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A Look at Christopher Sprigman’s Recent Record

July 16, 2019 Comments off
Sprigman 1

Sprigman Throws a Definition at Blake Morgan

The Spitting Image of the Modern Major General

MTP readers may remember the name Christopher Sprigman.  Most recently,  we have identified him as a counsel to Spotify in the “Nashville cases” brought against his firm’s client Spotify by four plaintiffs represented by well-known and successful artist rights attorney Richard Busch.   These were cases brought against Spotify in Nashville for claims of copyright infringement by independent publishers who opted out of both the NMPA settlement and the Lowery & Ferrick class actions.  (Just to be clear, Lowery had nothing to do with the Nashville cases.)

Sprigman PHV

Professor Sprigman also teaches at the New York University law school in New York and evidently has an of counsel relationship with the distinguished New York law firm Simpson Thatcher.  According to his law firm biography:

“Chris is a tenured faculty member and Co-Director of the Engelberg Center on Innovation Law and Policy at New York University School of Law, where he teaches intellectual property law, antitrust law, competition policy and comparative constitutional law.”

Simpson Thatcher is one of those ultra white-shoe corporate law firms, a very conservative reputation and also highly respected around the world.

Sprigman Lowery

Pot, meet kettle

Professor Sprigman has a history in copyright circles dating back to at least 2002, i.e., before he worked on Simpson Thatcher client Spotify.  His selection to represent Spotify may be explained as simply as Professor Lessig was not available, but it’s more likely that his past work informed his selection as is usually the case.  Nothing wrong with that.

Some of Sprigman’s academic writings can be found on his SSRN author profile.  At least a few of these papers (that we know of)  were co-funded by Google.  That Google connection evidently is a topic of some sensitivity with Professor Sprigman as it was that point that seems to have prompted his unprovoked and public comparison of David Lowery to Alex Jones.

Blake Alex

Aside from the depressing reliability of the Alex Jones Corollary to Godwin’s Law, this was both a shocking yet curious comparison.   Why Alex Jones, of all people?  What about Alex Jones is of relevance to David’s role in the artist rights struggle?  I am of the view that it carried with it an implied threat–Sprigman could get his buddies in Big Tech to deplatform David just like Alex Jones.  Why?   My guess is that it is because Sprigman apparently wants you to believe that David’s message was just as toxic to Twitter.   (David was not even involved in the initial Sprigman exchange at all and tells me he had no idea it was even going on.  He was on the road with Cracker and Camper Van Beethoven, you know, selling T-shirts like a good boy.)

Sprigman Lowery 2

The non denial denial

It All Starts with the Disney Fetish

Professor Sprigman has a long-term connection to Professor Lessig, beginning with a 2002 article “The Mouse the Ate the Public Domain” supporting Lessig’s losing argument in Eldred v. Ashcroft attacking the 1998 Copyright Term Extension Act.  (“Most artists, if pressed, will admit that the true mother of invention in the arts is not necessity, but theft.”  How very 1999.)

It will not be surprising to learn from the NYU alumni blog introducing Professor Sprigman that Lessig is his “mentor” (“Sprigman set a goal of writing an article within four months that he could take on the job market, if his mentor and the [Stanford Center for the Internet and Society]’s founder Lawrence Lessig deemed it satisfactory. The result was a paper that reintroduced the idea of formalities in copyright law. Its boldness won Lessig’s approval.”)  Ah, yes.  Fortune favors the “bold.”

A younger and perhaps bolder Sprigman held a 2003 fellowship at Stanford’s Center for the Internet and Society (founded by the very bold Lawrence Lessig III and later funded by the even bolder Google in 2006 with a $2 million gift).  This academic fellowship evidently produced his 2004 article “(Re)Formalizing Copyright” boldly published by Stanford and, in a nutshell, advocating a requirement of copyright registration.  (My view of this fascination that many of the Lessig crowd have with registrations is to create a giant loophole that would allow Big Tech to use “unregistered” copyrights (especially photographs) as they saw fit.  Boldly, of course.)

As a quick aside, MTP readers will recall that the “address unknown” NOI debacle makes clear that even if works are registered and readily available through searchable databases that currently exist, Google, Amazon, Spotify and some others cannot be trusted to look for the sainted registrations.  These companies appear not to have looked or not to have looked very hard before attesting that they had searched the Copyright Office records in their 70 million or so address unknown filings.  Even allocating 5 minutes per copyright for search time, it would have taken over 350,000,000 minutes (or 5,833,333 man-hours, 243,055 man-days or 665 man-years.  Roughly speaking.  Feel me?  Curiously, Apple never used the address unknown loophole.  It is unlikely that a registration-based system (which the US abandoned decades ago) would produce the promised results but would produce a substantial burden on all copyright owners, especially independents–not to mention the productivity loss to the Copyright Office itself.

This registration loophole is also a core Lessig concept that he pushed during the orphan works bills of the 2006-2008 period (see “Little Orphan Artworks”.  It is echoed in the Music Modernization Act with the requirements to register with the Mechanical Licensing Collective under Title I (at least if you want to be paid outside of the black box) and the registration requirements under Title II for pre-72 copyright owners imposed by Big Tech’s favorite senator, Ron Wyden.  Note neither requirement requires a formal copyright registration so doesn’t go as far as Lessig, Samuelson and Sprigman, but it’s headed that direction.

David Poe Woodward

Sprigman later was co-author with Lessig of the Creative Commons filing to “save” “Jewish cultural music” in 2005 orphan works consultation by Copyright Office.

creative-commons-2008-schedule-b ANNO

In 2006, Professor Sprigman was lead counsel with Lessig on the losing side in Kahle v. Ashcroft (later v. Gonzales) which unsuccessfully challenged the elimination of the renewal requirement under the 1992 Copyright Renewal Act.  He went on to write “The 99 Cent Question” in 2006 attacking iTunes pricing.

Association with Pamela Samuelson

Pamela Samuelson is another registration fan in the professoriate, so it was not unexpected that Samuelson and Sprigman would find each other.  Among his other accomplishments, Professor Sprigman was a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated registration (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).  (MTP readers will remember Samuelson and her husband the tech maven Robert Glushko from the Samuelson-Glushko IP units at various law schools in the US and Canada that consistently oppose artist rights.  A critic might say that the Samuelson-Glushko academic institutes are like Silicon Valley’s version of Confucius Institutes.)

The Copyright Principles Project is especially relevant to Professor Sprigman’s outburst regarding David Lowery because of what I would characterize as the utter failure of Pamela Samuelson to make an impact when she testified before the House Judiciary Committee’s IP subcommittee in 2013.  This missed opportunity was, I think, largely due to Lowery’s takedown of the “Project” that appeared in Politico hours before she testified which Chairman Goodlatte asked to be entered into the record of the hearing where it sits to this day.

Lowery Politico

It’s worth noting that there were no creator members of the Copyright Principles Project, and Samuelson was questioned sharply about this by the IP subcommittee–it sounded like staff had been fed the “Case Study for Consensus Building” without being told that an important group had been omitted from the “consensus”.  Her response was that she didn’t need any creator members on the Copyright Principles Project because she was herself an academic writer.  I think it’s fair to say that while I didn’t see any of the Members laugh out loud, her response was viewed as rather weak sauce in light of Lowery’s post in Politico.   That exchange appears to have led to Samuelson founding the “Authors Alliance” after the hearing evidently to shore up that shortcoming.  Too late for the Copyright Principles Project, however.

All Hail the Pirate King

Like his mentor Lessig, Professor Sprigman also seems to have an interest in defending the alleged benefits of piracy and apparently is a leader of the “IP without IP” movement (and co-author of the piracy apologia, The Knockoff Economy: How Imitation Sparks Innovation.)   (See also what we call the “pro-piracy” article “Let Them Eat Fake Cake: The Rational Weakness of China’s Anti-Counterfeiting Policy“.  “[M]ost of that harm [of counterfeits and piracy], at present and for the foreseeable future, falls on foreign manufacturers”–this means you, songwriters.)  He frequently writes on pro-piracy topics with Professor Kal Raustiala of the UCLA School of Law of all places.

It should come as no surprise then, that he represented Spotify in the Nashville cases.  He was co-counsel on Spotify’s papers (with Jeffrey Ostrow from Simpson Thatcher) famously making the losing argument that, in short, lead to the conclusion that there is no mechanical royalty for streaming (after the usual Lessig-esque Rube Goldberg-like logic back flips).  In Sprigman’s America, his Big Tech clients would not pay streaming mechanicals to songwriters at all, an issue that was emphatically put to rest in the Music Modernization Act.  (In a curious case of simultaneous creation, Techdirt came to almost the identically flimsy argument.)

David Poe Delete S

What Did We Ever Do to Him?

But before last week, Professor Sprigman most recently came onto the radar in his chairing of the American Law Institute’s Restatement of Copyright which many (including me) view as a political end-run around the legislative process.  Register of Copyright Karyn Temple said the Restatement of Copyright “appears to create a pseudo-version of the Copyright Act” and would establish a contrarian view of copyright under the mantle of the august American Law Institute.  It’s unclear to me who, if anyone, is financing the Restatement.  (MTP readers will recall The American Law Institute’s Restatement Scandal: The Futility of False “Unity”.)

Aside from the fact that the normal world is not waiting for the Restatement of Copyright, it is hard to understand how a person with such overtly toxic attitudes toward uppity artists like Blake Morgan, David Lowery and David Poe should–or would even want to–participate in drafting the Restatement.

Unless they had a reason.  Like providing a citable text holding that piracy is groovy, for example.  Originalists come not here.

As Kevin Madigan observed:

It’s not difficult to understand the creative community’s unease when taking a closer look at two of the projects leaders. The Restatement was originally the idea of Pamela Samuelson, a Professor of Law at UC Berkeley who is well known in the copyright academy as someone who has routinely advocated for a narrower scope of copyright protection. And while her knowledge and expertise in the field is unquestionable, her ability to take an objective approach to a project meant to influence important copyright law decisions is suspect.

While Professor Samuelson’s academic record reveals that she may not be the most suitable candidate to spearhead a restatement of copyright law, the project’s Reporters—those responsible for drafting the restatement—are led by Professor Chris Sprigman, whose work in academia and as a practicing attorney should undeniably disqualify him from this highly influential role.

Yet as of this writing, the American Law Institute still lists Professor Sprigman as the “reporter” of its Copyright Restatement project.

ALI Copyright

As one artist asked me of Sprigman, what drives him to be so consistently on the wrong side?  What did we ever do to him?

badbunny

(h/t to Fox of TO)

 

 

MTP Interview: #irespectmusic Tour Advocacy with @theBlakeMorgan

April 18, 2018 Comments off
An interesting interview with artist, songwriter, small business owner and advocate Blake Morgan about how he mixes his advocacy and touring as an artist, leveraging tour press for his advocacy work.
Castle:  You just came off of a West Coast tour with Tracy Bonham, how did that go?
Morgan: Honestly one of the best tours I’ve ever experienced. The audiences were amazing––we sold out almost all of the shows on the run––everyone was so engaged and energetic. And working with and alongside Tracy is a total thrill and an honor. The East Coast leg of our 2018 Tour kicks off in Boston in just a few weeks. I already can’t wait.
Castle:  There’s a balance between doing the music work for the fans and doing the advocacy work for what’s right.  How do you combine the two?
Morgan:  That’s true, it is a balancing act. But recently I’ve begun to see and experience it differently. I now see how my art and my advocacy work are related to each other, instead of different from each other, and I find myself welcoming the balancing act. I feel my job as an artist is to captivate my audience for however long I’ve asked for their attention. In my advocacy work I’ve found “justice” to be a pretty captivating force. So I bring my #IRespectMusic advocacy to my shows, on stage and off, and I now bring my guitar to Capitol Hill when I meet with members of Congress. I find that each––the art and the advocacy––underscores the other now, and I’m happy to be seen wearing both hats at the same time. 
Castle:  I noticed that you were getting questions in your tour press about your advocacy work.  How often did that subject come up?
Morgan: It comes up every time. With press, and with fans. People at shows bring #IRespectMusic signs, or ask me questions after the show about something music-related that they’ve read about this past week. They’re excited to talk to me about both my music and my music advocacy, and I’m excited to talk to them too. Same with music press––they want to talk about what I’m working on, musically, and about music rights, and what the new tour is about as well. I really love the blend.
Castle:  How did you handle those questions and how did the journalists feel about it?  Were they knowledgable?
Morgan: Well I handle them by telling the truth (as Mark Twain said, ‘it’s the easiest thing to remember’), and that makes it simple. Whether the question is about a new piece of legislation, or my recent criticisms of Spotify, or the launch and growing arc of #IRespectMusic, I try to remember that many people who will read the article may be new to these issues and I have an opportunity to reach them for the first time. For example, that artists have never been paid when their work has been played on AM/FM radio in the United States still shocks and horrifies those who are still unaware. In a funny way, it’s like voter registration (which I’ve done too) in the sense that one is getting people involved on the ground floor. It’s like you’re deputizing people––music lovers and makers alike––to the cause when they haven’t been aware of these fundamental injustices. The journalists often are knowledgeable, but they recognize that many of their readers may be new to these issues too, so they often give me the opportunity to bring those readers up to speed. I’m really grateful for that opportunity. I think the journalists are often eager to interview me about these issues because in their day-to-day music coverage of bands and artists on tour they don’t always get the chance. It’s interesting.
Castle:  I know you’ve had an over two-year sold out residency at Rockwood in NYC.  Do you think there’s a difference between how a Rockwood fan relates to you as an advocate and how someone new coming to the show for the first time reacts?
Morgan: That’s a great question. The Rockwood Music Hall audiences are also New York audiences, and that makes a difference too. But I think mostly, those shows are like “home games,” and the 100-150 shows I’ve done on the road over the past two years are obviously “road games.” The difference is simple: on the road I want to give everyone in the audience a sense of who I am and what I’m about (artistically and otherwise), and I have about 60-75 minutes to do it. I have to come at the show as if people in the audience haven’t seen me before, but with a nod to those who are coming back too. In New York, I can sort of jump in the middle of things a bit more, as that audience knows me and has been coming to other shows in the residency presumably. Plus my footprint in New York is just bigger in general, so the New York people are pretty up to speed. When I get back from a tour (I’ve traveled over 75,000 miles these past two years), I find I have a whole bunch of emails waiting for me to catch up on as fans I’ve just met or made write to me and get on board with #IRespectMusic. I see it on Twitter and Facebook in real-time when I hit a city too. It’s amazing. 
Castle:  West Wing Spoiler Alert:  Do you think there’s a grassroots value in making tour advocacy an every day thing as opposed to having “Big Block of Cheese Day” once a year in Washington?
Morgan: Ha! (You’re talking to the biggest West Wing fan you’ll ever meet, so I’m smiling at the reference in your question!) Listen, the more our leaders hear from us, every day, the more they act. It’s cliché but it’s true: Congress acts when people make them do so. In my opinion, Congressional lobbying events are important and I’m glad music has them. However, they are––at best––only part of the equation. No real hearts or minds are changed on the Hill at such events. Those events are important because we need to show strength in numbers and strength of organization. But there’s nothing more effective in my experience than one-on-one meetings with Congressional members and their staffs, because those hearts and minds can be won––and are––in such settings.
During one such meeting of mine on the Hill, a member of Congress sat up when I mentioned how badly middle-class music makers need reform. I said it was because like all middle-class Americans, we have health insurance and mortgages to pay, families to support. He said, almost with wonder, “You have a mortgage.” He shook his head with a smile of disbelief. Before I could respond––and very much to his credit––he added, “Blake I apologize for how naive that sounds. But I hope you understand: that’s not something we hear up here. The term “middle-class” when applied to musicians. Or that you, and musicians like you, have mortgages. Of course you have a mortgage, and health insurance, and a family to help support. We just don’t hear that message when we meet with the Grammys or the artists they bring here.”
He was disrespecting nobody, including the Grammys, he was simply having an “A-ha” moment in real time about what I’d said. “We talk about the American Dream and the middle class everyday in Washington, and now here you sit, representing both, talking to your representatives in Congress about what would be more fair for your profession. This is how it’s supposed to work. I’m really glad we’re talking about this.” We talked for another 30 minutes. I was genuinely moved, and I haven’t forgotten that moment…nor will I ever. It’s an example of how grassroots advocacy, propelled by grassroots support, can make the difference in getting through to our leaders. There’s nothing like it.
Castle:  Do you think that your approach to crossing over your advocacy work with your music work is unique to you, or could other artists do something similar?
Morgan:  I think the way I do it is probably unique to me, but the crossover itself is anything but unique. Artists of all genres and stripes and styles are standing up now. In their interviews, on stage, with their songs and records, on social media and through their representative organizations. All towards the same end: it’s time for American music makers to be paid fairly. Our audiences get it. Our families get it. Our friends get it. We all owe a debt of gratitude to those musicians who paved the way for us to get to this moment (Mr. Ulrich, if you’re reading this…you were first and you were right and everyone knows it now!), and we owe it to ourselves now to keep up the pressure and work harder than ever before. I have no doubt we will, and we’ll do it together.
Castle:  I remember that the first #irespectmusic show at the Bitter End had a voter registration element to it, including a speech by Rep. Jerry Nadler.  Is that something you’re planning on replicating?
Morgan: Yes. Hold on to your hats, and stay tuned. 

The Slippery Slope of Censorship: @HuffPost Pulls Story Critical of @Spotify Ahead of IPO — The Trichordist

January 9, 2018 Comments off

Artists Rights advocate Blake Morgan (#IRespectMusic) published a story in the Huffington Post this morning critical of Spotify. The story was rapidly gaining traction when it was suddenly deleted and Morgan received this email from the Huffington Post telling him he’d been censored From: Bryan Maygers Subject: Spotify’s Fatal Flaw Exposed Date: January 8, 2018 at 11:43:41 AM EST […]

Here’s Blake’s piece in its entirety.

Spotify’s Fatal Flaw Exposed: How My Closed-Door Meeting with Execs Ended in a Shouting Match

I love streaming.

I love making playlists, I love being able to download streamed music so I can listen when I’m offline, and I love being able to bring that music with me. In short, I think it’s a great distribution method.

What I don’t love is how little musicians get paid for all that streaming. It’s not fair––not even close. What’s more, middle-class music makers are the ones who are hit hardest, whose businesses are threatened, and whose families are put at risk. So how can I be against the way streaming companies treat musicians but not be
against streaming itself?

The same way I’m against the electric chair, but not against electricity.

Read the complete post on The Trichordist:  The Slippery Slope of Censorship: @HuffPost Pulls Story Critical of @Spotify Ahead of IPO — The Trichordist

@krsfow: @theblakemorgan on The Future of What Podcast Talks #IRespectMusic

December 8, 2017 Comments off

A real treat, Portia Sabin talks with Blake Morgan about the #irespectmusic campaign and more, two of my favorite people on the best music business podcast!

 

Successes in Artist and Songwriter Advocacy Show the Importance of Fighting Back

October 22, 2017 3 comments

“Why does Rice play Texas?”

President John F. Kennedy, Sept. 12, 1962, Rice University

Google White House Meetings

It should be clear by now that when it comes to sheer lobbying power expressed in terms of money and access, Big Tech has put the creative community up against it.  And not only has Big Tech put their collective boots on our necks, they have joined in the MIC Coalition cartel for the express purpose of crushing any opposition.

We must properly and grimly assess the opposition and our resources.  I would not say that the odds are in our favor, but the odds are what they are and I don’t think any of us are ready to roll over and show the belly in surrender.

We actually have made significant progress over the last few years with both legacy types of lobbying as well as grassroots organizing.  Both are absolutely essential.

The music community’s “value gap” campaign in Europe started when Google had a lock on the White House and Congress.  It should not be surprising that the value gap campaign has gained traction with these countries that historically support their culture and independence from American multinational neo-colonialism and are not afraid to strike back against Google’s monopoly.

Blake Morgan and the #irespectmusic campaign was the foremost grassroots organizing effort in the music industry and has become a case study for doing it right.  As Blake told me for this post, “Again and again, when we music makers––and our representative organizations––take action by rolling up our sleeves instead of wringing our hands, we win. Individually and together, when we continue to stand up and speak out, we demonstrate how powerful we really are.”

Another example of creators fighting back is the Recording Academy’s recent “District Advocacy Day” in which more than 1,000 performers in all 50 states visited their Congressional and Senate offices to advocate on the Fair Play Fair Pay Act (artist pay for radio play), the CLASSICs Act (pay artists on digital royalties for pre-72 recordings), the AMP Act (pay producers for digital royalties) and other legislation.

#irespectmusic and District Advocacy Day should put to rest forever the myth that the music industry only exists in New York, Nashville and Los Angeles.  This is a common trope that our opponents use against us.  Leveraging the grass roots is a long term process.  Members of Congress outside of the “centers” are discovering for the first time that songwriters and musicians actually live in their districts.  Creators are discovering, some for the first time, that they will be heard if they show up.

The Content Creators Coalition is still another example of artists joining together and working to make their voices heard in Washington.  C3 President Melvin Gibbs articulates the artist and songwriter perspective to defend the encroachment by the massive multinational corporations in the MIC Coalition specifically and Big Tech in general.

 

I’ve also been impressed with how artists rally to each other’s aid when attacked, the most recent example being the artists who came to the defense of Miranda Mulholland after she was gratuitously slimed by Google in Canada.

Artists and songwriters have made great strides in getting their voices heard over the corporate insiders and crony capitalists in the connected class.

This is not the time to give up.  It’s the time to dig in.

IRMAIV Large

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

July 20, 2017 Comments off

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.

@IRMPodcast #2: @RadioCleveKKG Interviews @theblakemorgan about #irespectmusic — Artist Rights Watch

June 25, 2017 Comments off
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