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Ron Wyden’s Teachable Moment: Should one Senator be allowed to stop 415 Members of Congress on the Pre-72 Fix

June 27, 2018 Comments off

It’s rare that we get insight into just how sleazy the Congress can be–but Senator Ron Wyden is giving us all a guided tour when it comes to his singular dedication to screwing pre-72 artists.  There is a process in the Senate called a “hold” (see this memo from the Congressional Research Service describing the rules for holds) which can seriously slow down passage of legislation.  Any one senator can put a hold on any bill, and Senator Wyden appears to be threatening to put a hold on the Music Modernization Act if he doesn’t get significant changes to the pre-72 fix, probably before Thursday’s “markup.”

That would be the pre-72 fix in the CLASSICS Act that was just passed by 415 Members of the House of Representatives.  That’s right–ONE senator can replace the judgement of FOUR HUNDRED FIFTEEN elected representatives of the American people.  ONE senator can crush the hopes of thousands of pre-72 artists or their heirs, because some people have waited so long to get a fair shake from the Congress that they died.

Why would any senator do such a thing?  You can kind of understand this anti-democratic shenanigans on a controversial bill, or a bill that barely passed the House.  On this bill, however, I have to believe that Wyden’s threatened hold can only be explained by blatant cronyism and swamp fever.  And Oregonians need to know the dark side to Ron Wyden.

MTP readers will remember the story of Senator Ron Wyden (D-OR) and his descent into the swamp.  You might think, what’s a senator from Oregon doing up to his eyeballs in cronyism and the slime?  Easy answer–cheap hydroelectric power from Oregon’s part of the Columbia River that powers many huge data centers owned by…you guessed it…Google, Facebook, Amazon, Rackspace.  Cheap power that goes straight to their bottom line.

 

heres-steam-shooting-out-of-the-dalles-data-center-in-oregon-as-its-cooling-down

Columbia River water vapor burned by Google’s Data Center at The Dalles, Oregon

 

All get tax breaks of dubious value to Oregonians according to a state audit and cheap power, crowding out local businesses and residents.  Each job created by these highly automated data centers costs the local communities up to $800,000–which might make it worth it to pay the companies to stay away.

Google, Facebook, Amazon and Rackspace all are members of the Internet Association, home to Mr. Shoegazer who gives “voting with your feet” a whole new meaning.   Google and Amazon are also members of the Digital Media Association or “DiMA”.  And DiMA’s grubby little paws are all over the Music Modernization Act, particularly the blanket mechanical license which reads like tech industry lobbyists wrote it.

And Google’s grubby little paws are all over Public Knowledge and the Electronic Frontier Foundation, both card carrying members of the Google Shill List and both leading the charge against the CLASSICS Act, now part of the omnibus Music Modernization Act in the Senate.  Remember, the omnibus Music Modernization Act includes CLASSICS as the fix on the pre-72 loophole .  CLASSICS allows artists who recorded prior to 1972 and their heirs to benefit from digital royalties when their recordings are played on SiriusXM, Pandora or any other noninteractive radio platform.

Wyden has proposed an insanely complicated and unworkable alternative to the version of CLASSICS that got the Music Modernization Act passed in the House.  The only reason that anyone is taking him seriously is because of his threatened hold and he’s going to try to jam this philistine and nonsensical alternative right down the throats of all the artists who had their hopes lifted when the House passed the bill unanimously.

All that Wyden is doing is using the hold system to leverage his way into jacking with the copyright term and throwing a bone to Google, Lessig and the entire anti-copyright and anti-artist crew.

And here’s what he should get for it…

Nothing.

He should get nothing at all and should be sent packing.  Let him place his hold and see what happens.  He may be narcissistic enough to believe that he’s entitled to replace the vote of 415 of his colleagues with his own cronyism, but we don’t have to buy it.

Nothing.  He gets nothing.

 

Must Read: @zvirosen Critiques Florida Flo & Eddie Ruling: Another Season, Another Common-Law Copyright Opinion — Artist Rights Watch

October 30, 2017 Comments off

The Turtles state law case in Florida on pre-72 case against SiriusXM gets a road bump from a results-oriented decision from the Florida Supreme Court.

via Must Read: @zvirosen Critiques Florida Flo & Eddie Ruling: Another Season, Another Common-Law Copyright Opinion — Artist Rights Watch

#irespectmusic and Fasten Your Seatbelts: Where Do We Go From Here on Pre-72?

September 25, 2014 Comments off

This has been a good week for artist rights–the Turtles struck a major blow in the struggle against the new boss in their case against Sirius to protect the rights of artists who recorded prior to 1972.  What should we expect now from new boss companies like Pandora, Sirius, YouTube and Clear Channel?  When we remember that the new boss is far, far worse than the old boss, there are certain events we can anticipate.  No money, bigger alliances against us and crony capitalism on steroids.  I’d love to be wrong, but don’t be surprised if I’m right.

1.  No Payments and Scortched Earth Litigation:  While it would be the right thing to do, my prediction is that it will be a frosty day in Hell before the new boss will ever pay a penny to pre-72 artists, musicians or background vocalists without a final nonappealable judgement following absolute scorched earth litigation.  The one advantage to artists about this is that the new boss litigation will bring into sharp focus exactly who these people are and whose side they’re on.  Artists will get a reminder of who they’re dealing with every single day of the lawsuits–that could go on for many years.  Yes–they have that much disdain for artist rights.  You have to ask yourself when does disdain cross over into something much darker.

2.  Alliance of Big Tech and Big Radio:  Don’t forget that broadcast radio is directly implicated by the Turtles decision.  Even though a Clear Channel was not a defendant, the decision could easily be interpreted to require a public performance license for pre-72 recordings at terrestrial broadcast radio.  This is the very issue that the National Association of Broadcasters has been fighting for decades, spending probably over $100 million to stop artists getting paid for radio play–which just happens to be the damages award that the Turtles asked for in their case against Sirius.  (So you have to ask, what if they just paid the royalty like every other country except a handful such as North Korea and Rwanda.)

As we saw with Pandora and Sirius’s disastrous adventure with the Internet Radio Fairness Act (“IRFA”) and the Internet Radio Fairness Coalition, the NAB no longer has to fight artists by themselves.  No, they have company.  Pandora is a member of the Digital Media Association (DiMA) for starters, which includes Amazon, Google and Apple as members.  I would bet that the market cap fluctuation of DiMA members on a brisk trading day exceeds the worldwide market capitalization of the entire music business.

And this doesn’t include DiMA’s alliances with the Computer and Communications Industry Association and the Consumer Electronics Association.  Here’s the panel at a recent “invitation only” DiMA “Congressional seminar” on Capitol Hill:Screen Shot 2014-07-20 at 3.23.11 PM

Expect to see the IRFA alliance reanimated to oppose us in litigation and especially in lobbying.  And remember–friends don’t let friends get IRFA’d.

3.  Crony Capitalist Lobbying:  I would expect to see Pandora and Sirius trot out the old standbys of “platform parity” and “full federalization” seasoned with incantations of “innovation” and “don’t break the [FILL IN BLANK]”.  It likely will be phrased like this:  “We would be happy to pay if all platforms were treated the same to preserve innovation and consumer choice.” (It’s unlikely that any royalty payment increase will be passed on to consumers.) In the case of the Turtles, this will mean that broadcast radio has to pay for pre-72 on terrestrial.  These statements will be greeted by tech industry lobbyists and publications as though someone had presented some self-evident wisdom.  Google Shill Listers will likely trumpet this as an issue of fundamental fairness, don’t break the [FILL IN BLANK] yadda yadda.  Or perhaps in the positive as in “Break the free market”, the DIMA mantra.  A THREAT TO DEMOCRACY AS WE KNOW IT.

Because it’s so fair to take advantage of a self-defined loophole that at least one judge thinks is a mirage.  And it’s so democratic to lobby your way to commercial advantage.  (So I don’t want to hear a peep from any of these people about Citizens United or campaign finance reform.)

You can also expect to see the combined lobbying brainpower of companies with over a trillion dollars in market value introduce legislation written by their lobbyists that will compete with the Internet Radio Fairness Act for cruelty.  This may well be an amendment to the RESPECT Act that will effectively gut it under the guise of “platform parity” or “full federalization”.

Understand what “full federalization” means.  Pandora has been saying they’d support the RESPECT Act if it only provided for “full federalization” of pre-72 recordings.  What that means is that Pandora wants the federal government to preempt any state law sound recording copyright protection.  This would effectively “federalize” and gut state law so that all the federal defenses to copyright infringement would be available.  Companies like Google would love that to no end.  This is because Google does not get DMCA safe harbors on pre-72 recordings (I predict this is the next big artist lawsuit).  How this helps Pandora, I don’t quite see, but then Google’s Doubleclick handles all their advertising–that is, controls their revenue–so go figure.

Dima Panel

So when you hear “full federalization” think “fully formed opportunity to screw you over”.  They will pass this off as supporting artist rights, by which they mean the “termination rights”–the rights of authors to terminate transfers and licenses established under the 1976 revision of the U.S. Copyright Act.  (Specifically pursuant to Sections 203 and 304(c) for those who are reading along.)  They won’t tell you that most recording artists will have a tough time qualifying for termination rights for a host of reasons starting with work for hire, the termination applies in the US only, and a few other things.  Like they’ve never met an artist right they didn’t want to gut.  Not that it’s not worth dealing with the termination issue for pre-72 at some point–it is.  It’s just not worth giving up all the compensation rights for 50 years or so of recorded music in order to maybe get a handful of those artists covered.  That issue can be dealt with in regular order and separately.

In other words–pre72 artists don’t have a termination right now, but they do have a right to be compensated.  Like the bully in the playground stealing your lunch money, they want you to feel like they really do have your nutritional interests at heart if you’d just lick their boots clean.

Also known as ice in winter.  Because whatever it is that Pandora and Sirius choose to do, we know from past performance it will not be the right thing to do.

So fasten your seat belts, kids, it’s going to be a bumpy night.

Register in September. Vote in November.

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Celebrity Justice and the Hidden Agenda Behind Pandora’s Internet Radio Fairness Act: Screwing legacy artists

March 13, 2013 3 comments

In case you were wondering what ever happened to the so-called Internet Radio “Fairness Act”, here’s another little taste of what Big Tech has in store for artists–particularly “legacy” artists, meaning artists with strong catalog from the past.  Let’s say from before 1972.

What’s magic about 1972?  That was the year that the US Congress recognized a copyright in sound recordings (February 15, 1972 to be precise).  “Pre-72 masters” as the recordings are known were protected by state law before that.  So it is not that these older recordings are not protected–such as those by Ella Fitzgerald, Count Basie, Bob Wills, Duke Ellington, Louis Armstrong, Buddy Holly, Glenn Miller or Robert Johnson–it’s just that they are not protected by federal law.

True to form, Big Tech and their pals at the National Association of Broadcasters are busily trying to screw artists on pre-72 masters out of public performance royalties on digital performances (webcasting, simulcasting and satellite)–and positioning themselves to screw these artists out of royalties if the Congress amends the law to complete the circle and require the payment of royalties on terrestrial broadcast radio.

How? By amending state laws to create a sneaky loophole that cuts off the application of state law protection for pre-72 masters if it happens in their privileged environment–on the Internet.  And how are they doing it?

Big Tech has two big advantages over artists, particularly older artists–they can litigate everything into the ground, which they have shown a willingness to do (see Google v. The World, but especially Google against book authors, music and film makers).

The other is through lobbying–see the Internet Radio Fairness Act and Google’s labyrinthine network of front groups.  Since most of these companies have access to the public markets where they can essentially print money to fund their litigation budgets and lobbying budgets, artists and songwriters will never be able to compete in these areas.

So you won’t be surprised to know that the current strategy of Big Tech is to try to lobby their way to amending the law in each of the 50 states to eliminate the application of state laws protecting pre-72 masters to the privileged Internet class (which may shed light on the delay in re-introducing the Internet Radio Fairness Act after it died in the last Congress).

Texas HB 1043/SB 575

A prime example of this sneaky little plan to protect The Man 2.0 is a bill currently pending in the Texas legislature is HB 1043 (Texas House) and its counterpart SB 575 (Texas Senate).  The bill amends the relevant sections of Texas law (which happens to be found in the Texas Business and Professions Code):

SECTION 1.  Section 641.051, Business & Commerce Code, is amended by adding Subsection (e) to read as follows:

(e)  This section does not apply to:

(1)  a person engaged in Internet, radio, or television broadcasting who transfers, or causes to be transferred, a recording:

(A)  intended for or in connection with an Internet, radio, or television broadcast; or

(B)  for archival purposes; or

(2)  an Internet service provider that is only providing a conduit for access to the Internet that is used for the transfer of a recording by another person.

So just like that–with the stroke of a pen–The Man 2.0 will cut off webcasting royalties to generations of Texas artists, not to mention future royalties.  And this is coming to a state house near you just any minute if it’s not there already.

One of two things is happening here–either conservative Texas legislators are suddenly possessed with the idea of collectivizing property rights–unlikely–or the Internet lobby is  launching an all out attack on artist rights.

Let’s be clear:  This isn’t a slippery slope, a parade of horribles or any other rhetorical twist.

This is real, this is happening and it is happening right now.

Take Action

You should realize that it is entirely possible that the members of the Texas legislature who are carrying these bills are not 100% clear about how awful they are and just how much damage the legislation will do to Texas artists.  The same may be true of any legislators in your state if you live outside of Texas.  Very often a bill will be introduced in response to a constituent request and if it is not opposed by other constituents will sail right through.  So don’t come down too hard on the legislators.  Their bills may well be unintentionally pernicious.

If you would like to oppose the Texas legislation, you should contact the author in the Texas House, Rep. Tryon D. Lewis through his email comment form here.

You can contact the author in the Texas Senate, Sen. Robert Duncan through his email comment form here.

You should also contact your state legislators to find out if any similar legislation is being introduced in your state.

See our “Take Action” guide if you have any questions.

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