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Posts Tagged ‘Transparency in Music Licensing and Ownership Act’

Congressional Database Obsession: The Transparency in Music Licensing and Ownership Act is Quietly Adding Cosponsors

January 29, 2018 1 comment

MTP readers will recall the many, many attempts at producing a real-time global rights database (and expensive failures).  When Rep. Sensenbrenner introduced the Transparency in Music Licensing and Ownership Act last year, we roundly criticized the bill as an 11th Century solution to a 21st Century problem, the Domesday Book meets a unicorn.  But the bill was roundly cheered by the MIC Coalition, which includes the National Association of Broadcasters.

Not only that, but by imposing a registration formality on all the songwriters of the world, it’s entirely a capitulation to Professor Pamela Samuelson’s ineffectual Copyright Principles Project, the wildest dreams of Lawrence Lessig and probably the clawing of the latest debacle of the anti-copyright crowd, the Restatement of Copyright.  Not to mention a violation of international law (Berne Convention and TRIPS).

With all the talk about the controversial Music Modernization Act, one would have thought that a pre-condition of introducing the bill is that the Transparency in Music Licensing and Ownership Act would have been withdrawn.

To the contrary, Rep. Sensenbrenner has been quietly adding co-sponsors to the Transparency in Music Licensing and Ownership Act and is now up to 15, although the acceleration may have tapered off.

Why?  One reason is that at the heart of the Music Modernization Act is the very type of arguably unlawful registration formality from the Transparency in Music Licensing and Ownership Act–the register or lose it type–that no doubt makes Lessig start to drool, metaphorically speaking, of course.  And should also bring cheer to the MIC Coalition.

No one is asking when the Transparency in Music Licensing and Ownership Act will be dropped, but in a way they don’t have to.  Supporters of the bill (like the MIC Coalition) get a lot of what they want in the Music Modernization Act–a Lessig-style registration requirement that is essentially an orphan works bill in disguise.  Maybe that’s why they’re supporting the MMA alongside the orphan works holdouts from 2006, the last time an “omnibus” bill failed (that started out as “SIRA” for “Section 115 Reform Act.”

That bus was not magic, either.

Does the Music Modernization Act Foreshadow the Decline of Performance Rights Socities in the US?

January 23, 2018 Comments off

It seems like every time I read the controversial Music Modernization Act (“MMA”) I run across a loose end or unintended consequence–and here’s another one.  Many of us–myself included–argued for years that PROs like ASCAP, BMI, GMR and SESAC should be allowed to license both the performance right and the mechanical reproduction right for streaming uses.  (Recall that the consent decrees prevent this efficiency in licensing for ASCAP and BMI.)

Mechanical rates could continue to be set in the normal course of the absurdly cumbersome Copyright Royalty Judges and the performance rates could continue to be set in the normal course of the absurdly cumbersome rate courts for ASCAP and BMI–but the one-stop licenses could be issued by PROs for their respective writers’ contributory shares of their songs.  But–these appeals to efficiency were made in the absence of a mechanical collecting society in the U.S.  The MMA changes those arguments.

Let’s be honest–there are plenty of tech folk who despise the PROs and there’s at least one Congressman–James Sensenbrenner–who sure looks like he does, too.  Would any of them shed a tear if the PROs just went away?  Rep. Sensenbrenner’s Transparency in Music Licensing and Ownership Act which we heavily criticized certainly appeared to have the destruction of PROs in mind.

Enter the MMA and its proposal to establish a quango-like mechanical collective.  Without accepting or rejecting the proposed bill (which we are still digesting), I think it’s worth pointing out that there’s an interesting twist here when you consider the longevity of the PROs.

Recall that the Antitrust Division of the Department of Justice invited a legislative solution to continued consent degree regulation of ASCAP and BMI in its 2016 statement closing the Division’s review of the consent decrees:

[T]he Division recognizes the incongruity in the oversight over the licensing of performance rights and other copyrights in compositions and sound recordings and believes that the protections provided by the consent decrees could be addressed through a legislative solution that brings performance rights licensing under a similar regulatory umbrella as other rights. The Division encourages the development of a comprehensive legislative solution that ensures a competitive marketplace and obviates the need for continued Division oversight of the PROs.

In a post MMA world, why would the argument for one stop licensing for at least streaming not simply be flipped from the PROs administering streaming mechanical licenses to the MMA mechanical collective administering both streaming mechanical licenses and the performance rights in a new form of one-stop blanket license?  Why have the PROs at all if you have a massive government mandated collective that enjoys an antitrust exemption for compulsory licenses?  And if you have a government mandated one-stop shop in a future version of the MMA, would such a ruling trump any private contracts to the contrary between songwriters and their PRO?

Giving PROs a legislated push toward oblivion would certainly check a box at the Digital Media Association (if not cross one off the bucket list) as well as the MIC Coalition–and possibly be very satisfactory to Mr. Sensenbrenner.  Not to mention that it would arguably follow the Antitrust Division’s guidance.

Personally, I think that outcome would be terrible for songwriters, but there are no assurances in the MMA that it can’t happen that I have found so far.  And that may be the left cross to follow if the Transparency in Music Licensing and Ownership Act is not withdrawn–and by the way there are no guarantees of the withdrawal of that loose end either, at least not so far.

Help @RepJerryNadler Beat the Cartels because #irespectmusic

September 26, 2017 Comments off

Emmanuel Legrand posted a very informative piece in his newsletter about a speech by Rep. Jerry Nadler at the so-called “Music Biz Association” Music Biz Entertainment & Technology Law Conference Series in New York.

(Some of you may remember the “Music Biz Association” as NARM which is what it was called before it was taken over by representatives from the leading royalty deadbeats of our day: Facebook, Amazon, Spotify, YouTube and Pandora. In fact, the chair of the “Music Biz Association” is from Facebook, the industry leader in screwing artists out of royalties and their name and likeness rights, not to mention fake news.  YouTube parent Google and Pandora are both members of the MIC Coalition cartel that is an effort by Corporate America dedicated to screwing the world’s songwriters and artists through massive lobbying power.  Also known as The Anti-Music Biz Association.  Amazon and Spotify are also represented through their trade association the Digital Media Association which has opposed everything anyone has tried to do to better the lives of creators.)

Mr. Legrand tells us that Rep. Nadler noted the long list of critical creative industries legislation languishing in the Congress:  These include the Register of Copyrights Selection and Accountability Act (HR 1695) which is currently languishing in the Senate after having passed the House with a rip-roaring 378-48 after being opposed by proxies of Music Biz board members.  Nadler’s own Fair Play Fair Pay Act of 2017 (HR 1836) would close the terrestrial performance right loophole for sound recordings; [the CLASSICS Act (HR 3301) to get artists paid statutory performance royalties for pre-1972 recordings that The Turtles have had to sue over at great expense;] “…the Songwriters’ Equity Act, that would simplify the way music is licensed by performance rights organisations; [the Allocation for Producers (AMP Act HR 881); and] the PROMOTE Act of 2017 (HR 1914), which would allow performing artists to opt out of having their music played on the radio if the performing artist is not being paid an agreed-upon performance royalty.”

Let’s be clear about one thing–the real tragedy that would make us all look very stupid would be if after getting the Register of Copyrights bill passed overwhelmingly in the House–after dirty dealing by Representative from Google–the bill simply dies in the Senate because no one will bring it up for a vote or because Senator Wyden (D-Google Data Center) has a hold on it.  The one bill that actually got a vote and was passed by the Judiciary Committee and by the House–fails in the Senate?  

That result would no doubt be thrilling to the Music Biz Association board members from YouTube, Facebook, Amazon and Spotify if for no other reason that the snarky Librarian of Congress is very likely itching to appoint her own Register and give the gesture to the Congress and their little dog, too.  (This would be the Libraian of Congress who is permitting (and I think encouraging) mass NOIs to screw songwriters for the benefit of Amazon, Pandora, Spotify and Google.)

If that Register appointment bill doesn’t get a vote pretty soon, she just might do it, particularly if she got top cover from the MIC Coalition and the Internet Association (assuming the IA can take time away from their important work of protecting Backpage.com and saving the Internet).

And this is not to mention the latest atrocity from the MIC Coalition, the radioactive “Transparency in Music Licensing and Ownership Act” (HR 3350).  That bill destroys statutory damages and attorneys fees awards in copyright infringement cases against special classes of members of the MIC Coalition cartel that appears to be attempting to fix songwriter and artist royalties–at zero by the look of it.  (And those Music Biz Association meetings should recite the antitrust prayer with special fervor given all of the interlocking boards involved and the dominant posistions of Facebook, Google, Spotify, Pandora and of course Amazon.  Someone might come looking.)  For a good summary of what’s wrong with HR 3350 (or as we call it, The Shiv Act) read this open letter by the Content Creators Coalition signed by artist members Melvin Gibbs, John McCrea, Tommy Manzi, Rosanne Cash, Tift Merritt and Matthew Montfort.

Since we’re not mentioning HR 3350, let’s also not mention Music Biz Association board members Amazon, Spotify, Pandora and Google’s millions upon millions of “address unknown” NOIs served on the Copyright Office pursuant to impenetrable filings that screw songwriters to the wall in no uncertain terms.  But wait…Spotify says there’s no such thing as a mechanical royalty….I’m so confused.

Mr. Legrand reports that Rep. Nadler is disheartened by the lack of effort behind these bills:

Nadler said that so far none of these bills have gathered any traction, aside from the Register of Copyrights Selection and Accountability Act, which was voted 27-1 by the Committee before the summer, to be then sent to the Senate where it is stalling.

Nadler added that Goodlatte will stay in his position for less than two more years so something has to happen this year, if anything.

“Time is the enemy,” said Nadler. “Someone has to be pushing and a lot of this stuff is not going through the Judiciary.” However, Nadler wondered whether Goodlatte would go for a comprehensive Copyright Bill that would become his legacy or opt for a selective number of individual bills.

Nadler, as one of the co-sponsors of the bill, would like to see [Fair Play Fair Pay] go through because, as he said, the USA is the only country alongside Iran and North Korea not to grant performance rights on sound recordings for music played on terrestrial radio. To explain he situation owners of sound recordings are facing at the moment, Nadler used the following image: “In a car you can hit three buttons. If you hit FM, music performers do not get royalties. If you then hit satellite radio, performers get a royalty, and if you then hit streaming, performers get a different royalty. It does not make sense.”

Rep. Nadler probably thought he was speaking to an organization that supported his efforts, and indeed in fairness many of the Music Biz Association members do.

However, at least four of the members of both the organization and its board of directors work for companies that have been actively trying to crush songwriters and artists for many, many years.  Pandora, for example, lead the charge against the retirees and the deceased on opposing paying Pandora’s fair share on pre-1972 royalties for sound recordings.  $300 million or so later, it is up to the Congress to fix this loophole.

It’s imporant to note that it takes two to tango–one reason this long list of bills hasn’t moved is because of efforts to stop each of them by companies on the Music Biz Association’s board or the lobbying groups these companies fund to avoid any breadcrumbs leading back to their house.  The MIC Coalition, for example, includes the National Association of Broadcasters who have used their lobbying power to crush artists for decades.

MIC Coaltion 8-15

And it’s not that these companies just oppose legislation to treat creators fairly, it’s that they have in large part formed the MIC Coalition cartel for that exact purpose.  These companies spend millions of dollars lobbying against our interests.  So while we cherish Rep. Nadler’s unflagging support for songwriters and artists (as evidenced by the #IRespectMusic campaign and Blake Morgan’s extraordinary advocacy, for example), it must be said that the Music Biz Association is probably the wrong place to open the kimono because you never know which royalty deadbeat is taking notes in the audience and yukking it up under their breath.

Want to do something about it?  Call your Member of Congress at (202) 224-3121 (or find them on this list for a direct line in the House) AND call both your Senators at (202) 224-3121 (or find them on this list for a direct line in the Senate).  You can also write to your Member by looking them up on the House of Representatives website or to your Senators by looking them up on the Senate website.  (Remember–you have one Member of Congress and two Senators.)

Let’s help our friends like Rep. Nadler defeat the cartels.  Make those phone calls.

IRMAIV Large

 

@KRSfow: Future of What Podcast on the Transparency in Music Licensing and Ownership Act

September 16, 2017 Comments off

Episode #94: Recently, a bill was introduced by Republican congressman Jim Sensenbrenner which calls for the creation of a comprehensive database of compositions and recordings. The “Transparency in Music Licensing and Ownership Act” claims to make things easier for coffee shops, bars and restaurants who want to license music to play in their establishments. To many in the music industry, the bill seems like a wolf in sheep’s clothing with the potential cause big problems. On this episode we dig deep into the bill with Future of Music Coalition’s Kevin Erickson and attorney Chris Castle.

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The Government’s Music Database: What Would Monk Do?

September 7, 2017 Comments off

There is a fundamental difference between people with experience in the vagaries of copyright chain of title research and those who want their data served up in nice neat–very, very neat–packages.  So neat that you could eat your lunch off of those packages–one pea at a time arranged in a straight line, preferably.

Those who do not step on cracks have an especially difficult time understanding that song data is a dynamic process best left to the people who…well, who don’t mind the cracks.

Explaining this to our friends in the tech community is kind of like explaining the interpretation of a blood test to…well, to Monk.

@RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid

August 12, 2017 Comments off

On the surface, at least, the “Transparency in Music Licensing Ownership Act,” introduced in the House of Representatives on July 20 by Congressman Jim Sensenbrenner (R-WI), seems like a copyright bill that could help untangle the online music business….but the devil is in the details.

via @RobertBLevine_: Federal ‘Transparency’ Bill Endangers Songwriters’ Leverage for Getting Paid — Artist Rights Watch

@philouza: New Bill Calling For Transparency In Music Is Surprisingly Opaque — Artist Rights Watch

August 2, 2017 Comments off

NPR’s Andrew Flanagan on the controversial Transparency in Music Licensing and Ownership Act (TIMLAOA).

via @philouza: New Bill Calling For Transparency In Music Is Surprisingly Opaque — Artist Rights Watch

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