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Ron Wyden’s Teachable Moment: Should one Senator be allowed to stop 415 Members of Congress on the Pre-72 Fix

June 27, 2018 Comments off

It’s rare that we get insight into just how sleazy the Congress can be–but Senator Ron Wyden is giving us all a guided tour when it comes to his singular dedication to screwing pre-72 artists.  There is a process in the Senate called a “hold” (see this memo from the Congressional Research Service describing the rules for holds) which can seriously slow down passage of legislation.  Any one senator can put a hold on any bill, and Senator Wyden appears to be threatening to put a hold on the Music Modernization Act if he doesn’t get significant changes to the pre-72 fix, probably before Thursday’s “markup.”

That would be the pre-72 fix in the CLASSICS Act that was just passed by 415 Members of the House of Representatives.  That’s right–ONE senator can replace the judgement of FOUR HUNDRED FIFTEEN elected representatives of the American people.  ONE senator can crush the hopes of thousands of pre-72 artists or their heirs, because some people have waited so long to get a fair shake from the Congress that they died.

Why would any senator do such a thing?  You can kind of understand this anti-democratic shenanigans on a controversial bill, or a bill that barely passed the House.  On this bill, however, I have to believe that Wyden’s threatened hold can only be explained by blatant cronyism and swamp fever.  And Oregonians need to know the dark side to Ron Wyden.

MTP readers will remember the story of Senator Ron Wyden (D-OR) and his descent into the swamp.  You might think, what’s a senator from Oregon doing up to his eyeballs in cronyism and the slime?  Easy answer–cheap hydroelectric power from Oregon’s part of the Columbia River that powers many huge data centers owned by…you guessed it…Google, Facebook, Amazon, Rackspace.  Cheap power that goes straight to their bottom line.

 

heres-steam-shooting-out-of-the-dalles-data-center-in-oregon-as-its-cooling-down

Columbia River water vapor burned by Google’s Data Center at The Dalles, Oregon

 

All get tax breaks of dubious value to Oregonians according to a state audit and cheap power, crowding out local businesses and residents.  Each job created by these highly automated data centers costs the local communities up to $800,000–which might make it worth it to pay the companies to stay away.

Google, Facebook, Amazon and Rackspace all are members of the Internet Association, home to Mr. Shoegazer who gives “voting with your feet” a whole new meaning.   Google and Amazon are also members of the Digital Media Association or “DiMA”.  And DiMA’s grubby little paws are all over the Music Modernization Act, particularly the blanket mechanical license which reads like tech industry lobbyists wrote it.

And Google’s grubby little paws are all over Public Knowledge and the Electronic Frontier Foundation, both card carrying members of the Google Shill List and both leading the charge against the CLASSICS Act, now part of the omnibus Music Modernization Act in the Senate.  Remember, the omnibus Music Modernization Act includes CLASSICS as the fix on the pre-72 loophole .  CLASSICS allows artists who recorded prior to 1972 and their heirs to benefit from digital royalties when their recordings are played on SiriusXM, Pandora or any other noninteractive radio platform.

Wyden has proposed an insanely complicated and unworkable alternative to the version of CLASSICS that got the Music Modernization Act passed in the House.  The only reason that anyone is taking him seriously is because of his threatened hold and he’s going to try to jam this philistine and nonsensical alternative right down the throats of all the artists who had their hopes lifted when the House passed the bill unanimously.

All that Wyden is doing is using the hold system to leverage his way into jacking with the copyright term and throwing a bone to Google, Lessig and the entire anti-copyright and anti-artist crew.

And here’s what he should get for it…

Nothing.

He should get nothing at all and should be sent packing.  Let him place his hold and see what happens.  He may be narcissistic enough to believe that he’s entitled to replace the vote of 415 of his colleagues with his own cronyism, but we don’t have to buy it.

Nothing.  He gets nothing.

 

@TerrenceHart: Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause? — Artist Rights Watch

May 31, 2018 Comments off

“I do believe that the intellectual property that you create is just that.  It’s property and you ought to be protected in the property that you create and that we all enjoy.”

Senator John Cornyn, U.S. Senate Committee on the Judiciary, May 15, 2018.

Unlike the CLASSICS Act and the approach recommended by the Copyright Office, the ACCESS to Recordings Act falls far short of Constitutional requirements and would likely open the federal government up to liability for takings claims.

via @TerrenceHart: Does the ACCESS to Recordings Act violate the Constitution’s Takings Clause? — Artist Rights Watch

Lessig & Co Miss the Point that Bait and Switch on MMA Will Burn Down the Cornfield

May 21, 2018 Comments off

In case you’ve missed it, Lester Lawrence Lessig III is reprising his role as Copyright’s Biggest Loser with an op-ed in Wired about the mythical interpretation of the copyright term in the CLASSICS Act that has been taken apart by David Lowery and Neil Turkewitz.  Corey Doctorow (that well known pre-#metoo x-ray poster of minor redaction fame) also got it completely backwards as illustrated in David Newhoff’s excellent post.

It is the motivation that is most interesting about Lessig’s preening, the 40 members of the professoriate (that includes a liberal sprinkling of Google Academics) following each other right off the bandwagon and Doctorow’s whinging.   They all seem to believe that somehow there will still be a “Music Modernization Act” if the pre-72 fix in CLASSICS is stripped out.  Doctorow blames Senator Hatch, Lessig blames the usual suspects (the phantom Mickey Mouse, of course), and the IP professors are just proving that lawyers can’t do math–yet again.

For example, Doctorow tells us:

Back in March, the House passed the Music Modernization Act, a welcome bill made it easier for musicians to get paid reliably for digital streaming.

So that is quite a sentence–the bill actually passed the House “back” in April, April 25, 2018 to be precise.  So that’s wrong.  I gather that since he’s objecting to the only part of the bill (the former CLASSICS Act) that addresses “musicians”, he meant to say “songwriters.”  So that’s wrong, too.  And of course, the bill does a whole lot more that one would think would warm Doctorow’s heart (and hips, presumably), like get rid of statutory damages and attorneys fees to stop litigants like David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music.

Both Lessig and Doctorow seem to make the assumption that CLASSICS can be stripped out of both the Senate version and the House version of the bill.  (It seems to have escaped Doctorow that Senator Hatch actually introduced the House version in the Senate and that the bill he likes that passed the House includes the pre-72 fix in CLASSICS.)  And without getting into who is right or wrong in their interpretation of the effect on the copyright term of pre-72 sound recordings, there is one thing that is the clear motivation for all this effort by the professoriate and the Google spin machine.

They intend to pass the safe harbors in the Music Modernization Act and get rid of the pre-72 loophole fix.  And they think the we will all go along with that.

They are, as usual, NUTS.

Stark raving mad.  The kind of people who see Mickey Mouse under the bed and post pictures of their pelvis dedicated to a woman they are in a flame war with.  (Move over Harvey Weinstein.)

Let me say it clearly–if they try to do this, if Google sends its shills up to Capitol Hill in hopes of a bait and switch in the Senate, the entire package will fail and it will be class action city.  But stripping out the pre-72 fix for the bait and switch is clearly what they are up to.

While you think about that, have a listen to a pre-72 recording of my friend John Baldry singing the Randy Newman classic “Let’s Burn Down the Cornfield” produced by Elton John.

We can listen to it burn…

 

 

 

@MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

May 18, 2018 Comments off

Otis Redding sat on the dock of the bay in 1967. Roy Orbison sang for the lonely in 1960. Miles Davis was kind of blue in 1959. These artists’ iconic recordings live on today and are frequently played across streaming services, satellite radio, and FM radio. Tell Congress to make Big Tech pay its fair share.

via @MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

@mikehuppe: “We are Making Major Progress on Music Licensing Reform – Together” #irespectmusic — Artist Rights Watch

May 6, 2018 Comments off

While several pieces of music legislation have been introduced in the Senate, there is not a single comprehensive package yet. We are encouraging our Senate allies to bring these many issues together into a single, comprehensive Music Modernization Act, like the bill passed in the House.

via @mikehuppe: “We are Making Major Progress on Music Licensing Reform – Together” #irespectmusic — Artist Rights Watch

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