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Guest Post by @theblakemorgan: Music’s Mentors and Heroes Get the Day They Deserve

IRM blake jerry

This is great day, and a huge victory for music makers. In a bipartisan move, Rep. Nadler (D-NY) and Rep. Issa (R-CA) have just introduced the “Classics Act,” H.R. 3301, which finally guarantees that music recorded before 1972 would receive payments from digital radio services. (Currently only sound recordings made after 1972 receive payments from digital radio services under some interpretations of federal law.)

This issue has been at the very center of the #IRespectMusic campaign, and I’m thrilled to see this bill come to fruition. It’s happened in great part, because of you. Each and every person connected to this campaign has had a hand in this victory, because the grass-roots pressure that continues to be put on our leaders is what wins the day, every time. So if you’ve signed the I Respect Music Petition, if you’ve taken a selfie with the hashtag, if you’ve written your representative, hosted an #IRespectMusic event in your town, shared posts, tweeted, any and all in between…you’ve helped win this great day.

This is such a powerful moment for two important reasons:

(1) All music makers should be paid for their work––but especially recorded music’s founding generation of music makers. These are our legacy artists of Jazz, Blues, R&B, and so many other genres. They’re our mentors, our heroes––artists who are now in their seventies or eighties––who’ve been incomprehensibly denied their right to be paid for their iconic contributions to our society. As many of you know, the great Lesley Gore was not only one of those iconic artists, she was my godmother, and it infuriated me to no end that she was denied payment for her priceless work. This crusade is not simply ideological or professional for me, it’s personal.

(2) This moment is also significant because for the first time, a major Congressional bill that benefits music makers is being endorsed by an entity from “the other side.” In this case, internet-radio giant Pandora. Many if not most of you know my own history with Pandora (if not, start here).

It would be hard to find anyone, anywhere, who’s been more consistently critical of them than I’ve been. However, by standing up for this bill and standing with music makers, Pandora is doing the right thing and, I congratulate them for that. As a smart person once said, “You don’t make peace with your friends, you make peace with your enemies.” So, if this is a sign that Pandora has seen the light and will move forward in partnership with the people who make their only product––music––then I’m grateful, and I welcome them to a new future. A future where each of us understands that music isn’t created in a vacuum. It’s created by music makers. And each of us music makers has the right to expect from our profession what others expect from their professions. That through hard work and determination, perspiration and inspiration, we’ll have the same fair shot to realize our dreams, answer our callings, support our families.

Ours is a profession built on commitment. And respect.

Our music mentors and heroes have known that for a long time. They’ve deserved this day for a long time.

I’m going to honor them by fighting for this bill with everything I have.

I respect my mentors. I respect my heroes.

I respect music.

@repjerrynadler: Reps. Nadler, @DarrellIssa Pre-1972 Copyright Fix with Introduction of CLASSICS Act — Artist Rights Watch

WASHINGTON, D.C. — Today, Ranking Member Jerrold Nadler (D-NY) and Chairman Darrell Issa (R-CA) of the House Judiciary Subcommittee for Courts, Intellectual Property and the Internet introduced bipartisan legislation to close a long-standing gap in federal copyright law. The Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (the CLASSICS Act), H.R. 3301, resolves uncertainty over the copyright protections afforded to sound recordings made before 1972 by bringing these recordings into the federal copyright system and ensuring that digital transmissions of both pre- and post-1972 recordings are treated uniformly.

The CLASSICS Act serves as an update to the “pre-72 treatment” of the Fair Play Fair Pay Act – a broader music licensing bill introduced by Chairman Issa and Ranking Member Nadler earlier this Congress – and represents a broad consensus from a variety of stakeholders across the music landscape.

Congressman Jerrold Nadler: “For years, we have been working to ensure royalty payments for artists who recorded many of our great musical classics before 1972. The Fair Play Fair Pay Act set down a clear marker on the need to resolve the dispute over pre-72 music, as we worked toward a long-term solution that benefits multiple stakeholders. The bill we are introducing today updates this Pre-72 provision, once and for all guaranteeing royalty payments for our great legacy artists while providing certainty for digital music services. Hopefully, this new measure will serve as an example of the consensus that can be reached between the creators and distributors of music as we work to comprehensively update our music licensing laws. Many of these older musicians are past their working years and have no other way to make ends meet. I’m thankful to the supporters of this bill for recognizing that pre-72 recordings have value and that those who create it should be paid regardless of their age.”

Congressman Darrell Issa: “This an important and overdue fix to the law that will help settle years of litigation and restore some equity to this inexplicable gap in our copyright system. It makes no sense that some of the most iconic artists of our time are left without the same federal copyright protections afforded to their modern counterparts. This bill is the product of a great deal of work to build consensus across party lines and varying interests all-over the music and entertainment landscapes on how to best resolve this long-standing problem. I’m very proud of the work we’ve done here. It will go a long way helping bring music licensing laws into the twenty-first century.”

The bill is introduced with the support of stakeholders across the music and entertainment industry including American Association of Independent Music, the Recording Industry Association of America, Pandora, musicFIRST, the Internet Association, the GRAMMYs, SoundExchange, Screen Actors Guild‐American Federation of Television and Radio Artists, American Federation of Musicians, the Content Creators Coalition, the Future of Music Coalition, the Rhythm and Blues Foundation, and the Living Legends Foundation. The bill is also supported by several noted artists, many of whom spoke out in support of the CLASSICS Act.

In addition to Chairman Issa and Ranking Member Nadler, Representatives John Conyers (D-MI), Marsha Blackburn (R-TN), Tom Rooney (R-FL), and Ted Deutch (D-FL) joined as original co-sponsors to the legislation.

BACKGROUND INFORMATION AND ADDITIONAL RESOURCES:

Congress made sound recordings eligible for federal copyright protection with the Sound Recording Amendment of 1971, but the law as passed only applied to works created on or after February 15, 1972. Sound recordings made before 1972 were excluded from federal copyright protection

This gap has meant that different recordings made before 1972 have been subject to an inconsistent patchwork of different laws, creating significant uncertainty for rights holders music creators, and distributors, including digital streaming services, who wish to be able to fairly compensate artists and utilize these recordings.

The differing treatment of pre and post 1972 was an inexplicable and arbitrary oversight on the part of Congress. The U.S. Copyright Office has expressed their bewilderment with the decision, writing in their recent report on federal copyright protections for pre-1972 sound recordings that “Congress did not articulate grounds for leaving pre-1972 sound recordings outside the federal scheme and there is very little information as to why it did so.”

This gap has meant that updates to copyright law and new protections extended to sound recordings under the Copyright Act of 1976 and the Digital Millennium Copyright Act have excluded pre-1972 recordings. The most significant of these being the ‘safe harbor’ provisions for online piracy and ‘compulsory licenses’ made available for internet and satellite radio streaming.

Quotes of praise for the CLASSICS Act:

“This is a great step forward for legacy artists. Thank you to Representatives Issa and Nadler for recognizing that music made before 1972 is just as important and valued as post-1972 music.” — Mary Wilson, The Supremes

“I am overjoyed and extraordinarily grateful for Congressmen Issa and Nadler’s bipartisan relentless efforts to correct an inequality in the law that discriminates against myself and my peers– the legacy artists who recorded our hit records prior to 1972. It is has been unfair and outrageous that the artists, such as myself, who recorded some of our country’s most iconic music, have been forced to resort to lawsuits in order to get paid for the commercial use of their recordings. It is phenomenal that finally there is light shining at the end of this very long tunnel we’ve been looking at for so long. Knowing there is a consensus agreement to resolve any portion of this outrageous problem makes me proud and furthers my hope that I will still be alive to see the other issues Reps. Nadler and Issa have championed in the Fair Play Fair Pay Act come to similar positive bipartisan resolution and conclusion.” — Sam Moore

“I have found so much inspiration in the songs of the past, the songs I grew up with. The least – the very least – I could do is show them respect and honor them by urging Congress to fix the law so that they can get paid by digital radio. That’s why this bill is so important.” — Melissa Etheridge

“Every artist making music today stands on the musical shoulders of those who came before them. I would not be doing what I do if it weren’t for the heritage acts I grew up listening to, idolizing and trying to emulate. The fact that these amazing artists are not getting compensated for their indelible work and profound influence is simply unfathomable to me, and must be fixed. I am grateful to the sponsors of this bill for finally trying to even the scales, as there is no future in music without honoring the past.” — Dave Koz

“It’s a travesty that artists who shaped our creative minds and inspired us to want to play music in the first place are not being  acknowledged and compensated for the music they gave us.  I’m hopeful this important legislation will address this issue for all time.” — Carlene Carter, Singer-Songwriter, Daughter of country music legends June Carter Cash and Carl Smith, stepdaughter of Johnny Cash, and granddaughter of “Mother” Maybelle Carter of the original historic Carter Family

“The fact U.S., copyright protection does not apply sound recordings made prior to February 15, 1972 makes absolutely no sense.   Early rockers like me and my peers are on heavy rotation these days on popular oldies channels and on digital radio services.  And unlike many other platforms, we’re not compensated for it. How is that fair? It’s our music that attracting listeners and thus we should be paid.   I’m grateful for the leadership of Reps. Issa and Nadler and their efforts to fix this enormous injustice with this important bill.” — Steve Cropper, legendary guitarist, songwriter and producer

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via @repjerrynadler: Reps. Nadler, @DarrellIssa Pre-1972 Copyright Fix with Introduction of CLASSICS Act — Artist Rights Watch

Why Spotify Needs A Magistrate

Spotify was served in federal court in Nashville with two new lawsuits for massive copyright infringement by parties represented by Richard Busch (who has a strong track record in the area).  Based on the allegations in the complaint and reports about what appear to be breaches of Spotify’s recently concluded settlement with NMPA, it seems abundantly clear that when it comes to mechanical royalties, the company is simply not getting it done.

It must be asked, where is the board? Who is minding the store at Spotify? One conclusion that the latest litigation suggests is that Spotify’s future will be a lot like Napster–endless litigation from songwriters and publishers who are either not part of the settlements because they opted out or whose works were infringed recently and are not picked up by any settlement.  This should give any board of directors pause–not to mention a gut check with their D&O insurance company.

But what about the songwriters who don’t want to go through the litigation maze and just want to be paid fairly when Spotify plays their songs?  As long as Spotify takes a cavalier attitude–even in the face of massive litigation–no one can trust the company to do the right thing.

As Matt Pincus told the New York Times in a different, but relevant, context: “The more controversies [Spotify] have that have a moral underpinning to them, the more of a problem they will have in the bigger fight.”

Not only does Spotify have the “black hat” problem with songs and songwriters, they also make people wonder about their reporting and licensing on sound recordings and artists.  If Spotify’s accounting on songs is so sloppy and the company is either so slow or so unwilling to fix themselves, how can they possibly be doing it perfectly on sound recordings?

There is a solution to this that one would think both sides would welcome–a court appointed federal magistrate to oversee an independent third party rendering Spotify’s royalty statements and handling its licensing.  There is an apocryphal story that Goldman Sachs partners are under continual audit by the IRS by means of an IRS office inside Goldman.  While that may seem oppressive if true, at least a Goldman partner would know that they were already clean with the IRS.

If a court ordered a federal magistrate to review Spotify’s royalty reporting for say the next 10 years, songwriters might actually get paid and the Spotify board and their insurance company could breathe easier.  Not to mention the implicated employees.

Tim Westergren Steps Down at Pandora

July 18, 2017 1 comment

In a reshuffle of Pandora’s executive team, founder Tim Westergren is stepping down as Pandora’s CEO along with other senior executives.  This follows a series of missteps that have gotten significant amounts of ink, including from my own pen over the years.

It is important to remember that Tim worked very, very hard to turn his music genome idea into a public company.  The core idea behind Pandora, then Savage Beast, was a very cool idea which I was impressed by when he demoed it for me when I worked in Silicon Valley.  Unfortunately or perhaps fortunately for Tim he missed the Dot Bomb Boom which probably added a couple years onto his time to market but separated him from the no-idea Socks.com phenomenon.  A lesser man might have been deterred by these uncontrollable market headwinds, and believe me, many were.

Tim brought his company to the public markets and wrote some very large checks for the industry as a whole.  While we can argue with some of Pandora’s methods and its inconceivably silly lobbying strategy (if you can call it that), the fact is if there had been no Tim Westergren, it’s likely that there would never have been a Pandora and none of the good that has come from that company.

Do not underestimate what a colossal bear it is to do what Tim did.  It’s hard to launch a digital music service, it’s hard to deal with our industry as a whole, it’s hard to walk the line of both supporting artists and satisfying investors.  It’s hard to make payroll, it’s hard to make rent, it’s hard to deal with the panoply of incomparably untrustworthy jerks surrounding a CEO in a public company.

But then as a great man once said, why does Rice play Texas?

Tim made some mistakes but he did a lot of good, too.  If you’re looking for perfection, you’re not going to find it in this life.  We should wish him well and remember one thing.

What comes next from Pandora may make the past look like a walk in the park.  We shall see.

Hey Alexa, Where’s My Money? Address Unknown Update Courtesy of Paperchain

July 17, 2017 1 comment

We get an update this week on the total “address unknown” mass NOIs filed with the Copyright Office for the royalty-free windfall loophole.  This time we have to thank our our friends at Paperchain in Sydney for doing the work of decompressing the massive numbers of unsearchable compressed files posted on the Copyright Office website.  As you can see, there’s been an increase of approximately 70% since January 2017.   (For background, see my article.)

As you can see, Amazon is still far and away the leader in this latest loophole designed to stiff songwriters, followed closely by Google.  However, Spotify is moving on up.  Spotify does get extra points for starting late in March 2017, but they are catching up fast filing over 5,000,000 as of last month.

To put this in context–the Copyright Office as recently as September 2015 posted these “address unknown” NOIs in a single searchable PDF.  However, the Copyright Office  apparently changed the practice abruptly in early 2016 once the Big Tech hammer came down.  Based on the last PDF I could find, the total number of “address unknown” NOIs filed with the copyright office from January 2010 to September 2015 was approximately 4,800.

NOI 2015 Era Date Detail

Compare that approximately 4,800 in five years to approximately 45 million in 18 months.

Notable in its absence:  Apple Music has not filed a single address unknown NOI.  Somehow Apple seems satisfied with their licensing practice based on an absence of a single NOI.

NOI Table
Licensee Paperchain 4/16-6/17
Total 45,856,225
Amazon Digital Services 23,977,548
Google, Inc. 10,386,238
Spotify 5,020,002
Microsoft 3,522,100
iHeart Communications 1,565,763
Pandora Media, Inc. 1,316,512
The Overflow.com Inc. 66,326

@GTP_updates Report on “Google Academics, Inc.”

July 11, 2017 1 comment

Ever wonder why it is that some academics seem to be as close to Google as 1 is to 2?  The Google Transparency Project has released a fascinating report and searchable database of papers written by academics funded by Google (according to the group’s methodology).  This is particularly timely given the “fake news” hot topic and the new book by Sharyl Attkisson all about manufactured information in our astroturf culture entitled The Smear: How Shady Political Operatives and Fake News Control What You See, What You Think, and How You Vote.

Because make no mistake–Google’s multimillion dollar influence peddling campaign on campus is all about influencing regulators and lawmakers.  Yes, just like Big Pharma, “Google Academics” funnels big bucks to shape authority figures in Google’s image for 329 papers that the group was able to identify.  The epitoma suprema of factiness.

Indirect Funding

Direct Funding

Total

Funding not acknowledged

131

85

216

Funding acknowledged

29

94

113

150

179

329

Source:  Google Academics, Inc.

As noted in the Google Academics, Inc. research report (at p1):

[Google] has cultivated a college-like atmosphere, offering yellow bicycles for employees to ride around its sprawling campus. Its partnerships with Carnegie Mellon University are so extensive that a Google office is housed on the school’s campus.

Behind the scenes, however, Google has exercised an increasingly pernicious influence on academic research, paying millions of dollars each year to academics and scholars who produce papers that support its business and policy goals. An in-depth examination by the Google Transparency Project identified 329 research papers published between 2005 and 2017 on public policy matters of interest to Google that were in some way funded by the company.

In more than half of those cases (54%), academics were directly funded by Google. The remainder worked for, or were affiliated with, groups or institutions that were funded by Google. In the majority of cases, readers of the papers would not have been aware of the corporate funding: Academics did not disclose the Google funding in two-thirds of cases (66%). Authors failed to disclose funding even when they were directly funded by Google in more than a quarter (26%) of cases.

For example–take Jonathan Band.  Mr. Band is a registered lobbyist for MIC Coalition member the Computer and Communications Industry Association, the Library Copyright Alliance and Yahoo! Inc. and until recently was a lobbyist for Visa and the Net Coalition.  According to the Google Academics database, Mr. Band authored no fewer than ten academic papers supporting Google’s views, six of which mentioned Google in the title.

Remember Annmarie Bridy, one of the defenders of the current Librarian of Congress after what I believe was the retaliatory firing of the Register of Copyrights?  Professor Bridy has two papers in the Google Academics database.

Marvin Ammori of the Fight for the Future crowd?  Nine papers.

Mark Lemley of the Durie Tangri law firm (a go-to outside law firm for Google’s moves against creators (especially authors) and chief defender of the Goldieblox shenanigans)?  12 papers written or co-written in the Google Academics database.

We now have another valuable insight into Google’s influence peddling thanks to the Google Transparency Project.

It was Larry Page’s middle-of-the-night insight that hyperlinks could be used like academic citations to determine the usefulness of information that famously gave rise to Google. Now Google is creating a universe of paid-for citations with which to advance its policy interests.

 

 

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Spotify’s “Fake Artist” Issue and Other Problems at Scale — Music Tech Solutions

Spotify just can’t seem to catch a break in the artist community.  A story broke on Vulture evidently based on a Music Business Worldwide post alleging (and I’m paraphrasing) that (1) Spotify commissions artists to cover hits of the day and (2) there’s a lot of sketchy material on Spotify that trades on confusing misspellings, “tributes” and other ways of tricking users into listening to at least 30 seconds of a recording.  Which means that Spotify isn’t that different than the rest of the Internet.  (Thank you DARPA, the people who gave you the Internet.  And Agent Orange.  The real one.)

Spotify of course has issued a denial that I find to be Nixonian in its parsing.  Let’s not go crazy on this, but here’s the first part, according to Billboard:

“We do not and have never created ‘fake’ artists and put them on Spotify playlists. Categorically untrue, full stop,” a Spotify spokesperson wrote in an email.

Nobody said Spotify “creates” “‘fake artists,’” and the accusation was that the fake artists were on the service AND on some playlists, not just playlists.  The allegation is that Spotify commissions recordings.

“We pay royalties — sound and publishing — for all tracks on Spotify, and for everything we playlist. [If Spotify commissioned the fake tracks, they would also “pay royalties”.]  We do not own rights, we’re not a label, all our music is licensed from rightsholders and we pay them — we don’t pay ourselves.”

Notice the switch to “rights holders” which would include either publishing or sound recordings.  If Spotify commissioned fake artists they would not need to “own rights” and they could easily have “licensed” the fake artists recordings.  Cover songs would require an…ahem…NOI for the compulsory license.  And the commission payment could go to the artist as a buyout so Spotify would “pay them”.  If the object was to increase traffic for their ad supported service, commissioning recordings would both increase traffic AND reduce the prorata share of advertising revenue by making the denominator larger for everyone with a  revenue share during that accounting period.  I don’t want to go too far down that rabbit hole, but there are some odd loose ends.

Leave the holes in Spotify’s denial to the side.  The core problem identified by the Vulture post is the same for Spotify as it is for Google, YouTube, Facebook, all the other Internet companies that require “scale” to succeed, and which are, one way or another, hell bent on being monopolists.  The second part of Spotify’s denial in Billboard could apply to this lack of monitoring:

“As we grow there will always be people who try to game the system. We have a team in place to constantly monitor the service to flag any activity that could be seen as fraudulent or misleading to our users.”

Maybe that “team” could have a role in “monitoring the service” for tracks beforethe recordings get on the service rather than after.  Noah built the Ark before the rain.

It must be said that it sounds a bit implausible that Spotify would commission this type of recording to avoid paying artist royalties on the fake tracks.  Such an affirmative act would require a commercially tortured logic because the royalty offset on those specific tracks would be so tiny that the cost of the commissioned recordings would have to be very, very low.  One guy with Garageband in Mom’s basement kind of low.  How much the prorata revenue share would be reduced is hard to know from the outside.

But even if Spotify doesn’t hire studio musicians to perform “fake hits”, it appears that they are allowing a lot of sketchy recordings onto the service.  One might ask how those recordings get there in the first place.  I would bet that the explanation is pretty much that nobody bothers to check before the recordings are posted (or “ingested” in the vernacular, if you can stand that word).

So while there is a major difference in degree of harm, there isn’t a great deal of difference between what seems to be happening on Spotify with sketchy recordings and the links to illegal materials that the Canadian Supreme Court just blocked on Google Search, promoting the sale of illegal drugs for which Google paid a $500,000,000 fine and narrowly avoided prison, ISIS recruiting for which Google lost a chunk of market cap (at least for a while), human trafficking on Craig’s List and fake news on Facebook.  Each of these services operate at scale and they seem to have the same problem:  No one is minding the store and there are no or poorly enforced standards and practices that are only enforced after the harm has occurred.

The other trait that all these companies have in common to one degree or another is that they are all at least dominant if not monopolies in their markets.

Remember–on May 12, 2014, Spotify’s director of economics Will Page gave a presentation at the Music Biz Conference in Nashville.  As reported by Billboard, Will Page gave the audience a good deal of evidence of Spotify’s domination of the online music market:

Spotify claims to have represented one out of every ten dollars record labels earned in the first quarter….Page’s claim shows the speed at which subscription services are gaining share of the U.S. market. According to IFPI data, all subscription services accounted for 10.2 percent of U.S. recorded music revenue in 2014. If Spotify had a 10-percent share in the first quarter, it’s safe to say the overall subscription share is well above the 10.2 percent registered last year.

These numbers suggest that while Spotify may have a significant share of overall U.S. recorded music revenue, Spotify is clearly dominant if not a monopoly in the global subscription market with its now 100 million plus users and probably is at least dominant if not a monopoly in the U.S. music subscription market.

So how does Apple address these problems?  If you consult the iTunes Style Guide, you’ll see that iTunes expressly prohibits the use of search terms or keywords in track title metadata (like “Rock Pop Indie Rock”) or an artist name (like “Aerosmith Draw the Line).  Audio files have to match track titles on each album delivered.  “All track titles performed by the same artist on an album must be unique, except for different versions of the same track that are differentiated by Parental Advisory tags.“  And most importantly, perhaps, “the name of the original artist must not be displayed in any artist field on the track level or the album level.”  Why these rules?  One reason might be that Tunecore has encouraged their users for years to use covers as a way of getting noticed in searches on music services (with suitable admonishments to not “trick” fans).

Let’s face it–there’s only one way to keep your service clean.  Don’t let the bad stuff on in the first place.  You may think that it should be self evident that allowing sketchy recordings, ISIS videos or human trafficking on your service is a bad thing.  You may think that it should be self evident that allowing someone to change a letter in an artist’s name to trade on their reputation is a bad thing–not that different from typo squatting.  You may think that it is self evident that promoting the sale of illegal drugs is a bad thing.  And you may think that anyone who wants to engage in commerce with the legitimate commercial community, much less the artist community, wouldn’t allow these travesties into their business.

But you would be wrong.  Probably because you don’t worship at the alter of the great god Scale.

via Spotify’s “Fake Artist” Issue and Other Problems at Scale — Music Tech Solutions

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