It’s important to remember that David Lowery could have just sued Spotify over his own catalog. He didn’t do that. He brought a class action for the good of all songwriters who get overlooked and disrespected by Spotify and that’s a lot of people. I don’t know Melissa Ferrick, but I would bet the same could be said of her.
The plaintiff who can’t be bought off is a defendant’s worst nightmare. This is particularly true in David’s case because in addition to whatever money damages the class may be awarded, David is also asking for an injunction to require Spotify to bring in an independent third party compliance examiner to fix Spotify’s massive failure to identify copyright owners.
That injunction is probably more fear-inducing than whatever the payment might be, because that will once and for all fix the problem and eliminate the slush fund–or force Spotify to stop exploiting uncleared tracks. Make no mistake–unpaid royalties are a source of interest-free loans. While each songwriter may be owed a relatively small amount on average, when the service holds on to royalties they owe to thousands of songwriters, that can add up to millions of dollars.
Why do I think that Spotify is most afraid of someone they don’t control getting inside the company and looking under the hood? In Spotify’s motion to strike Lowery’s class action (and in the cut and paste job filed in Melissa’s case) Spotify’s lawyers say:
Next, Plaintiff wrongly contends that whether Spotify “made accurate royalty payments” is a common question [among class members]. To the contrary, that question could be answered, if at all, only on an individual song-by-song basis, and only after a detailed investigation into the streaming history and licensing circumstances of that song, as well as an accounting audit with respect to that song.
That task will be daunting—if not impossible—as it will require individualized inquiry into the royalty payments for each song.
Set aside how ludicrous it is to question whether getting stiffed on royalties is NOT a common question among the songwriters who got stiffed, the lawyers are right that it would require “a detailed investigation into the streaming history and licensing circumstances of that song, as well as an accounting audit with respect to that song.” But the Spotify lawyers are wrong about this: “That task will be daunting—if not impossible—as it will require individualized inquiry into the royalty payments for each song.”
That’s called a royalty compliance examination in the trade, sometimes shortened to an “audit”. Audits are neither “daunting” nor “impossible.” These audits happen all the time. In fact, they happen so frequently that the Harry Fox Agency has been conducting an audit of Spotify for several months now according to statements made by HFA representatives at the California Copyright Conference this week.
You may ask how could HFA be conducting an audit of a service for which it rendered outsourced song research and royalty accounting services. You may also ask, isn’t that HFA auditing itself? And these are questions you certainly should ask.
If HFA can audit Spotify, it sounds like what David is asking for is not “daunting–if not impossible” at all. It’s so possible that Spotify probably has already accrued a liability account to cover the HFA audit settlement payment to the songwriters represented by HFA’s publishers.
So let’s be clear–David is not in this to enrich himself. These positions are not those of someone who is looking for a quick payment. They are the positions of someone who wants to get to the truth.
And exactly what Spotify needs if they want to ever get out of the haunting treachery that Spotify have managed to smear all over themselves. Spotify should want what David wants–a court supervised examination of Spotify’s accounting practices. That’s the problem that Spotify has with plaintiffs like David and Melissa.
Because the question Spotify can’t answer is why they knowingly used the music without a license.
These plaintiffs want what’s right for everyone. And that’s a big problem for Spotify.
The Future of What is a great podcast series with the awesome Portia Sabin on important topics in the music business. In this episode, Portia dives into the class actions against Spotify with a series of interviews including songwriter (and plaintiff) Melissa Ferrick, Howell O’Rear, Christiane Kinney and me.
“And if they could talk to one another, don’t you think they’d suppose that the names they used applied to the things they see passing before them?”
The Allegory of the Cave by Plato, line 515b2.
David Lowery is leading a class action lawsuit against Spotify for failing on what appears to be a massive scale to do three crucial things: license rights, pay reproduction or “mechanical” royalties for songs it exploits, and fix Spotify’s deeply flawed song licensing and essentially nonexistent mechanical royalty accounting systems for the future. Songwriter and recording artist Melissa Ferrick has separately brought a similar class action.
It’s A Mystery
We now have a legal response from Spotify to give us some idea of how Spotify wishes the world to view its excuse for its massively flawed song licensing practices. And here is what it boils down to–because there has never been a “global rights database” in the history of recorded music, it is just impossible to know (1) who owns what, (2) what any song might actually be given similar song titles, (3) which songs might be in the public domain, and (4) how the music industry has managed to stumble along for the last 100 years is a mystery of biblical proportions. And oh, by the way–any claim to class membership will be as complex to solve as the Happy Birthday case. Because songwriting is, as Philip Henslowe might say, just a big mystery.
A mystery that justifies massive copyright infringement.
The Ontological Definition of Risk
One might think that the absence of such a database would be a reason that songs did not get exploited at all, for who could ever know anything about anything having to do with any song?
And since you couldn’t know, that is, because according to Spotify it is an ontological certainty that it is beyond human comprehension to acquire any concrete knowledge of the existence and form of any song, anyone wishing to use any songs without a direct license with a robust indemnification would have to be INSANE?
No wait–Spotify’s unspoken conclusion appears to be that because obtaining such knowledge is impossible, then Spotify have done nothing wrong. Meaning everyone should be able to exploit all songs in any way they like without fear of any day of reckoning because it’s all just a mystery. That’s certainly what Spotify did and what they now seek absolution for. Plus–Spotify cites to the U.S. Copyright Office and the National Music Publishers Association to support this very argument. (Which of course is in the category of what a great man once called “pure applesauce” or as a less great man said, pure unadulterated “Fancy” Grade Bullshit.)
So what makes bullshit “Fancy”? Spotify’s lawyers actually do an excellent job of revealing the contours of the business risk that Spotify intentionally undertook when they launched the company in their biggest market. Because the obvious conclusion one comes to in reading this parade of horribles and red herrings trotted out by the lawyers is that knowing all these risks, Spotify did it anyway.
And that’s the part where the lawyers don’t do such a great job. They never once called Judge Beverly Reid O’Connell’s attention to Spotify’s public statements about accruing royalties for unlicensed songs. Because it seems that the lawyers are actually arguing against their client’s public position–if Spotify can accrue royalties for songs they know are not licensed (setting aside the question of how they even know what rate to accrue royalties at for unlicensed songs), then how can it be that Spotify has no way of knowing which songs are unlicensed based on the lawyers’ parade of horribles? According to Spotify:
When one of our listeners in the US streams a track for which the rightsholder is not immediately clear, we set aside the royalties we owe until we are able to confirm the identity of the rightsholder. When we confirm the rightsholder, we pay those royalties as soon as possible.
So at best these songs are “known unknowns”–Spotify knows that it doesn’t know who owns the song. That precludes a direct license for the known unknown (otherwise the song would be a known known), and probably means that Spotify did not send in the unknown copyright owner NOI to the Copyright Office. Of course, that also means that Spotify knows that it exploited the song without a license…which is kind of the point of this whole thing, right?
So which is it–Spotify knows which songs are not licensed and are accruing royalties at some theoretical rate (to the tune of millions of dollars according to press reports), or song ownership is such a mystery that such an accrual is not capable of mortal knowledge?
Don’t you think the Court might want to know about that accrual part? And learn it from Spotify’s lawyers? Or do you think that if they raised it the Court might be confused by that A and Not-A business?
Spotify has told us that they intend to pay every penny they owe and they have accrued royalties for songs for which they have no licenses. That means they know which songs they have been using and for which they have accrued royalties. Now that Spotify has been called out, rather than publishing a list of these songs, Spotify tries to hide behind the lack of some unicorn database to excuse their bad behavior. A unicorn database that has never existed. And certainly never existed when Spotify decided to enter the U.S. market.
Because if the situation really was as dire as Spotify would have you believe, then how could they ever believe that any license they ever get for anything is real, that it actually represents anything more than a flickering shadow on a cave wall? So why pay anyone anything ever?
The Better to Stream You With, My Dear
And this is where the bullshit gets really fancy. Because whatever the Copyright Office, NMPA or anyone else said about the desirability of the unicorn database, they never said that their general comments about the general state of things that would be nice to have supported the theory that Spotify could feast on the creative output of generations of songwriters without licenses or compensation in the absence of the unicorn.
These cases are of particular interest because they expose both Spotify’s hypocrisy and the potentially fatal flaw that streaming music boosters simply do not want to acknowledge–streaming services are in such a mad rush for IPO riches that they have little idea what music is or is not licensed. Spotify’s hypocrisy because it has from the beginning tried to mask its craven greed in the mantle of saving the music business from piracy like the Big Bad Wolf in grandma drag.
When the Going Gets Tough, the Tough Get Fancy
To put this in perspective, estimates in the press are that Spotify has failed to license or pay royalties for at least 10% of the total number of songs that Spotify offers on its service, and some estimates are as high as 25%.
Before you blow that off as a small percentage realize the number of songs that Spotify is distributing–some 30 million songs with daily increases of tens of thousands. So that means that Spotify has failed to license about three million songs at a minimum.
Three million songs. This is copyright infringement on a massive scale, a scale so large that it sounds…well, what would you call it? Certainly big enough that it overwhelms the ability of any one songwriter to effectively bring the law to bear.
This is the kind of scale that one would expect the government to get involved with.
At least you might expect the government to get involved if you thought that songwriters should expect at least as much protection from their government as do their cousins amongst the primates, amphibians and fowl, not to mention the land itself. For it is undeniable that the brown pelican, the snail darter, the desert tortoise and even wetland marshes get greater protection from the U.S. government than songwriters. Or as an afternoon hanging around committee rooms of the Texas Legislature will show you, hogs have more lobbyists than artists.
So if you’re asking yourself why David Lowery and Melissa Ferrick have to sue Spotify for massive failures to comply with the law instead of the government, there’s a simple explanation.
Songwriters are just the wrong species. Ask BP what happens when you pull that kind of thing on a brown pelican.
So make no mistake–that’s why the songwriters have to take care of what should be the government’s problem. And that’s some pretty fancy bullshit.