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The Music Modernization Act’s New Burdens for Labels Identifying Unmatched Songs — Music Tech Solutions

June 22, 2018 Comments off

The Music Modernization Act is definitely the gift that keeps on giving.  It seems like every time I read it, a new toad jumps out from under a rock.

The latest one I found is a new burden the MMA places on all sound recording owners, large and small.  Why? To help the digital services comply with their obligation to locate song copyright owners in order for the services to keep the new “reachback” safe harbor–what we used to call “copyright infringement” but what is called the “Limitation on Liability” for “Prior Unlicensed Uses” in MMA speak.  This is the retroactive safe harbor given effect on January 1, 2018 regardless of when the bill actually is passed by both houses of Congress and signed by the President, the new safe harbor that prompted the lawsuit against Spotify by Wixen Music Publishing that was filed on December 29, 2017 after word leaked out about what was actually in the MMA.

Here’s the relevant clause (at pages 100-101 of the House bill):

REQUIREMENTS FOR LIMITATION ON LIABILITY.—The following requirements shall apply on the enactment date and through the end of the period that expires 90 days after the license availability date to digital music providers seeking to avail themselves of the [reachback safe harbor]:

‘(i) No later than 30 calendar days after first making a particular sound recording of a musical work available through its service via one or more covered activities, or 30 calendar days after the enactment date, whichever occurs later, a digital music provider shall engage in good-faith, commercially reasonable efforts to identify and locate each copyright owner of such musical work (or share thereof). Such required matching efforts shall include the following:

(I) Good-faith, commercially reasonable efforts to obtain from the owner of the corresponding sound recording made available through the digital music provider’s service the following information:

(aa) Sound recording name, featured artist, sound recording copyright owner, producer, international standard recording code, and other information commonly used in the industry to identify sound recordings and match them to the musical works they embody.

(bb) Any available musical work ownership information, including each songwriter and publisher name, percentage ownership share, and international standard musical work code.

And yes, that is a double “good-faith, commercially reasonable” predicate–a drafting bugaboo of mine.  I guess it means really, really, really good faith and absolutely positively commercially reasonable since they said it twice.

So what this means is that labels are required to provide to digital services a lot of song ownership information that they may or may not have.  For example, if the label licenses in a sound recording and puts the publishing payments on the licensor (very common practice) the information might be “available” but it is just not available to them.

Note that despite the fact that “good faith” and “commercially reasonable” are repeated twice for emphasis, those concepts modify the efforts of the digital service and not the efforts of the label to respond.  (Not surprising, if you believe as I do that the MMA was largely written by the lobbyists for the services and not the publishers or songwriters.)

At a minimum, the clause should be revised to extend the “good faith” and “commercially reasonable” modifiers to the label’s efforts to provide song information.  Having said it twice, why not three times?

There’s also no procedure for how this request is to be made or responded to, nor is there reimbursement of the costs incurred by the label in complying.  There’s also no limitation on liability for the label if it provides the service what turns out to be incorrect information.

Of course, what should really happen is that the entire paragraph (bb) should simply be struck.  It has long been the practice of record companies to refuse to provide publisher information to digital services and it has long been the practice of digital services to not ask for it.

In all likelihood, the services will engage a third party to do their song research, which is covered in the very next clause:

(II) Employment of one or more bulk electronic matching processes that are available to the digital music provider through a third-party vendor on commercially reasonable terms, but a digital music provider may rely on its own bulk electronic matching process if it has capabilities comparable to or better than those available from a third-party vendor on commercially reasonable terms.

Taking a long look at the clause, it seems reasonable to simply strike the entire clause (I) and keep the labels out of it as has long been the practice, and require the services to either use their own systems or hire a vendor.  And that’s where there should be some criteria for what constitutes a proper vendor.  If there’s going to be any work done by the labels, then–as advertised–the digital services should pay the label’s cost of compliance as part of the assessment and the label should have no liability if they happen to not have the song information “available”–in a commercially reasonable manner.

We all want the MMA to work, but we also all want to avoid unfunded mandates imposed by the federal government that create unintended consequences.

via The Music Modernization Act’s New Burdens for Labels Identifying Unmatched Songs — Music Tech Solutions

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. 

Call to Action: Please Help Support Our Musical Legacy and Tell the Congress #irespectmusic on the CLASSICS Act

February 15, 2018 Comments off

joanaIRM

I don’t often ask MTP readers to agree with me, much less sign a petition.  But the exception proves the rule and I’m asking that you please sign the petition to support legislation in the U.S. Congress that would close the loophole that some digital music services have been leveraging for quite some time on so-called “pre-72” recordings.

If it sounds implausible that the date a record was released should make a difference in copyright protection or entitlement of the artists to the same royalties as everyone releasing records after that date–that’s because it is.  It’s actually worse–it’s the kind of thing that someone would do if they truly viewed music as a commodity.

But that’s exactly what Pandora and Sirius started doing a few years ago when a truly meanspirited bunch of lawyers and bean counters decided they could save a few bucks by stiffing old guys and dead cats and their heirs.  Between Pandora and Sirius, this bunch of rocket scientists have paid out $300 million in settlement to the major labels and will pay even more in that Turtles class action to the indie community.

And that’s right–these geniuses could have come out better if they had just paid the damn royalties in the first place.

So you know what this is about–it’s a piece of the #irespectmusic campaign for artist pay for radio play.  Except this time it’s about reclaiming rights we already fought over back in 1995.  It’s about claiming a little piece of righteousness for those who can’t do it themselves.

What these jerks at Pandora and Sirius (and the Digital Media Association) were really about was bootstrapping an issue into a bargaining chip by withholding payment on pre-72 recordings like bullies do.  And here’s why:  Remember Blake Morgan told us that the U.S. is one of the only countries in the world that doesn’t recognize a performance right for sound recordings?  Well, before 1972 the U.S. didn’t recognize a federal copyright in sound recordings at all.

The Congress amended that astonishing oversight in 1972 to recognize a federal sound recording copyright and then in 1995 and 1998 adopted a limited performance right in sound recordings performed in a digital medium.  You know–back when it didn’t seem like this funny digital thing didn’t matter much.  Under certain circumstances, there is also a royalty paid for digital performances for webcasting, simulcasting, satellite radio and a few other radio services.  That’s basically your “SoundExchange money.”

Sounds good, right?  Do you think that there was one member of Congress in 1995 who voted for the limited performance right but secretly said king’s x–a royalty for everyone except James Brown, Duke Ellington, Aretha Franklin, Ella Fitzgerald, Louis Armstrong, Jimi Hendrix, Willie Nelson, Buddy Holly and ZZ Top?  No, but that’s what the Digital Media Association, the NAB and their knuckleheads would have you believe.  Remember–not even Pandora believes this bunk anymore.  Amazing what new lawyers will do for the soul.

So the Congress has been forced to introduce legislation to fix the pre-72 loophole once and for all–and that’s what I’d really appreciate your support for.  The bill is called the CLASSICS Act and it’s supported in the House by Ranking Member Jerry Nadler (D-#irespectmusic) and Rep. Darrell Issa (R-CA) and in the Senate by Sen. Chris Coons (D-DE) and Sen. John Kennedy (R-LA).

We have a lot of people to thank for advancing the ball to this point, especially all the folks carrying the legislation, but especially Ranking Member Jerry Nadler who thankfully believes in this so much he’s always up for another fight for artist rights.  We also have to thank The Turtles and their team, SoundExchange CEO Mike Huppe and his team, and Chris Israel and his team at MusicFirst.

You told them how you feel about #irespectmusic and I would ask you to please do it once again because we can’t stop fighting until the fight is done.  But don’t do it for me, do it for Ella, Aretha, the Duke, the Count, Maceo, Jimi with an i and Hendrix with an x.  Do it for all of those who came before, both living and back home and those they left behind.

We never ask you to sign anything you don’t understand, so if you’re still unclear, please let me know.

The MusicFirst Coalition has a petition here.  I’d really appreciate your signing up.

The Music Modernization Act’s “In Terrorem” Clause

February 11, 2018 1 comment

The more the “Music Modernization Act” is discussed, the more rocks get turned over and the more toads jump out from under the rocks with nasty surprises.  Even before it is passed, the MMA is already disrupting private contracts, well settled expectations and a century of law.  Which is a real neat trick by Big Tech, this time in the form of the Digital Media Association (or “DiMA”).  And the most punitive aspect of the proposed bill appears to exist for no reason that relates to the proposed bill’s primary purpose–creating a prospective safe harbor for Big Tech to exploit every song ever written by anyone in the world and every song that may be written in the future by anyone in the world. But it also creates a “snap back” retroactive safe harbor that will scare songwriters into not filing infringement lawsuits before the bill even gets a vote, or what the law calls an “in terrorem” clause.  Those clauses are designed to scare people into not taking legal action to protect their rights and the MMA has a huge one in the first of several brand new safe harbors that will be way worse than the DMCA.

Here’s the first and most punitive safe harbor that insulates music services from lawsuits for “prior unlicensed uses.”  In case you missed it, “prior unlicensed uses” is a nice way of saying “prior copyright infringements.”

(10) PRIOR UNLICENSED USES.—  ‘‘(A) LIMITATION ON LIABILITY IN GENERAL.—A copyright owner that commences [a lawsuit] on or after January 1, 2018 [i.e., before the enactment of the MMA], against a digital music provider for the infringement of the exclusive rights…arising from the unauthorized reproduction or distribution of a musical work by such digital music provider in the course of engaging in [uses covered by the new blanket license in the MMA] prior to the license availability date, shall, as the copyright owner’s sole and exclusive remedy against the digital music provider, be eligible to recover the [statutory streaming mechanical] royalty [in that lawsuit]…from the digital music provider, provided that such digital music provider can demonstrate compliance with the requirements of subparagraph (B) [searching for copyright owners that 60 million mass filings of “address unknown NOIs suggest they are incapable of doing], as applicable. In all other cases the limitation on liability under this subparagraph shall not apply.

What this paragraph means is that unless a copyright owner has already filed a lawsuit against a service for infringing uses that occurred prior to January 1, 2018, that infringing service can only be sued for the measly streaming mechanical royalty–which almost guarantees that the service will never be sued.  No statutory damages, no attorneys’ fees, no injunctions.  This is why Wixen Music Publishing filed a lawsuit against Spotify on December 29, 2017.  (Note that suing for unpaid royalties is the only type of claim the copyright owner can make against the infringer.)

The “license availability date” is the January 1 following the second anniversary of the date the bill becomes law (assuming it ever does).  I have no idea why this section is written this way which seems designed to confuse anyone who is not already familiar with it.

I also have no idea what is so special about January 1, 2018 aside from the fact that it was a matter of days after the bill was quietly introduced, before a copy of the bill was made publicly available, and was most likely to protect further lawsuits that might affect the rumored Spotify IPO.  (Which is why some call the MMA the “Spotify Preservation Act”.)

So, for example, if the bill became law on June 1, 2018, two years following would be June 1, 2020, so the next January 1 would be January 1, 2021.  That means that the new safe harbor applies to any infringements between January 1, 2018 and January 1, 2021, or for lawsuits not yet filed for infringements occurring before January 1, 2018 that are still within the Copyright Act’s three-year statute of limitations.  That’s right–the safe harbor applies before the Music Modernization Act was given legal effect.

And of course the clause that limits the safe harbor to situations where the “digital music provider can demonstrate compliance with the requirements of subparagraph (B) [searching for copyright owners that 60 million mass filings of “address unknown NOIs suggest they are incapable of doing]” would itself require a lawsuit.  How do you think Big Tech would respond to a request for proof?  Probably a two world answer “we complied” followed by another two word answer to the inevitable challenge.  That means that every songwriter would have to be willing to sue some of the biggest corporations in the world with no guarantee of the statutory damages and attorneys’ fees in the private attorney general provisions of the Copyright Act.

Yes, as Tom Waits teaches us in Step Right Up, “the large print giveth and the small print taketh away.”

Ask yourself this–if a copyright owner didn’t know about this bill and filed their lawsuit after January 1, 2018, what would happen if the bill is subsequently enacted into law with this in terrorem clause intact?  When you ask people who were involved with the closed door negotiations of the bill that produced this clause, you get the answer “DiMA wouldn’t agree to take that out”.  Well, no kidding.  The very presence of this clause in a draft bill creates the in terrorem situation that is the clear object of the exercise.  So much for closed door negotiations.

Aside from the whole MMA being very poorly thought out and a vicious attack on basic rights of songwriters, Attorney Richard Busch, among others (including me), believe this section to be violative of several of our most cherished protections in the Constitution and it certainly doesn’t pass the smell test for work the government should be about.  If anyone thought that this bill was designed to get the government out of the music business, that is just a laughable assertion.

More on this later, but I’d be interested in hearing from anyone who has an idea how this in terrorem provision would be given effect if someone dared to test the punitive legislation and filed an infringement case after January 1, 2018 for “prior unlicensed uses” that occurred before the enactment of MMA but within the statute of limitations.  My view is there’s no fixing this section and it just needs to be stricken now rather than wait the five to ten years or so it will take for a case to reach the Supreme Court or WTO.

 

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!

 

Watch This Space: The #irespectmusic Podcast Coming Soon!

May 23, 2017 Comments off

IRM_logo_FINL200x200

Watch this space for the #irespectmusic podcast, hosted by Karoline Kramer Gould!  Listen to the trailer here!

Blake KKG Conyers

Blake Morgan, Karoline Kramer Gould, Rep. John Conyers

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