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You Can’t Find What You Don’t Look For: Spotify May Not be the Only Source for Aaliyah Bootlegs

March 15, 2018 Leave a comment


Vanessa Okoth-Obbo’s eye-opening and must-read post about possible Aaliyah bootlegs on Spotify confirms a suspicious looking trend on digital music services–bootleggers finding another way to profit from lax policing by the “saviours of the music business” like Spotify.

As Vanessa writes in Factmag:’

Aside from her 1994 debut Age Ain’t Nothing but a Number, most of Aaliyah’s music has never officially been available on major streaming platforms. Ola [a fan Vanessa interviewed for the story] added ‘More Than A Woman’ to Old School Hip-Hop via the album R&B Divas (International Version), one of two compilations with the same title released simultaneously by, itseems, Universal Music International in 2007. While listening to the playlist from his phone last month, ‘More Than A Woman’ came on and Ola idly tapped the song’s title, something that normally takes the user to the source album. But instead of R&B Divas, which features music from artists like Rihanna and Amy Winehouse, Ola says he found himself looking at the full tracklist for what appeared to be a bootleg version of Aaliyah….

The sophistication of methods for getting songs onto the platform in the first place accounts for some of this. Spotify has agreements with most major labels who, in turn, handle the process for their signed artists, and an adjacent economy of content aggregators has sprung up to assist those with no direct label backing. Distributors like CD Baby and TuneCore help independent artists put their music on the leading digital services and collect any royalties resulting from streaming or sales, for varying fees.

It’s highly probable that the Aaliyah albums were bundled in via a similar third-party service…

Taking advantage of his Spotify Premium membership, Ola moved quickly to download his favorite Aaliyah songs to his device while he could. In a blunt reading of his action, it represents money out of someone’s pocket — business is business. Still, the chances of a fan turning down a chance to engage with their idols’ work are slim, in any era or arena.

That leaves Spotify, and whoever is responsible for uploading the Aaliyah albums without permission, open to scrutiny. For Gary Pierson, the matter is clear cut: a service is liable for what it hosts. “This can get more nuanced in the case of ‘user generated content’ such as Youtube videos, but for the streaming services it’s pretty clear,” he summarized. The streaming behemoth has a lot on the line: Spotify recently moved to go public, filing for a direct listing on the New York Stock Exchange in a money-generating step that some analysts have deemed unconventional. While the move could bring in much-needed capital to help the company resist copyright lawsuits (to which they are no stranger), a music streaming service cannot risk the stain of failing to protect artists’ interests…

Well…that ship has sailed.  We all know Spotify has demonstrated a lack of control over what’s on its systems for songs, and it increasingly looks like all of the services have fallen down on making sure that there’s no bootlegs in their catalogs.  So I ran the name “Aaliyah” through the SX Works NOI Lookup to see what came back–because if there’s no license for the sound recording, they can’t get an compulsory license for the song.  (If you’re new to the mass NOI problem, read my article from the American Bar Association Entertainment & Sports Lawyer).  

Sure enough, as you can see from the screen capture above, Google Amazon, Pandora and Spotify have all filed mass NOIs on Aaliyah, which means they are able to avoid  paying royalties on Aaliyah’s songs.  Some of these tracks may be from legitimate sources, but Vanessa’s story makes you wonder and points out yet again the need for the Copyright Office to take some responsibility for allowing these NOIs to be filed in a manner the Congress never intended.



How to Fix The Music Modernization Act’s Flawed “Audit” Clause — Music Tech Solutions

The famous old Russian proverb reminds us to trust but verify. That’s been the story in the record business since the cylindrical disc. All the “modernization” in the world will not soothe songwriter’s genetic suspicion of their accounting statements. Unfortunately, the controversial Music Modernization Act creates a quasi-governmental organization with no oversight, and that has weak and punitive audit clauses for songwriters.   We are told that songwriters should appreciate what they’re given because they never had audit rights under the current statutory license.  Of course, if you run the risk of being financially punished if you exercise a right, that’s not much of a right at all.  So let’s not do the usual two steps forward, three steps back.

via How to Fix The Music Modernization Act’s Flawed “Audit” Clause — Music Tech Solutions

You Can’t Find What You Don’t Look For: Big Tech Can’t Find Austin Artists

March 11, 2018 Leave a comment

You may not know the names Shinyribs, Guy Forsyth, Ray Wylie Hubbard, Grupo Fantasma, Carolyn Wonderland, Sara Hickman or Jimmy LaFave, but we do here in Austin.  You probably know Willie Nelson and so do we.  We even have a street named after Willie.

What else do these artists have in common aside from being some of Austin’s most loved and respected artists and songwriters?  Spotify, Google, Amazon, iHeart can’t seem to find them and have sent “address unknown” NOIs for all of them.  (This issue involves mechanical royalties, not SoundExchange royalties or ASCAP/BMI/SESAC royalties.  For the background on mass NOI loophole see my article from the American Bar Association Entertainment & Sports Lawyer.)  The more we research this issue, the less anyone will believe that the Music Modernization Act is going to solve the problem of not finding what you don’t look for.  (You can search for yourself in the SX Works NOI Lookup database (account registration required) that indexes the 60,000,000 plus “address unknown” notices to the Copyright Office from companies like Spotify, Google, Amazon–although interestingly, not Apple.  Apple seems to be able to run their service on a loophole-free basis.)

Realize that this is not the fault of the songwriter–it’s easy to find these songwriters if you look for them.  The problem is that the only place these services are required to look is in the public records of the Copyright Office and the songs will only be there if the songwriter registered them which they are not obligated to do in order to be paid mechanical royalties.  Seems kind of confusing and circular?  That’s because it is and because it is a loophole that hardly anyone ever used since 1976–up until Big Tech found it in 2016.

It is particularly galling that these giant companies all come to SXSW with a big presence but can’t seem to manage to pay our top songwriters.  And remember–it’s not that there is a deferred royalty or retroactive royalty–until these songwriters either prove that they actually already registered their songs in the Copyright Office or do in the future, they don’t get a royalty at all courtesy of a loophole in the Copyright Act and the abject failure of the Congress to do anything about it.  And remember–there is nothing that requires them to register in order to enjoy all the rights of a copyright owner, including the right to make Spotify rich and Google richer.

That’s right–81 notices on the late Jimmy LaFave:

Jimmy LaFave

Ray Wylie Hubbard has 126:

Ray Wylie Hubbard

Shinyribs got 57:


Carolyn Wonderland racked up 189:


Sara Hickman has 111:

Sara Hickman

Grupo Fantasma gets 62:


Guy Forsyth has 103:

Guy Forsyth

And Willie Nelson has 2,897:

Willie Nelson

So when ya’ll tech bros are in Austin this week, make sure you drop by if any of the songwriters you are stiffing are playing a show.  You could even tip.  Maybe you can find them in the SXSW show listings.

And enjoy your visit.

@musicbizworld: Universal Commits to Sharing Stock Sale Proceeds with Artists

March 11, 2018 Leave a comment

According to Music Business Worldwide, Universal has committed to sharing profits from the sale of Spotify stock.  The exact quote is:


Sources close to Vivendi-owned UMG suggest it may have been corporately restricted from making a hypothetical public statement on the matter until Spotify officially confirmed its intention to float on the New York Stock Exchange.

This is great news and also is the right thing to do.  The trick is, of course, that someone has to buy Universal’s position in Spotify in the public market.

Selling large blocks of shares in the public markets is always a tricky business, but Spotify may have made it exponentially more difficult given the “direct public offering” structure of its IPO (more properly called a “DPO”).  I suspect that there will be a rush for the exits as holders of Spotify stock try to liquidate, and Universal could find itself selling alongside a fully-vested marketing consultant who left the company three years ago, artists who got shares, and of course all the other majors and Merlin.

If you believe as I do that the world of retail investing is not waiting for a Spotify IPO,  this kind of robust selling could cause the price to tank in the absence of buyers or result in the kind of volume patterns you see with some shares of preferred stock (which have the “z” designation after the share numbers on the day in the stock section).

The Vivendi and Universal treasury folk are very smart people, so I’m sure they will manage the sale of their stock with an eye to avoiding tanking the stock and maximizing profit, so their interests are aligned with their artists (and presumably songwriters, too).

The next problem that we will all have to deal with is the meme that Spotify is already promoting–the reason Spotify loses money is that royalties are too damn high.  I guess that means the royalties they’re not paying?  Followed closely behind (A) the reason they can’t pay songwriters is because songwriters hide from them (true story, read the F-1 at p. 20); (B) Spotify wants to eliminate the “middleman” (i.e., record companies) and good luck with that; and (C) if the music industry had just built a global rights database then, then everything would be fine so Spotify’s failure to pay royalties is really our fault.

And especially those pesky songwriters who hide from them.

Even if it may take a while to liquidate Universal’s position in Spotify, it is comforting that they’re committed to doing the right thing.

Thank You @RepGoodlatte for Getting the “Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA)” Passed in the House

February 27, 2018 Leave a comment

As the Google Transparency Project reports, Digital Media Association heaveyweight Google and its incumbent cronies like the Electronic Frontier Foundation, Engine Advocacy, the Center for Democracy and Technology, NetChoice and the Consumer Technology Association are out for blood to keep the legacy Communications Decency Act from being dragged into the 21st Century.


Miraculously, Google’s lobbying millions were no match for strong grassroots support behind Chairman Bob Goodlatte that got the much needed reform legislation over the goal line.

Remember this tense exchange between ex-Executive Chairman Eric “Uncle Sugar” Schmidt, Google’s head lawyer Kent “Loophole” Walker and a whistleblower at the Google shareholder meeting regarding Google’s opposition to the campaign to deny sex traffickers the safe harbor in the ancient Communications Decency Act:

Here’s the press release from the House Judiciary Committee:

The House of Representatives today passed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a product of the House Judiciary Committee. This legislation provides restitution for sex trafficking victims and enhances criminal penalties for websites that facilitate illegal prostitution or sex trafficking.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has issued the following statement:

Chairman Goodlatte: “Over the past year, the House Judiciary Committee has worked directly with prosecutors to understand how new legislation could help them enforce existing laws and hold bad actors accountable for sex trafficking online. We have also explored changes to the criminal code that would disincentivize websites from knowingly promoting or facilitating illegal prostitution. The summation of the Committee’s investigative work is FOSTA, a bill that gives restitution to victims and creates harsher penalties for bad actor websites that facilitate horrendous criminal acts. I believe the provisions in this legislation will make the internet safer and give victims the criminal and civil means to punish wrongdoers and move forward with their lives.”

What FOSTA does:

  • Holds Bad Actors Accountable: clarifies that section 230 of the CDA does NOT grant immunity to websites that facilitate sex trafficking.
  • Creates a New Federal Crime: websites that have the intent to promote or facilitate illegal prostitution can be prosecuted under the new 18 U.S.C 2421A created by the bill.
  • Increases Criminal Penalties:  prosecutors can seek higher penalties for websites who promote the illegal prostitution of 5 or more persons or act with reckless disregard for the fact that sex trafficking occurs on their website.
  • Enforces Existing Laws: allows state and local prosecutors to enforce sex trafficking statutes and the new 2421A.
  • Provides Restitution for Victims: gives victims of sex trafficking a pathway to sue bad actor websites for conduct violating the new criminal law, 2421A.

The House Judiciary Committee last year held a hearing to review the impact of the Communications Decency Act on sex trafficking online. In December 2017, the Committee approved FOSTA by voice vote.

@musicanswersnow Says We Can Do Better on Music Modernization Act

February 22, 2018 Comments off

If you’ve been following the insiders spinning the controversial Music Modernization Act, you will probably have heard them say things like this about the closed door negotiations leading up to the introduction of the bill:  “Don’t blame us! Not everyone can be at the table! But…NSAI, SONA, ASCAP and BMI were at the table representing “creator interests” and  endorse the MMA as well as the Songwriters Guild, Society of Composers & Lyricists, NARAS, AIMP and A2IM. So trust me!”

Remember English 101 and logical fallacies?  This particular piece of rhetoric is a threefer–let’s start with the fallacy of reductio ad absurdum.  No one ever said that every songwriter should have been at the table, just that the negotiations for the bill should not have been behind closed doors.  How about getting public comments, consultations, or even posting a link to a copy of the bill that you were trying to get petitions signed in support of–before you sent the petition or introduced the bill?  Or maybe giving members of these august organizations a chance to comment or suggest changes before you ask them to sign a petition that is premised on a bunch of glittering generalities strung together in a cover letter.  (Remember the “glittering generalities” fallacy? Maybe it’s a four-fer.)

Then there’s that old reliable, the “bandwagon” fallacy.  This is the “everyone else is running off a cliff, why don’t you?” fallacy.

And don’t forget to ask exactly how these organizations were empowered to “represent” their members in a negotiation that the members knew nothing about that produced work product they never saw until it was too late.

There’s one more fallacy in the statement–extra points if you can spot it.

There’s a reason why you studied fallacies in English comp–logical fallacies are arguments designed to lure you into agreeing with something or in this case supporting a bill that you don’t really understand.

Fortunately, MusicAnswers is not afraid to speak truth to power and to take on the threats and whisper campaigns.  This video is fallacy free:

Get on the Bus! Could the Music Modernization Act be the Trojan Horse for Orphan Works?

February 21, 2018 Comments off


orphanworks-net from Internet Archive

When you read through the Music Modernization Act’s prohibition on statutory damages, “reasonably diligent search” and global rights database clauses, you can’t help but think of the orphan works efforts from years past by some of the same cast of characters that is around the MMA in the Congress.

Orphan works–if you recall–was a bill that went down in flames after a similar omnibus type effort (and when I first came to loathe these omnibus plans that can easily be hijacked).  It created a huge backlash from the broader copyright community including the Illustrators Partnership, photographer groups, authors and indie labels.  Brad Holland of the Illustrators Partnership has an extensive post on the subject published on The Trichordist.

Since there is such broad based “agreement” around the Music Modernization Act and since the MMA already has orphan works type provisions, this fact will not be lost on people from the copyleft (such as Spotify lawyer Professor Christopher Sprigman who has written extensively on these concepts).

Wouldn’t it be odd and kind of hysterically funny to find that the much ballyhooed Music Modernization Act ends up really haveing nothing to do with music or modernization and becomes just a trojan horse for those old yearnings to be realized.

Good thing the city fellers are in charge.

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