Archive

Posts Tagged ‘David Lowery’

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)

 

 

Must Read by @davidclowery: Google Doxx: Google Funded Groups in 2017 Illegal Doxxing of FCC Chairman — The Trichordist

July 13, 2019 Comments off

Editors note #1 – Over the last year, this blog has been reporting on Google’s apparent use of proxies in an attempt to intimidate members of the EU parliament into voting against the proposed EU Copyright Directive. The Copyright Directive requires social media platforms above a certain size to do more to counter copyright infringement […]

via Google Doxx: Google Funded Groups in 2017 Illegal Doxxing of FCC Chairman — The Trichordist

The Times of London Confirms that Google is Behind Astroturf “Opposition” to European Copyright Directive

August 8, 2018 1 comment

Dj_qcYOW4AAfyRy.jpg-large

Since the earliest days of MTP, we’ve been pushing what has come to be called the “value gap”–the margin of profit that Big Tech makes from playing games with the DMCA safe harbor (and the Section 230 safe harbor in the Communications Decency Act).  In 2006 we called this “The DMCA is Not an Alibi” and pointed the finger directly at the biggest offender–Google and in particular its YouTube subsidiary.

We’ve also pushed the facts on how Google creates fake astroturf groups which has been going on for years and in countries other than the United States.  While no one has ever looked too hard at what happened in SOPA opposition in the US and ACTA resistance in Europe, the circumstantial evidence suggests that there’s a mismatch of grand proportion between the number of “people” who show up for anonymous or near anonymous online “protests” yet nearly zero warm bodies show up in person to protest, say, Copyright Office Roundtables on modifications to the DMCA safe harbor.

This was even true of the White House petition on SOPA–there were no geographical boundaries on who could sign up to a White House petition, which is the least that you would think that the President of the United States would try to accomplish on a petition that directly affected U.S. law.  We’re assuming that the same rules applied to all White House petitions, but it ain’t necessarily so–given Google’s White House influence, restrictions could have been dropped for SOPA alone.

We saw it once again with the Article 13 vote in the European Parliament.  Millions participated in what could legitimately be described as a last minute DDOS style attack on the European Parliament–again, anonymous or near anonymous and largely unverifiable communications shrouded under the shield of “constituent communications” with no way to verify in real time exactly who these people were.

This makes no sense–why is it that the only time the anti-copyright crowd can summon large amounts of data is when no one knows who they are?

David Lowery and Volker Rieck writing in The Trichordist have put their finger right on exactly how Google accomplishes this policy bombing with stunning exposes of OpenMedia and New/Mode, the two organizations that seem to be funded by Google and are as close to what Mr. Rieck called the “political hack” of the European Parliament as one is to two.

We also posted on MTP about this issue and called on EU public prosecutors and the European Commissioner for Competition Margrethe Vestager to investigate the entire process.

The reason we mentioned Margrethe Vestager is because the week of the Article 13 intimidation campaign, the European Commission fined Google some $5 billion.  Understand that Google got involved late in the Article 13 debate and stood up its astroturf campaign very late in the cycle–this would have been right about the time that Google knew it was about to be the subject of yet another multi-billion fine for its bad behavior.

These competition actions don’t happen in a vacuum and there is a lot of dialog with the companies subject to the fine, so it is hard to believe that the timing of the announcement by Commissioner Vestager as well as the amount wasn’t well-known to Google when it dropped the hammer on Article 13’s astroturf campaign.  Not only that, but when the usual suspects called me out, I knew I was onto something.

Fortunately, David’s first rate investigative report on the astroturf campaign caught the attention of as august journal as The Times of London (“Google funds website that spams for its causes”) which confirmed David’s story with its own independent investigation.  It is becoming increasingly apparent that in a post-Cambridge Analytica world, do we take these aberrant behaviors as normal or do we question them?

None of Google’s attacks on government should be surprising–anarchy is in their DNA.  As former Obama White House aide and Internet savant Susan Crawford tells us:

I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it.  We could avoid it.  These people were irrelevant.

There seems little doubt that Google paid off Open Media to do its political dirty work–the question is, do the Members of the European Parliament want to sit there and keep getting abused by an antagonistic multinational corporation, or do they want to do something about it.

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

A must read post on @thetrichordist by @davidclowery: A Compromise Proposal to Fix Streaming Royalties,Licensing and Notification

June 28, 2017 Comments off

I have a feeling I’m about to wander off the reservation here. I say this because what I’m about to propose is essentially a modification of a potential legislative proposal that rumor has it the NMPA is floating. That proposal seems to be generating some negative backlash in songwriter/publisher community (whether it deserves it or […]

via @davidclowery: A Compromise Proposal to Fix Streaming Royalties,Licensing and Notification — Artist Rights Watch

Google and Amazon Leverage Copyright Loophole to Use Songs Without Paying Songwriters

October 15, 2016 4 comments

Two vastly wealthy multinational media companies are exploiting a copyright law loophole to sell the world’s music without paying royalties to the world’s songwriters on millions–millions–of songs. Why? Because Google and Amazon–purveyors of Big Data–claim they “can’t” find contact information for song owners in a Google search. So these two companies are exploiting songs without paying royalties by filing millions of notices with the Copyright Office at a huge cost in filing fees that only megacorporations can afford–an unprecedented land grab in nature, size and scope.

That’s right–Google and Amazon are falling over themselves to use their market power to stiff songwriters yet again. And as I will show, it is not just obscure songs that are affected. New releases, including one example from Sting, are also targets suggesting significant revenue loss to songwriters.  (I go into this in more detail on this series of posts.)

I happened to speak to a representative of one of the mass NOI filing companies after a recent panel in Los Angeles who assured me that the reason that his clients were filing these NOIs was not because they did not want to pay royalties but because they were so worried about liability from a “Jeff Price jihad” and that his clients fully intended to pay royalties retroactively once the song owner became known unlike the record companies who are “thieves”.   I believe that he believes that his client believes that they’re just trying to avoid being sued for not having the rights, but humor this unbeliever.  My bet would be that getting that retroactive payment will take the effort worthy of an act of Congress.

Perhaps literally.

If his new boss clients had a reputation for or history of treating creators fairly, I’d be far more inclined to bet on sunshine and puppy dog tails, but they don’t so I won’t.  The problem would be easy to solve–all they would need to do is issue a press release or even a blog post on the Google Public Policy blog stating that it is the official position of the company to pay retroactively.  Even if you accept his premise that record companies and music publishers are “thieves,” they never filed millions of NOIs.  In the meantime while we’re waiting for that post, I think we have to act as if it is not coming.

The U.S. Compulsory License

Songwriters are the most regulated workers in America. The government sets wage and price controls on most uses of songs and practically everything else about a songwriter’s business–except fulfilling government’s basic role of keeping them safe from piracy and multinational monopolists gaming the system. Congress needs to stop this latest scam.

The latest loophole that Google and Amazon are hacking is uniquely American–the compulsory license for songs. No other country has one. Most songwriters would prefer that the U.S. repeal this legacy anachronism from 1909 that keeps the government’s boot on their throats.

In order to get the government’s license, services only need notify the songwriter (or their publisher) that the service intends to use the song under the compulsory license. Of course, sending this notice of their intention to use the song (called an “NOI”) requires knowing who to send it to, and that is the “hack” that Google and Amazon are exploiting now. Others services surely will follow their market leadership if Congress fails to act.

The hack uses market power to manipulate a loophole in how those NOIs are sent. Common sense tells you that to send a notice, you must know who to send it to, even for a song. But does common sense also tell you that if you don’t know, the law should allow you to exploit the songs without compensation? Particularly if you’re the biggest purveyor of data in human history?

The legacy compulsory license allows services to exploit songs if they decide they can’t find the songwriter–and not pay royalties until the songwriter finds them.

That’s right–Google and Amazon trade on a loophole that allows them to serve NOIs on the U.S. Copyright Office if the song owner cannot be found in the public records of the Copyright Office regardless of what other information is readily available to these services, including their own. And once Google or Amazon serve that “address unknown” NOI, they don’t have to pay royalties and they cannot be sued for copyright infringement–so the millions in filing fees they will spend at the Copyright Office is a kind of insurance premium. This excerpt from the Copyright Act states the rule:

sec-115-noi-unknown
Why Can’t Google Search?

The “address unknown” NOI starts from this premise: Google is supposed to search for the song owner’s contact to send NOIs.

That’s right–Google is supposed to search. Think about that. This 1976 rule was never intended to apply to a music user with Google’s search monopoly. Yet, if Google “can’t” find the song owner after a search, then Google can serve an “address unknown” NOI to the Copyright Office and then exploit the song for free until the songwriter can be “identified” in the Copyright Office records–which may be never.

That registration by songwriters–while prudent–is costly and entirely voluntary. Forcing songwriters to register essentially turns the system into a version of YouTube’s “opt out” debacle, and probably violates international copyright treaties.

But the idea that Google can’t find someone is a remarkable thought. Gmail alone has over one billion users. Google knows everything about everyone and makes billions of dollars from reselling and manipulating that information. Not to mention the fact that Google bought the music licensing service Rightsflow–itself an NOI mill. Not to mention ten years of information Google has scraped from Content ID on YouTube or sheet music on Google Books.

Amazon also has a phenomenal amount of information about music ownership. As one of the biggest CD and DVD retailers, Amazon certainly has a head start in song research.

However–it appears that Google and Amazon are not using their own data for NOIs. Instead, they apparently are buying databases from the Library of Congress that tell them whether a song is registered for copyright or otherwise recorded in the digitized Copyright Office files (which songwriters are not obligated to do in order to get the benefits of the compulsory license). Those Library of Congress databases at best only cover copyrights after 1978 for technical reasons, so tens of thousands of jazz, blues and classical compositions created before 1978 are not included, as well as songs from outside the US before or after 1978.

LOC Prices Databases.png

Why buy this data when these giant corporations already have so much information at their fingertips? Because the point for the services is not to find out who actually owns the songs, the point is to find out if the Copyright Office has a record of who owns the songs based on the Library of Congress data.

That is the hack.

Kafka-esque Moral Hazard

In other words–the government allows Google to claim they can’t find the songwriter even if Google’s own data would reveal their identity just because the song owner isn’t included in the Library of Congress database at the time Google searches. And there’s the “gotcha”.

Kafka’s next book is in there somewhere.

Offering all the world’s music all at once presents a licensing problem that no system will be able to solve due to the sheer numerosity and disaggregation of the creative process. How many songs will be written by the time you finish reading this post and how would you find out who wrote them?

So it should not be surprising that the market has offered a few ways to solve for this problem: Direct licenses (bypassing the NOI altogether) and NOI clearance companies that specialize in maintaining song owner information to send out mass mailings of NOIs (sometimes called “carpet bombing NOIs”).

These are two significant methods available to Google and Amazon and my guess is that these monoliths employ both methods for their interactive streaming services (the kind of service that competes with Apple and Spotify).

What’s the Alternative?

If Google and Amazon cannot find the song owner under their direct licenses or through an NOI company, how can they find the song owner? The easy answer is don’t use the song. But that approach is counter to offering all the world’s music at scale by creating supply that is not responsive to demand.

Deciding which songs are right for “address unknown” NOIs requires some Silicon Valley style hocus pocus. Remember–it’s not that Google can’t find the song owner. The loophole requires that they can’t find the copyright owner in the pubic records of the Copyright Office, even if Google has actual knowledge of their whereabouts.

Then you have to believe that Google knows where to get the information for which direct licenses they want, they know how to carpet bomb NOIs, they have a decade of information in Content ID, but when it comes to some songs, Google has to turn to the Library of Congress? And Google’s only choice is to serve “address unknown” NOIs on the Copyright Office?

Once served, the Copyright Office posts these mass filings on their website in large Excel files so that songwriters can sift through the haystack to find their needles. This hit and miss and self-serving process is fraught with moral hazard and should not be the law in 2016.

This is what the filing looks like–but realize that “1 NOI” means “1 NOI With An Excel file with over 40,000 songs on it”.

co-nois-1

Sting Songs Give Some Examples

A spot check of a couple of Google’s filings reveals that Google is not getting it right. Let’s use three Sting songs for an example.

Sting’s recent release “50,000” (coincidentally a tribute to David Bowie and Prince) is on Google’s “address unknown” NOI list. That song is probably subject to a direct license, but the song copyright registration may not yet have been processed. There’s almost always a delay in processing copyright registrations, so new releases will rarely appear in the Library of Congress database day and date with the song’s release. Google will not be paying royalties on Sting’s song, but will be exploiting it.

That’s right–a song that is a tribute to an artist rights advocate like Prince is itself being ripped off.

50000-noi

Google has also filed an “address unknown” NOI for a song entitled “Fragile (Live)”. My bet is that “Fragile (Live)” is “Fragile”, the well known hit song and anthem of the environmental movement.

sting-fragile-google-noi
This likely means that someone at Google seems to think–or wants to think–that “Fragile (Live)” is a different song than “Fragile”, probably because there is a sound recording registered for “Fragile (Live)” in the sound recording metadata but no song registered by that name in the Library of Congress database. And why would there be if it is the same song? We humans have a way to catch this kind of mistake.

It’s called listening.

This pattern repeats with “Brand New Day (Cornelius Mix)”, also included on Google’s “address unknown” NOI. Again, a version of the sound recording, not the song. The song remains the same.

sting-brand-new-day-mix

It is highly likely that the songs “Fragile” and “Brand New Day” were registered with the Copyright Office long ago. That’s probably why the “Live” and remixed versions of the sound recordings show up in Google’s NOI filing for the songs and the original versions do not.

In this case, not only are these songs likely covered under a direct license with Sting’s publisher, but even if they are not, the song owner’s information is identified in the public records of the Copyright Office. The loophole does not apply, but Google takes it anyway and the cost of checking up on a multinational media company falls on the songwriter.

And given that it’s Google, the songwriter will probably have to sue them to a final non-appealable judgment in order to fix the mistake that should never have been allowed to happen in the first place.

The Congress Must Act

The government’s compulsory license has become distorted by rent-seeking behavior by multinational media corporations. It should be stopped or substantially modified. If Google is allowed to use this loophole to profit at the expense of songwriters from its considerable influence peddling and litigiousness, that will be crony capitalism writ large.

Despite the assurances of the mass NOI filing agent, my view is that until I see it in writing, I have to assume that Google and Amazon took this route because it not only offered an opportunity to react to Jeff Price or David Lowery who have the temerity to speak up on behalf of song owners, it had the added bonus of actually stiffing songwriters. The reason I think that is so is because that’s what they chose to do rather than taking the obvious alternative–just not using someone’s property if you decide you can’t find the owner.

Watch this Space: MTP Podcast on 100% Licensing with Michelle Lewis and Kay Hanley of Songwriters of North America, David Lowery, Chris Castle coming soon

August 12, 2016 Comments off

Next week we will continue discussion of the Department of Justice [sic] ruling on 100% licensing and partial withdrawals from the songwriter’s point of view.

Participants will be songwriters Michelle Lewis and Kay Hanley of Songwriters of North America, David Lowery and Chris Castle.

Watch this space for links to the podcast when it is completed, probably August 17/18.

In the meantime, you can subscribe to the MTP Podcast on iTunes or on Stitcher.  More recent podcasts can also be found on SoundCloud.

For background, check out the MTP podcast with Steve Winogradsky, David Lowery and Chris Castle on the technical aspects of the DOJ’s decision.

%d bloggers like this: