningless title–check]. I need your expertise on the application of copyright law as I plan for the Library to expand its service to the American people by making the national collection as widely accessible as possible and ensuring that it includes digital works as well as traditional materials. I want to be sure that we execute these plans in full consideration of both the special provisions that copyright law makes for the Library of Congress and our responsibilities to copyright owners. Your expertise will be very helpful in accomplishing these goals. [That last is the kind of thing you put in one of these memos when you know the opposite is true. If her expertise was so gosh darned helpful, then why is she being moved?]
According to analysis from the HathiTrust [a repository of digitized works from Google Books and the Internet Archive that was sued by the Authors Guild], as many as 50% of the books published in the U.S. between 1923 and 1963 may be in the public domain. To maximize our ability to make the national collection available online, the Library needs a well-defined, efficient procedure for determining the rights status of books first published between 1923-1968.
Please complete an analysis of the various strategies taken by other organizations in determining the copyright status of published U.S. books. Develop a legally sufficient and efficient procedure that Library reference staff could follow to clear books from this period for digitization and online distribution. Document the approach in an easily understood and visually engaging manner that issuitable for publishing on the Web….
I would like you to undertake a comprehensive study that identifies new and sustainable retail opportunities for the Library and examines best practices of retail operations in a variety of cultural institutions….[selling t-shirts?]
Please consult with David Mao about deadlines [enter the short leash]. Each week, please provide David and me with a report on the activities you’ve undertaken on these assignments. [Sounds like David Mao is her direct report, right? I thought this gig reported to the Librarian] If you need research assistance, contact David or me before tasking anyone. I do not anticipate that this assignment will require any communications with Members of Congress or congressional staff. I am arranging suitable office space for you and will arrange for you to complete the move from you’re your [sic] current office to the new space by Oct. 31, 2016.
And there you have it. Pretty good case for retaliation constructive termination, although we expected better from a senior government official.
You’re not in Kansas anymore.