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Posts Tagged ‘Mass NOIs’

Billions and Billions: Carl Sagan Meets the Music Modernization Act

July 24, 2018 Comments off

According to a post in Variety, there seems to be a rather large chunk of cash sitting at the digital music services.  As Artist Rights Watch posted,  Variety’s initial story read:

The DSPs are holding some $1.5 billion in unmatched mechanical royalties. If the MMA passes, that money would be passed through to the MLC which would match it to the songwriters and publishers.

Variety subsequently updated the post (you might call it a “correction”) to read:

The DSPs are holding some $1.5 billion in unmatched mechanical royalties [ADDED — that total is the sum of all Notice of Intent (NOI) filings currently parked at the U.S. Copyright office, and is climbing.] If the MMA passes, that money would be passed through to the MLC which would match it to the songwriters and publishers.

Both these statements are rather odd.  If there’s $1.5 billion in unmatched royalties at services, one must ask what is it doing there?

On the other hand, if the “correction” is correct, the $1.5 billion sum includes, I guess, royalties payable for the NOIs at the Copyright Office.  Not clear from Variety, but this reference must be to the “address unknown” mass NOIs (since Variety refers to “at the Copyright Office” and I think that’s the only NOI that would get filed “at the Copyright Office”).  (See my post on Big Tech’s mass NOI loophole from the ABA Entertainment and Sports Lawyer.)

This “correction” is also very strange to me because the mass NOIs are royalty free–that (and escape from liability) is the whole point of the loophole.  I think we have probably bored everyone with many posts on just what a joke these filings are.   Everyone from Ed Sheeran to the Neville Brothers are subject to these NOIs, and I’m told that at least Ed Sheeran is getting paid under a voluntary agreement.  Having said that, I would be very surprised if there were anywhere near 1.5 billion NOIs filed at the Copyright Office, although there may certainly be tens of millions or maybe over 100 million.  I’m willing to be educated otherwise, but that 1.5 billion number just doesn’t scan to me.  (You can look these up on SX Works’ handy NOI Lookup, the best tool for finding out if you have one filed on your song.)

The only way I can think of that both Variety’s original statement and the correction could be true would be if there were a voluntary retroactive unmatched payment by the digital services as part of the deal for the Music Modernization Act.  Even so, $1.5 billion is awfully generous, even for the biggest companies in commercial history.  But then, if it is a voluntary payment, how would you ever know if it isn’t also voluntarily disclosed?

So I’m looking forward to seeing if there’s a further correction.  It could just be confusion on the part of Variety or their source.  Time will tell.  But the entire exchange shows that the Copyright Office should never have allowed Spotify, Amazon, Google et al to get this started.  Strangely enough, Apple seems to get by just fine without using “address unknown” NOIs.

You Can’t Find What You Don’t Look For: Spotify, Google, Pandora Can’t Find Aerosmith’s Steven Tyler and Joe Perry–but what about Martha Stewart

March 28, 2018 Comments off

In another odd twist in the 60,000,000-plus “mass NOI” debacle, a five second search of the SX Works NOI Lookup database reveals that Spotify, Google, Pandora and other services can’t seem to locate Aerosmith songwriters like Steven Tyler and Joe Perry, not to mention their co-writers like long-time Bryan Adams collaborator Jim Vallence.  [Aside from that absurd result, the SX Works database is handy for revealing what certainly appear to be potentially bootleg releases for which a compulsory license cannot be obtained anyway.]

Aerosmith

If you’re not familiar with the “mass NOI” problem, here’s the explanation in a nutshell:  two factors collide to create massive confusion.  Due to what has now become a major loophole in the 1976 Copyright Act, if a song copyright owner is not identifiable in the public records of the Copyright Office, then a user like Spotify can serve a notice (“NOI”) on the Copyright Office notifying the world that Spotify intends to use the song in reliance on the statutory (sometimes called “compulsory”) license under the Copyright Act.  (Any songwriter is likely to have received their share of the millions upon millions of these NOIs sent to song owners by MRI, HFA and other agents acting for the services.)

Sending notices to the Copyright Office was something of a backwater operation for the decades after 1976 up until April 2016.  At that time the Copyright Office began accepting millions upon millions of these NOIs from services claiming they could not find the copyright owner.  By serving the NOI on the Copyright Office the service claimed a vaild compulsory license meaning they could not be sued for unlicensed uses.  Because no one at the Copyright Office examined the NOIs to see if they were properly filed, all of the tens of millions of NOIs were blindly accepted.  (If you want to drill down on the details, you can read an article on the subject I wrote that was published in the American Bar Association Entertainment & Sports Lawyer.)

The common reaction to the collision of these factors is one of sympathy for the Copyright Office.  We are told that the Copyright Office lacks the resources to review each of the millions upon millions of NOIs.  I understand that–but the proper reaction in that situation is not to let these companies get away with it–the proper reaction is to shut down the mass NOI filing and tell Congress to do something about it.  I know that Members of Congress were aware of the problem and did nothing about it, although somehow some people seem to think that the Music Modernization Act is the answer to the problem.

It’s not–it sweeps it under the rug.  But which notices are being swept under the rug, exactly?  Let’s take Aerosmith’s Sweet Emotion as an example.  Many music users have filed these “address unknown” mass NOIs on Sweet Emotion.  Remember–the loophole allows a royalty free compulsory license if the copyright owner cannot be located “in the registration or other public records of the Copyright Office.”  (17 USC 115(b)(1).)  It doesn’t matter if the music user seeking the compulsory license could easily find the owner in the PRO databases or has actual knowledge (such as is frequently the case with Google’s much ballyhooed Content ID or MRI’s Songdex)–what matters under the Copyright Act is if the Copyright Office has the information.

So here’s the “addres unknown” NOI filings on Sweet Emotion:

Sweet Emotion

These filers attest that they have looked for the copyright owner in the Copyright Office public records as required in the filing instructions:

In the case where the Notice will be filed with the Copyright Office pursuant to paragraph (f)(3) of this section, the Notice shall include an affirmative statement that with respect to the nondramatic musical work named in the Notice of Intention, the registration records or other public records of the Copyright Office have been searched and found not to identify the name and address of the copyright owner of such work.

This language is fixed in the template for each NOI served on the Copyright Office.

So you might not expect to find this Copyright Office public record on Sweet Emotion:

Sweet Emotion CO Catalog

So it seems pretty clear that Sweet Emotion does not qualify for an address unknown NOI and it also appears that the attestation in that “address unknown” NOI is false.  It’s also pretty likely that the music users are actually paying royalties under voluntary licenses that cover the Aerosmith titles.  They are also likely paying under the performance rights licenses to the Aerosmith PRO.  If that’s true, money isn’t the issue.  So if it’s not that they care about paying the royalty, then why are these users filing “address unknown” NOIs on titles for which they are highly likely to know the song owner’s address, making the filing false.

You’d have to ask the services why they would want to have a voluntary license–which has a term that expires–and a compulsory license–that is essentially perpetual and will continue on past the expiration of the voluntary license.  There is an assumption that voluntary licenses will be renewed, but of course if you have a side-by-side compulsory license there’s no incentive for the user to renew the voluntary license when they could just rely on the compulsory and let the voluntary license expire.  And avoid paying those nasty minimum guarantees.  Particularly if the controversial Music Modernization Act is passed into law because all those mass NOI “address unknown” filing will be automatically swept into the MMA’s automatic blanket license.

Of course if anyone bothered to check any of these mass NOIs–this means you, Copyright Office–they would have found a fly in the ointment.  Or maybe millions of flies.

And what is even more interesting is that it is highly likely that somebody at the services knows their company’s attestation is false (perhaps hundreds of thousands or even millions of attestations).  Which leads us to Martha Stewart.

If you recall, one of the transgressions that got Martha Stewart some time in stir was making false statements to agents of the federal government.  The particular statute that Ms. Stewart violated was 18 U.S.C. Sec. 1001 which states:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—

(1) administrative matters, including a claim for payment, a matter related to the procurement of property or services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch [such as the Copyright Office, part of the Library of Congress]; or

(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

 

You Can’t Find What You Don’t Look For: Spotify May Not be the Only Source for Aaliyah Bootlegs

March 15, 2018 Comments off

Aaliyah

Vanessa Okoth-Obbo’s eye-opening and must-read post about possible Aaliyah bootlegs on Spotify confirms a suspicious looking trend on digital music services–bootleggers finding another way to profit from lax policing by the “saviours of the music business” like Spotify.

As Vanessa writes in Factmag:’

Aside from her 1994 debut Age Ain’t Nothing but a Number, most of Aaliyah’s music has never officially been available on major streaming platforms. Ola [a fan Vanessa interviewed for the story] added ‘More Than A Woman’ to Old School Hip-Hop via the album R&B Divas (International Version), one of two compilations with the same title released simultaneously by, itseems, Universal Music International in 2007. While listening to the playlist from his phone last month, ‘More Than A Woman’ came on and Ola idly tapped the song’s title, something that normally takes the user to the source album. But instead of R&B Divas, which features music from artists like Rihanna and Amy Winehouse, Ola says he found himself looking at the full tracklist for what appeared to be a bootleg version of Aaliyah….

The sophistication of methods for getting songs onto the platform in the first place accounts for some of this. Spotify has agreements with most major labels who, in turn, handle the process for their signed artists, and an adjacent economy of content aggregators has sprung up to assist those with no direct label backing. Distributors like CD Baby and TuneCore help independent artists put their music on the leading digital services and collect any royalties resulting from streaming or sales, for varying fees.

It’s highly probable that the Aaliyah albums were bundled in via a similar third-party service…

Taking advantage of his Spotify Premium membership, Ola moved quickly to download his favorite Aaliyah songs to his device while he could. In a blunt reading of his action, it represents money out of someone’s pocket — business is business. Still, the chances of a fan turning down a chance to engage with their idols’ work are slim, in any era or arena.

That leaves Spotify, and whoever is responsible for uploading the Aaliyah albums without permission, open to scrutiny. For Gary Pierson, the matter is clear cut: a service is liable for what it hosts. “This can get more nuanced in the case of ‘user generated content’ such as Youtube videos, but for the streaming services it’s pretty clear,” he summarized. The streaming behemoth has a lot on the line: Spotify recently moved to go public, filing for a direct listing on the New York Stock Exchange in a money-generating step that some analysts have deemed unconventional. While the move could bring in much-needed capital to help the company resist copyright lawsuits (to which they are no stranger), a music streaming service cannot risk the stain of failing to protect artists’ interests…

Well…that ship has sailed.  We all know Spotify has demonstrated a lack of control over what’s on its systems for songs, and it increasingly looks like all of the services have fallen down on making sure that there’s no bootlegs in their catalogs.  So I ran the name “Aaliyah” through the SX Works NOI Lookup to see what came back–because if there’s no license for the sound recording, they can’t get an compulsory license for the song.  (If you’re new to the mass NOI problem, read my article from the American Bar Association Entertainment & Sports Lawyer).  

Sure enough, as you can see from the screen capture above, Google Amazon, Pandora and Spotify have all filed mass NOIs on Aaliyah, which means they are able to avoid  paying royalties on Aaliyah’s songs.  Some of these tracks may be from legitimate sources, but Vanessa’s story makes you wonder and points out yet again the need for the Copyright Office to take some responsibility for allowing these NOIs to be filed in a manner the Congress never intended.

 

 

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

March 6, 2018 3 comments

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

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

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

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

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

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

Neville Brothers.png

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

Meters

Allen Toussaint?  Oh yes.

Allen

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

Preservation

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

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

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

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

 

 

 

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

March 6, 2018 Comments off

Blocboy Look Alive SX

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

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

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

March 2, 2018 Comments off

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

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