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Copyright Office Issues Interim Rule for MLC Applications Including Oversight of MLC Board by Librarian of Congress

December 21, 2018 Comments off

The U.S. Copyright Office issued an interim rule for comment that lays out an intricate and well thought out approach to the Register’s role in designating the Mechanical Licensing Collective and the Digital Licensee Coordinator under Title I of the Music Modernization Act.

Consistent with the MLC’s role as a quasi-governmental organization (or quasi-private, depending on how you look at it), the interim rule confirms that “directors of the MLC are inferior officers under the Appointments Clause of the Constitution [,] that the Librarian of Congress must approve each subsequent selection of a new director….[and] that the Register work with the MLC, once it has been designated to ensure that the Librarian retains the ultimate authority to appoint and remove all directors.”  Presumably, state corporate laws governing the formation of the MLC will give way to this requirement.

The Librarian’s ability to can directors should help assuage some of the concerns about the powers of the MLC and is, of course, entirely consistent with the powers of the MLC as a quasi-governmental organization.

Another requirement that caught my eye relates to the “Hoffa Clause” that allows the MLC to invade the black box to pay operating expenses not covered by the services in the administrative assessment.  The Copyright Office seems quite aware of the moral hazard present, and asks the prospective MLC candidates to provide:

Information regarding whether and how the proposed MLC may apply unclaimed accrued royalties on an interim basis to defray operating costs, as well as any accompanying plans for future reimbursement of such royalties from future collections of the administrative assessment, including relevant legal considerations and guidelines in the event the proposed MLC does intend to apply unclaimed accrued royalties.

All in all, the Copyright Office should be commended for putting together a comprehensive and even-handed “job description” for the MLC and the DLC in keeping with the Office’s statutory role in getting this quasi-governmental organization up and running.

Is it Time for the Inspector General to Review the Copyright Office’s Administration of Address Unknown NOIs? — Artist Rights Watch

January 17, 2018 Comments off

If all a digital music service needs to do in order to claim they have a licene to reproduce and distribute a song is send a notice to the Copyright Office is send a notice saying they can’t find the song copyright owner, how hard do you think they’ll look? Particularly if they know that the Copyright Office won’t check? It is time for the Inspector General to review this untenable situation.

via Is it Time for the Inspector General to Review the Copyright Office’s Administration of Address Unknown NOIs? — Artist Rights Watch

Mass NOI Charts: An Update from Royalty Claim

October 23, 2017 Comments off

An update on the state of the Copyright Office debacle also known as mass filing of “address unknown” notices under Section 115 (you can see the largely unusable posting of these notices at this link on the Copyright Office site).

Here’s some charts you won’t see in the trades or even on the Copyright Office site-Royalty Claim‘s Address “Unknown” Mass NOI chart that Royalty Claim measured by number of filings January 1-June 30, 2017:

[Preview] The State of Unclaimed Royalties and Music Licenses in the United States (3)

January 1-June 30 2017 by Number of Address Unknown Mass NOI Chart

And here’s another view by the millions of dollars of filing fees that Royalty Claim says has been paid to the Copyright Office (that is making a bundle out of the entire bureaucratic night sweat):

[Preview Fees] The State of Unclaimed Royalties and Music Licenses in the United States (4)

Mass NOI Fees Paid to Copyright Office Jan 1-June 30, 2017

Remember–the Copyright Office started allowing these filings in April 2016.  The inception to date totals are closing in on 50 million filings altogether–another chart the Copyright Office will never show you.

You can view the entire Royalty Claim presentation at this link.

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

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 2) — Music Tech Solutions

September 30, 2016 Comments off

As noted in Part 1 of this post, Google, Amazon and others are filing what are reportedly “millions” of “address unknown” NOIs with the U.S. Copyright Office to avoid paying royalties on songs like “Fragile (Live” by Sting, even if they have licensed “Fragile” the album versions.  I fully expect that Pandora will eventually do the same for its on-demand service and Spotify is likely to do the same. This type of carpet bombing of NOIs takes the treatment of songwriters by online services to a new low.

via Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 2) — Music Tech Solutions

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 1) — Music Tech Solutions

September 29, 2016 Comments off

Google, Amazon and MRI are reportedly filing “millions” of NOIs with the Copyright Office after buying data out the back door of the Library of Congress–all to avoid paying statutory royalties.  This takes “carpet bombing NOIs” to a whole new level of hurt for songwriters, and forces the Copyright Office to be complicit in the wholesale rip off.

via Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 1) — Music Tech Solutions

The Voting Dead: White House memo questions if anonymous comments can be used in making policy?

May 25, 2016 Comments off

By Chris Castle

If you followed the Copyright Office request for public comments on the DMCA “notice and takedown” safe harbors, you will probably be aware of reports that a group called Fight for the Future generated 86,000 comments to the Copyright Office in approximately 36 hours.  I will give even money that it will turn out that investigation will reveal that most of those comments were fake.

One reason I’d make that bet is because they look fake.  Many were anonymous or pseudonymous and there’s really no way to know who or what submitted those comments.  And that’s why there’s a question about whether this kind of public comments can be used at all for policy making.

screen-shot-2016-05-12-at-2-58-04-pm

But another reason I’d make the bet is because we’ve seen this kind of thing before–and no one ever checks.

Recall that we were very suspicious of Industry Canada’s use of anonymous public submissions over the Internet in the public “consultation” on copyright reform in Canada held in 2009.  For mysterious reasons, Industry Canada bureaucrats charged with administering the consultation failed to implement even the most rudimentary controls to screen or qualify these anonymous public submissions.

Not only did the Industry Canada bureaucracy fail to implement even rudimentary controls over the public submissions, but they also completely overlooked obvious flaws in the submissions themselves—flaws easily exploited by “a dedicated group of like-minded people.”

Unfortunately, then-Minister of Industry Tony Clement was not given the information he needed to realize that his many public statements about the success of the consultation process will forever have an asterisk by them—“*except for the totally gamed online submissions.”

And then there was an incident in 2007 involving an EFF “petition” against the RIAA.  When you click on a “see signatures” link you are taken to a page full of 5 or 6 digit numbers all in columns and rows. What was this? There were literally a couple hundred number sequences, like little serial numbers, all arranged in neat columns and rows under the heading “Those Who’ve Taken a Stand Against the RIAA!” like you’re at the Tomb of the Unknown or something (no pun intended). It’s like you would have expected to see names, but instead you see numbers. And when you click on the numbers, the links point you back to the same page you were on when you clicked the link.

I tried clicking a few other numbers and the same thing happens. Then I finally happen to hit on one that actually shows a few names, names like “O. Online Poker”, “T. Texas Holdem”, “P. Poker Rooms”, towns like “Google, CA” (must be Stanford?), “Świnoujście, ME”, “f, MA”, “Beverly Hills, LA”, “Beverly Hills, MI”, Dubai, “SCOTLAND!!, AK”, and my personal favorite “J. Travolta, Los Angeles”. And then there’s “r. little boys” of “George, AL“. No comment.

We could take some advice from Google’s own advertising customers about fakery.  Sir Martin Sorrell, the head of the mega-ad agency WPP, says Google won’t even tell WPP or the advertisers themselves.  According to a recent article in the Financial Times, Sir Martin “warned Google that unless it improves its efforts to weed out ‘fake views’ of online adverts, marketers will shift their focus back towards traditional media such as press and television.” Sir Martin was reacting to a study that alleged that Google “has been charging marketers for YouTube ad views even when the video platform’s fraud-detection systems identify that a ‘viewer’ is a robot rather than a human being” and Sir Martin stated the obvious conclusion that “[c]lients are becoming wary and suspicious.”

It’s a short hop from fake views of online adverts to fake anything else, including fake signups to a public consultation on regulations.gov.

A process that allows an organization like Fight for the Future to collect submissions of a form letter and then submit them all at once unnecessarily inserts a gatekeeper into the public comment process.  But it is the kind of thing you would do if you wanted to avoid anyone collecting the address information on your favorite robots.

The anonymous and pseudonymous “signers” of the Fight for the Future form letter are not that different from a casual online poll.  As former Canadian Minister of Industry Clement learned the hard way, online polls or their equivalent do not make for good policy as that system is inherently unreliable.

I’m not the only one who thinks so.  Cass Sunstein, then the Administrator of the Obama Office of Management and Budget, issued a memo in 2010 to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies.  If the Copyright Office followed the memo’s proscriptions, it would likely rule out the use by the Copyright Office of online form letters such as the Fight for the Future webforms.

Specifically, the Sunstein memo warned that “[b]ecause, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”  Sunstein called for exercising caution with public consultations:

To engage the public, Federal agencies are expanding their use of social media and web- based interactive technologies. For example, agencies are increasingly using web-based technologies, such as blogs, wikis, and social networks, as a means of “publishing” solicitations for public comment and for conducting virtual public meetings.

As one source noted, “[A] million Americans can Digg or retweet [or Reddit] an important blog post, but government officials shouldn’t use that popularity as an indicator of the post’s value. That’s not always a bad thing considering that a dedicated group of like-minded people can game a casual voting system.”  Or the Copyright Office’s public comment process–and it must be said that since Regulations.gov hosted the online comment process, that would rule out any other form letter responses to any consultation for the whole of the federal government as hosted by regulations.gov.

And I think Sir Martin Sorrell would agree that there’s no more dedicated group of likeminded people that a bunch of robots.  So if you didn’t before, you get the idea about why Mr. Sunstein had reservations about using online petitions to make policy.

Mr. Sunstein—who some might call something of an Internet evangelist—is clearly trying to establish best practices for the U.S. government to allow the government to benefit from the good of using the Internet to further legitimate policy making goals while avoiding the bad. Avoiding the bad includes a prohibition on basing policy decisions on the use of information that is or could be gamed in the formation of public policy by “a dedicated group of like-minded people.”  And the gaming can be done before or after the fact, and the “like-minded people” can be outside—or inside—the government.

It is not a very large leap to imagine a truly Orwellian world where the government finds that the public supports its policies because it uses information that its anonymized supporters intentionally game or are encouraged to game to produce the desired result. As we noted in Fair Copyright Canada and 100,000 Voters Who Don’t Exist , the legitimate desire by governments to use the Internet to engage with the governed is to be admired. But if the process is selectively managed by bureaucrats with an agenda or groups like Fight for the Future (funded in part by mega-lobbyists the Consumer Electronics Association), it is to be greeted with considerable caution if not outright suspicion.

FFTF CEA

At least when they count the votes of the dead in Chicago, there was a somewhat real voter registration at some point.

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