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Posts Tagged ‘Music Modernization Act’

@MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

Otis Redding sat on the dock of the bay in 1967. Roy Orbison sang for the lonely in 1960. Miles Davis was kind of blue in 1959. These artists’ iconic recordings live on today and are frequently played across streaming services, satellite radio, and FM radio. Tell Congress to make Big Tech pay its fair share.

via @MusicFirst: Congress, end a longstanding injustice for legacy music creators #irespectmusic — Artist Rights Watch

@Smokey_Robinson Gives Moving Defense of Artist Rights at @SenJudiciary Hearing on MMA

Smokey Robinson is one of the best witnesses for artist rights.  Mr. Robinson was on stage yesterday in the clinch at the Senate Judiciary Committee hearing on the Music Modernization Act, the new omnibus package that finally includes all of the pre-72 protections and closes that loophole for Big Tech.  (Read his written testimony here.)

The records of the 50’s and 60’s aren’t called “classics” because of their age. They’re called classics because of their greatness. They still resonate today. They add value to our lives and bring people together. They define America.

While Mr. Robinson’s written testimony was eloquent and inspiring, where he really showed his genius was in his ability to synthesize key issues and think on his feet in front of both the cameras and the U.S. Senate.

Watch this clip in which he corrected DiMA head Chris Harrison about a cavalier statement regarding “artists can always sue.”  This is what these people always say, and too often our Congress full of lawyers gets drawn into the “lawsuit as remedy” thinking–which most of the time is a dodge.  I’d even go so far as to say it’s laziness.

As Mr. Robinson pointed out so precisely, artists and songwriters can hardly ever sue because they can’t afford to hire a lawyer or even investigate their rights.  So if that’s the result–and a good justification for the copyright small claims court–that’s no remedy at all and results in an income transfer.  It’s called YouTube, Twitter, Facebook–the biggest income transfers of all time.

Fortunately, Texas Senator John Cornyn, a supporter of the pre-72 fix, gave Mr. Robinson a chance to hit it out of the park and he took it.  Smokey the Closer.

If there ever was a better defense of the need for statutory damages and attorneys fees (the “private attorney general” clause of the Copyright Act), I haven’t heard it.

And while no one said it at the hearing and taking nothing away from Mr. Robinson, it must be said that the only reason that this bill is where it is, the only reason that the pre-72 and mechanical licensing fixes are where they are, is because of Howard Kaylan & Mark Volman, David Lowery, Melissa Ferrick, Bob Gaudio and Bluewater Music and the lawyers like Henry Gradstein (both Turtles and Ferrick class actions), Sanford Michaelman and Richard Busch.  And that’s the fact.

@mikehuppe: “We are Making Major Progress on Music Licensing Reform – Together” #irespectmusic — Artist Rights Watch

While several pieces of music legislation have been introduced in the Senate, there is not a single comprehensive package yet. We are encouraging our Senate allies to bring these many issues together into a single, comprehensive Music Modernization Act, like the bill passed in the House.

via @mikehuppe: “We are Making Major Progress on Music Licensing Reform – Together” #irespectmusic — Artist Rights Watch

@scleland: The Huge Hidden Public Costs (>$1.5T) of U.S. Internet Industrial Policy — Artist Rights Watch

April 16, 2018 Comments off

[Editor Charlie sez: Scott Cleland takes an excellent deep dive into the “leechonomics” of the safe harbors afforded to the special people who are members of the Internet Association and the Digital Media Association. This corporate welfare was most recently replicated in the punitive Music Modernization Act retroactive safe harbor bolstering profits from copyright infringement for the special people which passed the House Judiciary Committee on the same day that the Congress cut back the CDA 230 safe harbor for many of the same special companies and cut their profits from sex trafficking.]

via @scleland: The Huge Hidden Public Costs (>$1.5T) of U.S. Internet Industrial Policy — Artist Rights Watch

Will DOJ Consent Decree Review Obviate Any Rationale for the Music Modernization Act? — Music Tech Solutions

April 2, 2018 Comments off

Let’s be clear–one reason why there are problems with mechanical licensing in the US is the loophole created by the government consent decrees that block ASCAP and BMI from issuing a “unilicense” for both performances and streaming mechanicals.  I have argued for years that PROs should be allowed to administer existing statutory mechanical licenses for services that they already license on the performance side of the song.  Personally, I think it is the main reason for creating the situation (such as the mass address unknown NOIs) that gets abused by the services like other loopholes.

I’m not alone in making this argument for “bundling” rights to be administered by PROs: According to the Copyright Office Music Licensing Study (pp. 103-104):

NSAI, for example, opined that ‘[t]he most efficient path to digital service providers obtaining necessary licenses would be to allow the PRO’s to license and collect mechanical royalties’….NMPA suggested that bundled rights could be sought directly from the music publishers that own and administer the song in question.   But the PROs suggested that their existing structures could be leveraged to facilitate bundled licensing on a blanket basis, if only the consent decrees were amended.”

My view is that bundling should occur both at the publisher level and also at the PRO level for all publishers who do not license directly.

Remember–streaming mechanicals track the exact same song, the exact same use, the exact same copyright owners, the exact same transactions and the exact same services as the PROs already license on the performances.  The PROs already have the most comprehensive ownership databases for songs and those databases are immediately accessible.  This is likely to remain true for a long time.

The ASCAP and BMI consent decrees have been in place for decades.  We accept them as a fact of life, something of an immovable object.  For example, the only part of the Music Modernization Act that directly affects ASCAP and BMI relates to changes that these PROs evidently would like to make to the consent decrees but cannot get the Justice Department to address.  (“Part” may be overstated–it’s about 1-1/2 pages out of the 151 page bill.)

But–what we were told at the outset of the MMA is that legislation to sunset the consent decrees would never pass due to the lobbying power of the digital media companies, the broadcasters, and the general business establishments.  The MIC Coalition, in other words.  And supposedly we can’t beat them, so we need to give up on that idea and take what we’re given and like it.  (Good thing that guy was not at the Alamo, the Edmund Pettus Bridge, Thermopylae or the Battle of Britain.  Horatius he ain’t.)  This is, of course, entirely the wrong approach–if that thinking is not the ennui of learned helplessness, what is?  As the Reverend Martin Luther King, Jr. said, “Ultimately a genuine leader is not a searcher for consensus, but a molder of consensus.”

Evidently, no one considered what would happen if the consent decrees actually went away either entirely or substantially because the DOJ wanted them to.  If that happy event came to pass, I would suggest that there would be little to nothing in the Music Modernization Act of any value or relevance to ASCAP and BMI.  If anything, the collective established by the MMA is or could easily become a direct competitor of all the PROs which is likely why the broadcasters are “positively neutral” on the bill.  I seriously doubt that any of them anticipated the consent decrees might go away.

Makan Delrahim, the new head of the Department of Justice Antitrust Division, may have just obviated any reason why the PROs should support the MMA or perhaps whether the MMA is even relevant.

During a speaking engagement on March 27 at Vanderbilt Law School, Mr. Delrahim gave us some insights into his plans for the ASCAP and BMI consent decrees in a discussion with Professor Rebecca Allensworth.  As reported in Broadcasting & Cable he said:

“As public agencies we need to take a look and see if those consent decrees are still relevant in the marketplace,” which he was clearly signaling was up for debate. “If they have solved the competitive problem,” he said, “they could become anticompetitive tools over time[.   I]f they were not necessarily the best ideas at the time, it doesn’t make a whole lot of sense for them to stay.”

Mr. Delrahim has put his finger right on the problem.  In my view, the consent decrees have become weaponized–for example, the last head of the Antitrust Division was closely linked to Google and after an ostensible review of the consent decrees, suddenly launched into the absurd “100% licensing” episode to the great–albeit short lived–satisfaction of the MIC Coalition.

Not only is there serious competition in the PRO marketplace unlike there was in 1941 when the ASCAP consent decree started, the 2015 SESAC acquisition of the Harry Fox Agency actually demonstrates that if left alone, the marketplace will close the mechanical license loophole that the MMA purports to solve.   There is no longer a need for the consent decrees, rate courts, none of it.  Not only is there no need, but if the MMA passed, SESAC/HFA would still be fighting a rear guard action against the MIC Coalition’s efforts to bring the company under a consent decree while the collectivists under the MMA would enjoy an antitrust exemption.

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This isn’t to say that the PROs should get an exemption from the antitrust laws after sunseting the consent decrees, far from it.  But it does mean that the broadcasters, the MIC Coalition and the Digital Media Association should not be allowed to play with the “anticompetitive tools” of the entire consent decree apparatus.

So it appears that Mr. Delrahim thinks there’s actually a chance that the consent decrees could go away.  If that happens, the PROs will have a golden opportunity to close the mechanical licensing loophole without all of the apparatus of the MMA.  In that new world, the major publishers would possibly not have to continue to use pretzel logic to administer the rights in their catalogs and the PROs could provide coverage on everything else with suitable protections for the writer’s share of revenue.

And unlike the MMA, that world would actually be getting the government further out of the lives of songwriters.  It would avoid songwriters being beholden to the DiMA fox that would at least financially control the MMA collective’s chicken coop.  Meet the new boss, same as the old boss.

It would also put to rest the ridiculous premise that the biggest corporations in commercial history need the government to protect them from songwriters–corporations that are themselves subject to antitrust enforcement, at least in Europe.  And that may be the other shoe Mr. Delrahim could be dropping.

If either of these regulatory modernizations happen, the Music Modernization Act will be seen for what it is–an 11th Century solution to a 21st Century problem, and a relic of the last war.  That’s a common theme in our business but why not encourage Mr. Delrahim for his foresight and dedication to modernize the free market in the absence of government regulation rather than descending once again through the looking glass.

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via Will DOJ Consent Decree Review Obviate Any Rationale for the Music Modernization Act? — Music Tech Solutions

Must Read by @MarcHogan in Pitchfork: Congress Is Making Headway on a Bill to Modernize How [Songwriters] Are Paid — Artist Rights Watch

March 21, 2018 Comments off

[Editor Charlie sez:  Marc Hogan, Senior Staff Writer at Pitchfork, takes a detailed and objective look at the Music Modernization Act and makes some critical recommendations for amendments to the MMA.  This is a must-read for all songwriters wanting to better understand the nuances of the legislation.]

In December, [U.S. Representative Doug] Collins introduced the Music Modernization Act(MMA), a 109-page piece of legislation he claims “would literally usher copyright laws into the 21st century.” A Senate version followed a month later. Born from a year of behind-the-scenes negotiations, the proposed law has bipartisan support and—unusual for music-related efforts in Congress—endorsements by lobbying groups representing a broad swath of the industry, from record labels and publishers to streaming services and FM broadcasters. (Some of the bill’s advocates haveargued that it should pass because this time, for once, it could pass.) Provisions of Collins’ bill are expected to be included as part of a package that the Grammys’ policy chief has expressed “very high confidence” will make it onto President Donald Trump’s desk sometime this year….

Though lawmakers are describing the MMA as a “consensus bill,” most of that consensus appears to have been between lobbyists at the negotiating table. While publishing and record-label trade groups advocating for the MMA claim they have cosigns from more than 26,000 songwriters, some in the industry question how much these survey respondents were really told about the nitty gritty. This bill simply shouldn’t be crammed through before the rest of the music community understands what it is and offers ways to improve it. And it’s not just that working-class musicians haven’t been invited to the table—it’s also that the biggest artist advocates they could find are folks like Dionne Warwick and Steven Tyler, neither exactly representative of where songwriting is headed and where royalties should follow….

This alphabet soup of administration would be a lot simpler than the current system, but the details matter. As proposed, the streaming services would fund the MLC, and a board of publishers and songwriters would oversee it. At last (unofficial) count, the board would consist of 10 publishers and only four songwriters. In an open letter, songwriter and big-band leader Maria Schneider has called for an equal, 50-50 split between publishers and songwriters, along with assurance that songwriters would be able to choose their own board representatives. She has a point, and Congress should make the change.

Read the post on Pitchfork.

 

 

You Can’t Find What You Don’t Look For: Google Can’t Find The Beatles

March 18, 2018 1 comment

Beatles

The “address unknown” saga continues–it appears that Google and Amazon can’t find John Lennon and Paul McCartney (pka The Beatles) in the public records of the Copyright Office in order to send their notice for a compulsory license.  Because it’s not enough to have a way to force songwriters to license to them at the government’s cheesy rates.  A quick check of the SX Works NOI Lookup database shows us how bad it really is.

But two of the biggest companies in commercial history shouldn’t feel bad–Spotify can’t find The Beatles, either.  That’s right–the saviours of the music business can’t find one of the biggest bands in history.

Beatles 2

Of course what is interesting about Big Tech’s inability to find Lennon & McCartney in the public records of the Copyright Office is a little inside baseball.  If you are prepared to believe that these companies actually look for the copyright owners of songs they want to claim as “address unknown” (which I am not prepared to believe), Lennon & McCartney’s publisher would have registered the copyright in, say, Penny Lane when it was written or released.  (The Lennon/McCartney publisher is Northern Songs which I believe was administered by EMI at the time.  For those reading along at home, that’s 424 Church Street, Suite 1200, Nashville, TN 37219, at least for the moment.  They’re in the book.)

Penny Lane was released in 1967 as a double A side single (remember those?) with Strawberry Fields Forever.  It was later included on Magical Mystery Tour also in 1967.  That date is significant because it is before January 1, 1978–which is an important date because that is the earliest date that can be searched online in the Copyright Office Public Catalog.

If you agree with me that it doesn’t matter because they’re not looking anyway, then this is not an important fact.  If you are prepared to give these Digital Media Association companies the benefit of the doubt, you would look at their “address unknown” NOI filing and notice that the 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.)

If they are looking in the pre-1978 records, then how would they accomplish this search? Copyright Office Circular 23 tells us:

Together, the copyright card catalog and the online files of the Copyright Office provide an index to copyright registrations and records in the United States from 1870 to the present. The copyright card catalog contains approximately 45 million cards covering the period 1870 through 1977. Registrations and records for all works dating from January 1, 1978, to the present are searchable in the online catalog, available at http://www.copyright.gov/records….

The copyright card catalog is located in the Copyright Public Records Reading Room (lm-404) on the fourth floor of the James Madison Memorial Building of the Library of Congress. The public can use the catalog, which is staffed
by a Copyright Office employee, between 8:30 am and 5:00 pm, eastern time, Monday through Friday, except federal holidays. Before starting your search, consult Circular 22, How to Investigate the Copyright Status of a Work, available on the Copyright Office website or from the staff member on duty.

Alternatively, Copyright Office staff can search copyright records for you.

So…if these companies really are doing the research they attest to doing, the Copyright Public Records Reading Room must be quite a busy place.  In fact, there must be a line out the door.  Or the research staff must be buried.

Or…these companies are telling what we call in the trade…a lie.

And of course, nobody is checking.

Why does this matter?  Because the Music Modernization Act would have us all rely on the kindness of strangers in doing the intial match for monies heading for the black box. Why in the world would you ever trust these people to do that matching if they really can’t find two of the most successful songwriters in history?  Or if they lie about it?

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