What’s the Rush? The Music Modernization Act is Not Ready for Prime Time

The powers that be seem to be very, very interested in jamming the Music Modernization Act through Congress with as little public commentary as possible.  Casual polling from various mailing lists is being presented as “X thousand songwriters are on the bandwagon for MMA”, but when you look at the various “petitions” that were “signed” by unknown persons, doubts start to surface on just how informed the consent really was.

First, if you read the actual cover letter solicitation that went to songwriters, it was rare that the information provided was more than glittering generalities strung together.  At best, individual cover letters from the sending organization seeking to rally its membership narrowly emphasized the parts of the bill that affected its membership most directly, or that the particular org’s advocacy people wanted to get credit for.  Then there was a 50 words or less description of the rest of the 100 page bill.  I found only one organization that actually sent a link to the bill (which is understandable because most of the petition solicitations I saw were sent before a public copy of the bill was available.)

This lack of information may explain why there was a less than 3% response rate based on public estimates of membership totals.  Your average Etsy newsletter probably has a higher response rate than a solicitation to have your name used to justify passing the biggest change to the Copyright Act since the DMCA.

Reading through the MMA, there are many rather obvious mistakes in drafting that one would expect in a situation where there was a lot of inbred commentary, secret drafting sessions and apparently a greater concern with getting it fast than getting it right.  Let’s take the collective’s board of directors for an example.  Now remember–the formation of the actual collective as a non-profit organization will have to be done under state law in order to qualify to be the collective.

My read on the board of directors section of MMA is that the government can decide on how a winner must be structured in order for the government to pick the winner (which frankly is rather pre-determined in the MMA), but even so, the organization will have to comply with state business organization laws which is how it will be formed.

Here’s the description of the board of directors in the MMA based on the posted draft:

The mechanical licensing collective shall have a board of directors consisting of 10 voting members and 3 nonvoting members, as follows:

‘‘(I) Eight voting members shall be music publishers to which songwriters have assigned exclusive rights of reproduction and distribution of musical works

That total has changed to 14 according to news reports.  So as anyone who formed a club for their treehouse can tell you, been in a band, or was a first-year corporate associate or an actual songwriter who does cowrites, having an even number of votes on anything is not a good idea and can lead to ties.  Just sayin’.

But the real problem is beyond the ill-advised to the potentially illegal, or at least not enforceable under state law.  The 50 states have a preference for sentient beings populating boards of directors in their corporations, including and maybe especially nonprofits.  According to this draft, the board consists of “music publishers”.   I know what they probably meant, but it’s not what they said.  Plus, board composition is something that is usually handled in bylaws or by a voting agreement.

This would be an easy fix, just say Publisher A, B, C, D, E, F, G and H (by name) are chosen by the government to be entitled to board seats, and they shall each designate a natural person (legalese for sentient being) to represent them on the board.  Of course, changing those allocations would require an act of Congress, like if Pub D bought Pub H, for example.

Another inexplicable lapse is in the direction to the Register of Copyrights of which winner the Register is to select and which loser the Register is to reject for both the collective and the digital licensee coordinator (who represents Big Tech), both of whom get an antitrust exemption.

The criteria in each case is “endorsed by and enjoys substantial support from [copyright owners of musical works/digital music providers] that together represent the greatest share of the [licensor/licensee] market…”  These are rather meaningless words and are phrased in the passive voice, that Washington favorite (you know, the old standby “Mistakes were made”).  What is this based on?  All the arguments over market share that take place every year?  Based on songs or revenue, etc., etc.  And who gets to decide?

These are fundamental mistakes and are the kinds of screwups that smart people make when they are under pressure.  I just don’t understand what the big rush is to make the biggest change to the Copyright Act since the DMCA.

This legislation will affect the lives of every songwriter in the world for every song ever written or that ever will be written.   The last compulsory license was created by the government in 1909, so we have every reason to believe that this legislation could last one hundred years.  Or said another way, long after the Spotify IPO.

We should also be clear that if you thought that this legislation was getting the government out of the songwriter business, you need to buy a vowel.  The government is more involved than ever before.  We are way past broccoli now.

If it takes more thought and more time, then it should. The bill is fundamentally not ready for prime time and it really needs to be.

You Can’t Find What You Don’t Look For: How Big Tech Rips off New Orleans Songwriters with Mass NOIs

March 6, 2018 3 comments

MTP readers will be familiar with the morass known as the “address unknown” mass NOIs, the loophole in the 1976 Copyright Act that Big Tech companies like Spotify, Google and Amazon have been leveraging for nearly two years.  This loopholeapalooza has resulted in well over 60,000,000 notices filed by these whingers with the U.S. Copyright Office–giving the biggest companies in commercial history a free ride on mechanical royalties otherwise payable to songwriters and music publishers.   You read that right–SIXTY MILLION NOIs.

That’s right–it’s not that the royalty is deferred or paid retroactively.  The royalty is never paid.  It must be said that the reason this royalty is taken from songwriters and publishers is because the Copyright Office (and the Congress) allows these filings to happen, indeed makes it easy for it to happen.  They do this while they take months to “examine” the very copyright registrations that would prevent the royalty free “license” ever coming into existence, yet accept millions of “address unknown” uncritically.    (For a more complete background on this absurdity, see my article on the subject from the American Bar Association Entertainment & Sports Lawyer.)

This is important for a number of reasons–and as I will show, affects songwriters at both ends of the food chain from the most played like Ed Sheeran and Bruno Mars to some of our most important classic artists like Rebirth Jazz Band, The Neville Brothers, New Orleans Nightcrawlers and the Hot 8.  This is particularly relevant to me as we remember many of these players who came to Austin during the storm.  Je me souviens.

Not only does the Copyright Office uncritically accept these “address unknown” NOIs for our most vital songwriters, they also post them in a manner that makes the posting essentially unusable.  Each NOI is posted separately in massive compressed files, so no individual songwriter is likely to be able to decompress and index them to even know if their song is included, correctly or incorrectly.  This takes looking the other way to a whole new level.

Thankfully, SoundExchange has created a searchable index of all the “address unknown” NOIs that have been filed as of a few weeks ago, which I imagine will be updated from time to time as the Copyright Office posts about 50,000 a week.  (See SX Works NOI Lookup if you want to see if your songs are in there.)  As Andrew Orlowski has reported in The Register, Spotify claims not to be able to find Ed Sheeran–the most streamed artist on Spotify for 2017.  I have analyzed in a Trichordist guest post the Top 5 songs on the Billboard Hot 100 since January 1, 2018 (the day that the despised safe harbor begins in the controversial Music Modernization Act), but now let’s see if we can find some of the well-known New Orleans artists and songwriters in the NOI Lookup.

The Neville Brothers?  222 Neville songs across Spotify, Google, Amazon and iHeart.

Neville Brothers.png

The Meters? 186 songs also “licensed” by Spotify, Google, Amazon.


Allen Toussaint?  Oh yes.


Preservation Hall Jazz Band? 250 songs to Google, Spotify and Amazon.


And it goes on and on and on.  Remember–these are free licenses.

I want to emphasize that this loophole rip off is being done to artists from all over the country and indeed from all over the world, and that the Copyright Office is letting them get away with it.

The Music Modernization Act does not solve this problem–it just sweeps it under the rug.    Solving this problem would involve confronting Big Tech head on and it seems that the only people who are willing to do that are the songwriters and publishers like David Lowery, Melissa Ferrick, Bob Gaudio, Wixen Music Publishing and Bluewater Music Publishing who bring these cases against companies like Spotify.  You know “the litigation” that has created such a problem what the world needs is the Music Modernization Act.

Trust me–that legislation will not help all the songwriters who have been blatently stiffed by Big Tech once again.





You Can’t Find What You Don’t Look For: Spotify Still Can’t Find the #5 Record in the US — Artist Rights Watch

Blocboy Look Alive SX

The more things change…great news for BlocBoy JB, he made the Top 5 on Billboard’s Hot 100. The bad news…Spotify, Google and Amazon filed “address unknown” NOIs for his song which means these saviors of the music business just helped themselves to a royalty-free license for who knows how long. Yes, it’s right […]

via You Can’t Find What You Don’t Look For: Spotify Still Can’t Find the #5 Record in the US — Artist Rights Watch 

@andreworlowski: Spotify wants to go public but can’t find Ed Sheeran (to pay him) — Artist Rights Watch

Guest Post by @schneidermaria: An Open Letter to David Israelite of the NMPA, and Anyone Interested in the Music Modernization Act — The Trichordist — Artist Rights Watch

Here’s a guest post by 5-time Grammy winner Maria Schneider on the Trichordist that she says is in response to a letter from National Music Publishers Association head David Israelite about her critique of the Music Modernization Act that appeared on MusicTechPolicy and ARW

via Guest Post by @schneidermaria: An Open Letter to David Israelite of the NMPA, and Anyone Interested in the Music Modernization Act — The Trichordist — Artist Rights Watch

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.

The Music Modernization Act Could Make One Small Change in Favor of Songwriters: Put the Copyright Office on a Schedule — Music Tech Solutions

February 27, 2018 Leave a comment

There is one solution to the NOI loophole problem that is entirely within the power of the Congress to solve immediately–instruct the Librarian of Congress to require the Copyright Office to get the lead out on processing copyright registrations and create a rebuttable presumption that the Copyright Office has contact information for copyright owners.

via The Music Modernization Act Could Make One Small Change in Favor of Songwriters: Put the Copyright Office on a Schedule — Music Tech Solutions

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