Seabrook’s Stories About Money

Originally posted on MUSIC • TECHNOLOGY • POLICY:


I don’t believe in fairy tales, sermons, or stories about money, baby sister, but thanks for the cigarette.

From True Grit written by Joel Cohen and Ethan Cohen

seabrook 1

The author John Seabrook has written another extraordinary piece on Spotify for the New Yorker that one could charitably describe as struggling with truthiness.  But to paraphrase Mrs. Longworth, if you’re not feeling charitable, come sit next to me.

Of course this is not the first time Mr. Seabrook and the New Yorker have come to the rescue of the Darling of Goldman Sachs.  Who can forget John Seabrook’s puff piece on Daniel Ek that appeared in the New Yorker after Spotify’s Taylor Swift debacle.  That was an article that IPO underwriting syndicates like a whole lot more than…let’s just say reality.

That Daniel Ek piece had some howlers that belied what is increasingly appearing to be Mr. Seabrook’s self-directed…

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Mike Doughty Responds to John Seabrook at The New Yorker about Adele Doing Windows…

Musician Mike Doughty takes on the New Yorker’s anti-artist editorial “Who Is Really Paying for Adele?”. Seabrook argues that somehow Adele is cheating fans by not giving away her new, historical, record breaking album.

Seabrook’s piece reads like it was written by the Spotify PR dept with lines like this “Could it be possible that the record business, pursuing a strategy of inflating sales by keeping an album off Spotify, Apple Music, or Deezer, is choosing short-term profits over long-term growth?” No. It’s actually long term growth that is the goal of windowing. Variable pricing and pricing elasticity works for most business and has historically worked well for the record industry as well (see below).

Doughty’s response from Facebook can be seen here. You can share it directly via this link:



What is of particular interest is that it is people like Seabrook who chastise artists and the music industry even in the the light of Rdio going defunct and owing $220m to creditors and labels! Somehow the bad bubble math of Silicon Valley is what artists should be striving for? No. Enough.


So what does this mean for the non-superstar artists? Very simply, windowing works. Windowing works better when there is a reasonable amount of consistency. Our friends in the film business have been highly effective at windowing for decades and there’s no reason why it can’t work similarly well for the record business.

Every new release should have the option to determine the release windows when the record is being set up. For example the default could be 0,30,60,90 day option for transactional sales, followed by 0,30,60,90 day option for Subscription Streaming prior to being available for Free Streaming.

Windowing is not new for the record business. The industry has never had pricing ubiquity across all releases, genres and catalogs. There has always been strategic and flexible pricing strategies to differentiate developing artists, hits, mid-line catalog, and deep catalog. An industry wide initiative to re-allign time proven price elasticity is the key to growing the business and developing a broad based sustainable ecosystem for more artists.

  • Windowing allows for Free Streaming to exist as a strategic price point.
  • Windowing allows for Subscription Streaming to exist as a strategic price point.
  • Windowing allows for Transactional Downloads to exist as a strategic price point.
  • Windowing allows for artists and rights holders to determine the best and most mutually beneficial way to engage with their fans.

Windowing is the key (as it always has been) in rebuilding a sustainable and robust professional middle class that will inevitably lead to more artists ascending to the ranks of stars. Some will become superstars and legends capable of creating the types of sales and revenues currently achieved by Adele, Taylor Swift and Beyonce’. To get there however we need to abandon Stockholm Syndrome and embrace windowing that works for everyone.



Did Cox Communications Just Do the Dirty to Shareholders?

Last week Cox Communications lost its DMCA “safe harbor” defense against songwriters in BMG Rights Management’s lawsuit against Cox for failing to maintain a repeat infringer policy in Cox’s ISP business.  It has always seemed pretty obvious that an ISP running a “whack a mole” business requiring songwriters and artists to send repeated DMCA notices shouldn’t get the protection of the safe harbor if the law was working the way it should.  Finally a U.S. federal judge things so, too.

As we are often told by Big Tech, the DMCA safe harbors were a negotiated balance, a “grand bargain.”  What usually comes next is some spin that would have you believe that the “notice and takedown” operates as a kind of “tag you’re it” functionality that allows certain anointed ones to get away with not doing the actual stealing, but providing the means for the stealing to occur.  You know, because the Internet.

But now it looks like at least Cox Communications executives might have a real problem on their hands depending on how the facts turn out in the BMG case.  Why?

As Professor Tim Wu taught us before he started working for the New York Attorney General:

If the Internet were not a bookstore, or tubes, but rather a red-light district, YouTube would best be imagined as the hotel, and Napster, well, the pimp. YouTube, like a hotel, provides space for people to do things, legal or not. It’s not doing anything illegal itself, but its visitors may be. But Napster, everyone more or less now admits, was cast as the pimp: It was mainly a means of getting illegal stuff.

To extend Professor Wu’s pimp allegory, in Cox’s case it is the ISP who is providing the means of getting illegal stuff, and Cox wants to hide behind the “grand bargain” of the DMCA in order to look less like that metaphorical pimp.  In a way, it’s actually more complex than that.  According to Cox’s insurance carrier that is suing Cox to get out of any coverage, Cox’s executives intentionally failed to implement a repeat infringer policy.  The burden of implementing that policy is what ISPs take on in return for the benefit of the safe harbor.  The “grand bargain,” remember?

This notwithstanding the fact that BMG gave Cox many opportunities to get out of the middle.  Although Cox received far fewer DMCA notices than Google has, by failing to adopt a meaningful repeat infringer policy, Professor Wu might say that Cox has pimped its way to do the opposite of what the Congress intended with the DMCA’s repeat infringer requirement.  Or that seems to be clear to Cox’s insurance carrier who ought to know.

This is the real significance of the ruling and why notice and stay down is both vital to artists and entirely consistent with the goals of Congress when drafting the DMCA.

Continuing the criminal motif, Mr. Wu’s new boss, New York Attorney General Eric T. Schneiderman, had this to say in an op-ed that could easily have been written about Cox and certainly could at least be applied to ISPs:

Regulators should not be deterred and, as a practical matter, they can’t and won’t be — we are now living in an online world, one that offers great promise but is also becoming one of the primary crime scenes of the 21st century. Major service providers cannot be allowed to treat it as a digital Wild West. The only question is how long it will take for these cybercowboys to realize that working with the sheriffs is both good business and the right thing to do.

There is, however, a new face at the table now that Cox has both lost the protection of the safe harbor and may well be denied coverage by their insurance underwriter at Lloyds of London.  That face is Cox’s stockholders.

Lloyds is already trying to get out of paying Cox’s legal bill which appears to be north of $1 million already with trial starting next week.  Why is Lloyds denying coverage?  Because Lloyds quite correctly says it won’t insure Cox for its intentional refusal to comply with the DMCA for largely the same reason that the DMCA has a repeat infringer requirement in the first place.  If you try to do it right and screw up, you can get insurance or you might be entitled to the safe harbor (and you can probably more easily get insurance if you promise to comply with the safe harbor).  You cannot insure your way out of doing something that is purposely bad behavior.

The Hollywood Reporter tell us:

According to Lloyds’ complaint filed in New York Supreme Court, Cox has been told that its insurance policy doesn’t cover the BMG claim because it “arose out of intentional and not negligent acts” and “did not arise out of acts in rendering internet services but rather Cox’s business policy and practice of ignoring and failing to forward infringement notices and refusing to terminate or block infringing customers’ accounts.”

….It’s one thing for an ISP to put up a brave front — and maybe even win some goodwill among customers by fighting those like Rightscorp — but to do so with neither safe harbor nor possibly insurance raises the risk level quite substantially. Time will tell if this is a game-changer on the piracy front.

May be–but what this means is that the individual conduct of Cox Communications executives has now put the company’s shareholders on the hook for what could be massive copyright infringement damages for failing to implement a practice that’s not much more complicated than what you would expect from a university network.

Remember when Google paid a fine of $500,000,000 of the stockholders’ money to keep its senior executive team (many of whom are insider board members) from being criminally prosecuted for violating the Controlled Substances Act?  Google stockholders sued Google’s board members for breach of fiduciary duty and a bunch of other nasty things.

The argument goes like this:  We hired you executives to comply with the law.  If you choose to operate outside of the law that is your business, but you can’t use our money to pay for your bad behavior.  Cox Communications is the 17th largest private company in America, so we would have to assume that there are some institutional investors who hold shares of Cox and who are not too pleased about the pimping part.


Cox Communications DMCA Woes Continue as Lloyds of London Cuts the Cord

The massive Internet Service Provider and cable operator Cox Communications currently being sued by BMG Rights Management and Round Hill has been dealt two body blows in a week.

First, Cox lost its DMCA “safe harbor” protection and now its insurance company (the venerable Lloyds of London) is refusing to cover any damages from claims for intentional copyright infringement.  Those two go together if you think like Lloyds of London because the safe harbor isn’t supposed to protect “intermediaries” from their intentionally bad behavior and you’re not going to get insured against it either.  Given how bad this is for similarly situated companies like Google (who also sells advertising), Cox should have no want of litigation financing, but it sends a chill up the spine, even so.  If Cox loses, that could push the company into bankruptcy where intentional infringement and crimes are not washed away.

Cox is getting sued by BMG Rights Management and Round Hill over the infringement of songs, a great example of publishers standing up for their songwriters and putting their money where it counts.  The case is going to trial next week in Virginia, and it’s starting to look like songwriters are finally going to get justice from ISPs who don’t understand the purpose of the DMCA safe harbors, eloquently summed up by Beggars Group Chairman Martin Mills at Canadian Music Week last year:

They were introduced, with some foresight, by the legislators in the USA framing the DMCA, to provide a notice and take down procedure for unlicensed content. But the legislation has been distorted into a protective wall behind which cyberlockers and torrent sites, and companies such as YouTube and Grooveshark, operate [or used to for Grooveshark].

The original intent was to protect reasonable people acting reasonably from falling foul of the law, to enable the digital economy to grow without “gotcha” law suits against ISPs who had no idea that their networks were being used for infringement. They were not intended to provide fortress walls behind which companies could build billion dollar businesses on content that had not been cleared. They were never intended to become a de facto “license”.

Mills captures the exact problem with the way that “intermediaries” like Cox profit themselves off the backs of creators, and especially songwriters.  Remember, Cox failed to join the Copyright Alert System, the user education and graduated response agreement signed by AT&T, Cablevision, Comcast, Time Warner and Verizon.  Also remember that songwriters and music publishers are also not covered by the CAS.

According to Ars Technica, the judge in the case apparently didn’t think much of Cox’s repeated failure over a couple years to properly adopt a repeat infringer policy.  We don’t have a full opinion yet from the judge in the case, but it’s starting to look like the whack a mole problem we have all experienced with Google, YouTube and others in the piracy chain may actually turn out to be evidence of a failed repeat infringer policy that will trump the safe harbor.  Once that opinion comes down, we will report back.

Google BMG

Now wouldn’t that be interesting.  That’s starting to sound like notice and stay down.

In other words, the availability of the safe harbor may turn on an objective truth.  If you get over x DMCA notices, you’re just not doing enough to be entitled to the special protection of the safe harbor law.

As Martin Mills also said at CMW:

Copyright is meant to allow you to control your own work. That is totally undermined when another law says that people in effect can ignore it with impunity. Would we consider a safe harbour law allowing small restaurants to ignore food hygiene laws ? Or a safe harbour for personal data being inappropriately used ? Of course not.

Cox is out of the safe harbor business (although somehow they’ll appeal that ruling–in a hurry because trial starts December 2 according to Ars).

On top of that, Digital Music News is reporting that Lloyds of London  (Cox’s insurance company) sued Cox in New York for a ruling that they don’t have to insure Cox against claims for intentional copyright infringement.

It’s the “intentional” part that will get Lloyds out of insuring Cox’s bad behavior.  Just like you can’t get insurance if you have a fatal wreck while driving drunk on alcohol, Cox can’t get insurance for destroying songwriters’ lives while drunk on power.  And they can’t get out of the liability by declaring bankruptcy for largely the same reasons.

There’s a very long way to go before this case is over, but Lloyds isn’t waiting around to find out.  They want out right now, which may–may–mean that they know something we don’t.

All in all, one of the best litigation weeks for songwriters in a very long time, and thanks to BMG and Round Hill (who was dismissed from the case on a technicality) for sticking it out.  But wait…there’s more.

Needless to say that Google is going to be very interested in this case.  Naturally, Google sent in its shills back in October to file friend of the court briefs intended to influence the judge–the Electronic Frontier Foundation and Public Knowledge.  According to Ars Technica, Judge O’Grady was having none of it, and refused to allow either the EFF or Public Knowledge to file their briefs (which is evidently at the discretion of the court).

“It adds absolutely nothing helpful at all,” O’Grady said of the EFF brief, according to Techdirt, based on a transcript of the October hearing. “It is a combination of describing the horrors that one endures from losing the Internet for any length of time. Frankly, it sounded like my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework. And it’s completely hysterical.”


One other point to brighten up your Thanksgiving.  The same judge will be hearing the U.S. criminal case against Google Adsense customer Kim Dotcom/Megaupload once Dotcom is extradited from New Zealand.  Dotcom was no doubt thinking about making some of the same “head in the sand” defenses that Cox tried on Judge Liam O’Grady, so the betting is that Mr. KDC may be taking a long look at the hospitality of the federal government right about now.

That can have a tendency to focus the mind and loosen the tongue.

Please pass the turkey.

Adele Outclasses Her Critics

Originally posted on MUSIC • TECHNOLOGY • POLICY:

Notwithstanding the predictably boring and misogynist spew about Adele from Bob “Trigger Warning” Lefsetz, Adele’s “25” album sends an unmistakable message.  Her recording reminds us of the one idea that streaming boosters and other Spotify apologists want you to forget. The CD configuration still makes up an average of 50% of sales, particularly for superstar releases, and in Adele’s case, CDs and digital downloads make up 100% of the album product configuration for “25,” at least for the time being.

But not the single–“Hello” has been available on iTunes, Spotify and other streaming platforms since October 23–you know, the commercial single street date.  That’s right–all this press that has been ginned up about Adele “snubbing” streaming is all about “25”–that’s the album.  Somehow few of these stories (and I say “few” but I think if you read all of them you would find that none of them) tell you…

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What’s Good for Adele, Sucks For Everyone Else… And Here’s Why…

We celebrate in all the success that Adele deserves. Like Taylor Swift and Beyonce’ before her the ladies are leading the industry with common sense. We applaud all three for windowing their new albums off of Spotify and other FREE streaming services. We also have some concerns about the implications for other artists who currently can’t do the same.

It would appear the new way to sell music and make money is the same as the old way to sell records and make money. Make a great record, don’t give it away for free, and partner with a major label.

Of course there are those who might say that the success of these female artists is due to the fact that they also have a female audiences. One could argue that there are far fewer women pirates and that alone is a key factor in driving these types of phenomenal sales figures. Perhaps women are more mature consumers than their but scratching, booger eating male counter parts however these types of pop music sales generally transcend demographic limitations.

But what works for Adele, Taylor Swift and Beyonce may not work for other artists and here’s why – it’s called income redistribution. The top 1% of artists are capturing 77% of recorded music revenues. That means everyone else, the remaining 99% of artists are dividing up the remaining 23% of recording revenues among them. In short that leaves an ecosystem with superstars on one end of the spectrum and hobbyists on the other and not much of a middle class in-between.

The Top 1% of Artists Earn 77% of Recorded Music Income, Study Finds… | Digital Music News

In other words, the exact opposite of the Long Tail, a theory that seemed exciting at the time but has now been thoroughly disproven (MIDiA’s report is titled The Death of the Long Tail: The Superstar Music Economy).

Perhaps the larger irony here is that those who sought to destroy the major labels through piracy have only empowered them. The major labels now not only capture the larger share of revenue from recorded music but also as a result they also capture the most favorable deal terms (including equity shares) from the digital service providers (DSP). The net result being that indie and DIY artists who once accounted for a robust middle class of musicians have been pushed down into the realm of hobbyists. Of those few, rare indie/DIY outliners that manage to flourish none of them will get equity stakes or the same terms that the major labels do from the DSP’s.

There is no internet empowerment for professional musicians. There is no democratization of music in creating a new and robust ecosystem of middle class professional musicians. Internet piracy and the new “digital music economy” have only created equality when everyone is equally poor. That’s a pretty lame revolution.

Revenge Of The Record Labels: How The Majors Renewed Their Grip On Music | Forbes

FORBES estimates that the three labels have amassed positions in digital music startups valued at almost $3 billion–or around 20% of the $15 billion or so the labels are collectively worth. The percentage will shoot even higher if and when Spotify goes public. And some bets have already paid off: Universal Music Group took an early position in Beats by Dr. Dre and owned 13% when Apple bought the company for $3 billion last year, resulting in a $404 million score.


So what does this mean for the non-superstar artists? Very simply, windowing works. Windowing works better when there is a reasonable amount of consistency. Our friends in the film business have been highly effective at windowing for decades and there’s no reason why it can’t work similarly well for the record business.

Every new release should have the option to determine the release windows when the record is being set up. For example the default could be 0,30,60,90 day option for transactional sales, followed by 0,30,60,90 day option for Subscription Streaming prior to being available for Free Streaming.

Windowing is not new for the record business. The industry has never had pricing ubiquity across all releases, genres and catalogs. There has always been strategic and flexible pricing strategies to differentiate developing artists, hits, mid-line catalog, and deep catalog. An industry wide initiative to re-allign time proven price elasticity is the key to growing the business and developing a broad based sustainable ecosystem for more artists.

  • Windowing allows for Free Streaming to exist as a strategic price point.
  • Windowing allows for Subscription Streaming to exist as a strategic price point.
  • Windowing allows for Transactional Downloads to exist as a strategic price point.
  • Windowing allows for artists and rights holders to determine the best and most mutually beneficial way to engage with their fans.

Windowing is the key (as it always has been) in rebuilding a sustainable and robust professional middle class that will inevitably lead to more artists ascending to the ranks of stars. Some will become superstars and legends capable of creating the types of sales and revenues currently achieved by Adele, Taylor Swift and Beyonce’. To get there however we need to abandon Stockholm Syndrome and embrace windowing that works for everyone.

This one chart says it all…




David Lowery “Whiteboard” Comments on DOJ 100% PRO Licensing Proposal

November 18, 2015

David C. Kully
Chief, Litigation III Section
Antitrust Division
U.S. Department of Justice
450 5th Street NW, Suite 4000
Washington, DC 20001

Re: Comments on PRO Licensing of Jointly Owned Works

Dear Mr. Kully:

I am a founder and principal songwriter of the bands Cracker and Camper van Beethoven. I appreciate the opportunity to participate in the public comments on modifications to the ASCAP and BMI consent decree regarding jointly owned works.

I have worked in the music business over 30 years. Both my bands are still together. We release records regularly and tour the world. During this time I have been signed as a songwriter to major publishing deals, self-administer and everything in between. I also write The Trichordist blog on artist rights and am in touch with many other songwriters in the U.S. and elsewhere.

In writing this letter it is not my intent to address this issue in dry legal terms or to get “down into the weeds” on the consent decrees. Firstly and foremost I am not an attorney and I am certainly not an expert in antitrust laws. But secondly I think it is important that we discuss the issues surrounding the PRO consent decrees at a macro level and in terms that the public and songwriters will understand. The lawyers that work for companies like Google, Apple, IHeart Media, ASCAP and Warner Music Group should not be the only audience for these discussions. Hence I have adopted an unorthodox narrative to illuminate my thoughts on the matter. I intend no disrespect to your office, I simply believe that songwriters and the public need to clearly understand what is at stake.

My understanding of the question is this:

Should the consent decree be modified so that ASCAP or BMI (that SESAC or the new Kobalt-Google Ventures owned AMRA surely will follow) can license 100% of a song even if their affiliated songwriter only owns say 5% of that song?

My smart aleck answer is an emphatic “yes!” The ensuing chaos of unintended consequences from 100% licensing will reduce any lingering rationale for the consent decrees to a Kafka-esque absurdity. It will make the licensing system less efficient and more complex. It will undermine the PRO system–one of the few organizations that actually work to make licensing more efficient.  It will further favor enormous broadcasting (iHeart Media), webcasting (Pandora) and streaming concerns (YouTube and Spotify) that already have dominant market shares.

It seems to me that 100% licensing will unlawfully take private property rights by overturning private contracts (co-administration agreements) between songwriters. It will inhibit freedom of expression by making songwriters think twice about collaborating with songwriters from a different PRO. It seems to me it will violate the Department of Justice’s own guidelines and antitrust mandate. And finally it will effectively take away the rights of songwriters who are not members of ASCAP or BMI and who never agreed to be subject to consent decrees.

The last seems extraordinarily important (at least to this non-lawyer) as the affected songwriters have not agreed to have their rights limited; admitted to any wrong doing; and received no due process or just compensation for the rights the government would be taking away.

Nor has the legislative branch passed a law that would limit songwriters’ rights to be taken away as the DOJ proposes. At least legislation would have some imprimatur of legitimacy from the consent of the governed. In my high school history classes I seem to remember that an important advance in western civil society was the elimination of “writs of attainder” that were used by kings to punish individuals without trial. Doesn’t the DOJ’s proposed modifications sound similar?

The Department of Justice is attempting to change the rules of the road to something manufactured out of thin air and then pretend those new rules were there all along.  Songwriters must ask why?

So again my smart aleck answer is “Yes, go ahead and add 100% licensing to the already unworkable consent decrees, because surely there is some clever constitutional lawyer out there who will now obliterate these decrees that have gone way beyond their intended purpose—and are bald faced takings without just compensation prohibited by the 5th Amendment.”


But I understand that my answer while satisfying and darkly amusing to my fellow songwriters and me probably is not amusing to those of you that work at the DOJ. I imagine that most of you went to work for the DOJ because you believed in the system and wanted to see our nations laws applied fairly. You did not go to law school to navigate technicalities, conjure up impressive legal “gotchas” or read/write endless petitions by those with the resources to endlessly petition.

You probably didn’t go to the DOJ because you wanted to help multinational corporations or powerful billionaires unjustly become richer and more powerful. You certainly didn’t go to the DOJ because you yourself wanted to get rich in public service. And if you are in the antitrust division you definitely didn’t go there to get elected to public office because very few voters understand what you do. Most songwriters would say, “Antitrust? What’s that? You’re against trust?”

I would guess that your law school classmates who went into lawyering to get rich and accumulate power are working for the white shoe firms. They are busy making the rich and powerful more rich and powerful. And while you are riding the train into DC from some suburb in Maryland or Virginia your more ambitious and less idealistic classmates are probably in a car service riding down the Palisades into Manhattan. But I assume that doesn’t bother you. You are comfortable with your choices. And I sincerely respect you and admire you for making that choice. So the last thing you need is some moderately successful songwriter/performer with a blog criticizing you from what you probably perceive to be the sidelines.

The law and associated jurisprudence is often a beautiful thing. I understand someone wanting to devote a life to it. It often involves creating logical structures that are not unlike real physical structures like bridges and modern glass and steel towers.   Often times the structures are beautiful and awe inspiring. Other times they are confusing, shabby things held together with gaffers tape and baling wire. Or like Gaudi’s Sagrada Familia the legal structures can be both beautiful and shabby at the same time. Is it a cathedral or something that sentient wasps built?

And then once in a blue moon our legal system creates a hideous legal abomination. Like the ASCAP and BMI consent decrees.

“Well we started out wanting to build a beautiful bridge but it somehow turned into a demon infested tower that sprays a fine mist of raw sewage and radioactive smallpox germs across the city. So we just kind of went with it.”

I’m not trying to make light of the serious antitrust concerns that could arise from allowing certain workers like songwriters to collectively bargain. But I say we should step back and look at the monstrosity that has been created since the first consent decree was implemented in 1941. Is it really doing what it was supposed to do? Or is it actually simply allowing the broadcasters, webcasters and streaming services to unfairly take advantage of songwriters?

In addition to being a performer I am also an instructor at the University of Georgia. I teach a music publishing class.   As part of the section on PROs I have to go into some detail on the two consent decrees that govern the operations of the songwriter performing rights societies.   As a result I recently spent an entire class period explaining what IMHO are the absurdities of the consent decrees and proposed changes.   What follows are my whiteboard illustrations with a brief description of my complaints.   I hope that you find this both amusing and illuminating.


 who asked for 100 percent licensing

Who asked for 100% licensing? Certainly not songwriters! Do these multi-billion dollar companies really need the help? Are they really saying something like: “We don’t have enough time/resources to negotiate with all 3 performing rights societies” I don’t understand. No one forced them to go into a business that requires obtaining licenses for songs.  (Or paying royalties–but that’s another story.)

 antitrust backwards

Is the whole antitrust regime backwards? Aren’t the companies on the right side of my whiteboard themselves monopolies or at least dominant? It has been reported that Google and Spotify have some sort of interlocking management/board members. Further Pandora and Spotify rely on Google for ads and revenue. How do they avoid collusion? Why are the antitrust laws still pointed at songwriters?

Songwriter co-administration deals demon infested tower

Back to the practical effects of 100% licensing.  This is the demon-infested tower.   How does 100% licensing work when songwriters have co-administration contracts? And only one songwriter is subject to a consent decree? How about if none of the songwriters are subject to the consent decree? It either voids hundreds of thousands–if not millions-of private contracts or creates licensing chaos. I don’t understand where the DOJ would derive authority to void these private contracts?


 Google Kobalt Amra License Google

Google Ventures recently led a $60 million series C investment in the money losing Kobalt. In turn Kobalt bought the new “global” PRO AMRA. Don’t you think that AMRA will say they are “forced” to adopt 100% licensing for AMRA writers if the DOJ requires it of ASCAP and BMI? Isn’t this the monopolist Google licensing music back to itself on a certain level? And shares of songs it doesn’t control? If you say not true, then please show your work.  Trust me, this will not end well.

Does Consent decree depress price

How can the government set wage and price controls through the rate court to approximate a free market when there hasn’t been a free market for songwriters since 1941?  With my catalogue it appears that the BMI consent decree is pushing the price of the song below market value. This is in effect a subsidy from individual songwriters to well connected companies with dominant market share. How is this not an abuse of the antitrust laws? This sure looks like crony capitalism to me. Surely others must view it the same way. Why is the DOJ sullying its reputation by allowing this to continue year after year? This doesn’t just hurt songwriters, it reduces trust in the federal government.

Is USA Free Market in Songs 

Why? Why are  US songwriters so regulated? Doesn’t the US government have more important things to do?   What if the DOJ and Federal government did less in the markets for licensing songs? What if they completely withdrew and did nothing? Would the economy collapse? Would the sky fall? No. Would companies that want to license music and songwriters come to mutually agreeable terms? Most likely, because that is the way it works in the unregulated parts of the economy like say synchronization licenses. Why wouldn’t it work with collective licensing?

Wouldn’t competition increase as AMRA, ASCAP, BMI, Global Music Rights and SESAC competed for greater market share? Take note, it is the multi-billion dollar corporations that are asking the U.S. government for protection from free markets not songwriters. Songwriters aren’t the ones asking for a handout, they are simply asking for a level playing field.  

Thank you for allowing me to participate in this important discussion.


David Lowery

Call to Action TODAY: The Department of Justice is Assaulting Songwriters Yet Again

When you write a song with another songwriter, do you ask them “Who’s your PRO?”  Never, right?  If the U.S. government has its way, you better start–because the Department of Justice wants to force ASCAP and BMI to license 100% of any song their affiliated songwriters control any part of, like a government-mandated controlled compositions clause.

Yes, you read that right. Example:  You write a song 50/50 with another writer.  One of you is ASCAP the other BMI.  The U.S. government seems to think that the rule always has been–which we all know is utter and complete bullshit–that ASCAP and BMI could both license 100% of that song.  Even though ASCAP and BMI want no part of it and have never done 100% licensing, the U.S. government wants to force them to do it.  How would that work?

It can’t possibly work, never was the deal, and will stand the entire songwriter community on its head.  This will screw up co-writes, parodies, samples, you name it.  It will change everything for the worse.  It will be a disaster. It’s all based on a quirky theory of U.S. real estate law applied to copyright that has never been applied to PROs.

It will also create a huge disincentive for anyone outside the U.S. to co-write with a member of ASCAP or BMI.

We’ve all suffered through the U.S. government’s regulation of songwriters.  The worst example of this is the regulation of songwriters through the ASCAP and BMI rate courts from antitrust consent decrees that are imposed on songwriters by the Department of Justice.  Why?  Wait for it…to promote competition.  But what is really happening is that the Department of Justice is attempting to change the rules of the road to something manufactured out of thin air and then pretending those new rules were there all along.

Instead, the U.S. government and their consent decrees and hugely expensive rate courts have caused many songwriters to exit ASCAP and BMI for SESAC and Global Music Rights.  So why can’t that solve the problem?

Because the U.S. government wants to fix it so that even if you leave ASCAP and BMI, if you write with a songwriter who is a member, then the government will force ASCAP and BMI to license 100% of your song.  That’s right–even if you are at a PRO that isn’t subject to government regulation like SESAC or Global Music Rights, then the long hand of the Department of Justice can still take your rights by regulating your co-writer.  Don’t we still have a Constitution in this country?

That’s interesting because Google, Pandora and the National Association of Broadcasters formed the MIC Coalition along with the Computer and Communications Industry Association, the Consumer Electronics Association, the Digital Media Association as well as hotel owners, retailers and of course Clear Channel (the absurdly rebranded iHeart).  Purpose?  To stop artists getting paid for radio play.

But the first official act of the MIC Coalition was to ask a revolving door lawyer in the Department of Justice who previously represented Google to investigate SESAC!



That’s right–companies with trillions of dollars of market capitalization have to have their cronies in the government protect them from songwriters and put SESAC under a consent decree!


Don’t forget that songwriters with Global Music Rights are attempting to withdraw from YouTube on a fractional share basis to renegotiate their YouTube deal or just leave YouTube altogether.  Those songwriters will also be affected by this new rule by the U.S. government.  If these songwriters co-write with an ASCAP or BMI writer, then the U.S. government will force ASCAP or BMI (or both if its a three-way split) to license the co-write and collect the royalties.

It should not be lost on you that Google is in a battle with songwriters over YouTube and that Google dominates the Obama Administration which explains why there’s never been an antitrust prosecution of Google.

But Google isn’t the only one.  Apple is doing it, too.  As SONGS CEO Mark Pincus said in a Billboard op-ed :

[I]n a break from industry convention, [Apple Music’s] offer called for 100 percent ­licensing. This means Apple will accept licenses from a publisher for an entire song, even if the publisher only controls a fraction of it.  Though it never has been the custom in music publishing, by copyright law publishers are allowed to issue a 100 percent license and account to the other rights holders owning shares of the work. That’s right: A competitor can license your shares to Apple whether you like it or not. Now, other DSPs are asking for 100 percent licensing as well. What will happen if DSPs accept 100 percent licenses from their largest licensees (who have shares of more songs)? More control to the bigger companies; less control to everyone else.

That’s right–by protecting its cronies in Big Tech, the government is actually destroying competition, not promoting competition.  The opposite of what the antitrust laws are supposed to do.

Fortunately, you can make your voices heard on this one.  The Department of Justice is asking for public comments on a series of trick questions they have posted on their website which you can read here.  David is going to be writing a comment which we will post on The Trichordist later today.


Write your own comment and tell the DOJ what you think about this latest change in the rules.  Here’s the notice from the DOJ website:

All comments should be submitted by electronic mail to  by November 20, 2015, and will be posted in their entirety for public review at Information that parties wish to keep confidential should not be included in their comments.

We have to stop this latest end run around our rights.

THE UK FEATURED ARTIST COALITION IS DEAD: Endorses Ex-Record Exec from Spotify Funded MMF to Represent Performers at PPL

Screen Shot 2015-11-16 at 11.12.11 AM

The once mighty advocate for artists’ rights in the UK is no more.  Yes, there is a zombie organization that still bears the name, but it seems a lifeless and corrupted shell of an organization, routinely parroting every MMF press releases.  But it is their latest email that leaves us with no other conclusion than they have been taken over by the Spotify and Google funded “Music Manager’s Forum”.   They have now officially endorsed Jon Webster CEO of the  MMF to represent “performers” on the PPL. (The PPL collects performers royalties on behalf of artists.)  Jon Webster is a former record executive and as far as I know his only  experience as a performer is “acting” like he represents performers and not MMF or the companies that fund it.  It should be noted that the FAC does not endorse former FAC head Crispin Hunt.  Hunt along with a group of other performers stepped down from the FAC last year reportedly because MMF wanted to control the messaging and he and others objected to the Spotify and Google funding.   Now in what appears to be a vindictive putsch that would make Stalin proud they are trying to push Crispin Hunt off the board of the PPL.

Fuck these guys. Let’s send Webster not Hunt to the Goolag.  If you are eligible to vote, vote! Now!  You only have 2 days left!  You of course are free to make up your own mind, but we believe that UK artists are better represented by a vote for Crispin Hunt and Mark Kelly.

If you are an eligible PPL voter here is the form.

Confirmed: Google/Spotify Funded MMF is Trying to Replace Performers On PPL Board with Former Record Exec

Earlier this week we reported that it appeared that  UK Music Managers Forum was trying to replace Crispin Hunt and Mark Kelly as the performer representatives on the board of  UK PPL with former record executive and MMF CEO Jon Webster.  We now have the confirmation email:

From: Fiona McGugan <>
Date: November 13, 2015 at 4:40:13 PM EST
Subject: ICYMI 62

Dear US Managers,

Jon is in Japan this week, so perhaps apt for me to let you know that he has confirmed that he will be stepping down as CEO of the MMF in January. But he will not be resting as he is running for a seat on the PPL board and concentrating on Performers’ Rights as they come under threat with the developments in digital licensing: He will continue working with us on this and other issues.

A look at superfans in the streaming environment: Artist ownership of data will be an issue in the future….

Have a great weekend,

Yes indeed, performer’s rights are under threat.  As usual they are under threat by managers.  And under threat in exactly the same way they always are. While pretending to look out for artists the managers are secretly taking payments under the table from the companies (Spotify/YouTube) that are sending tiny royalty checks to performers.   Its like the 1970s music manager business just with less cocaine. (Ed Note-Probably,you can never really be sure with managers.)

But at least this time you can do something about it.  You get to vote. That’s right if you are a UK performer and you have received a check from PPL in the last couple of years you can vote.  And you should vote for actual performers,  like say Crispin Hunt and Mark Kelly.  Not MMF CEO and former major label record executive Jon Webster.  Here are the instructions from our UK friends:

Online voting opened yesterday as planned, and will run until 5pm on 20 November. Electoral Reform Services (ERS) has sent details of the online voting process to all of this year’s Eligible Performers (i.e. those performers registered with PPL who have received a payment from PPL in 2013 and/or 2014). Most of these communications went out by email, but some went by post (where the performer has not currently provided PPL with a valid email address).

Those communications from ERS communications provide the performer with a link to the secure online voting website, and set out the security information they will need in order to be able to log in and cast their votes, so all performers need to do is follow the instructions in those communications. As there are two positions being elected, each Eligible Performer can cast two votes (i.e. one for each of their preferred two candidates – it is not possible for them to cast both their votes for the same candidate).

When they log into the online voting website, performers are able to review the candidates’ election statements before casting their votes. (Those statements are also available from the dedicated APM 2015 page on the PPL website: (and via our news story announcing the candidates in the Press section of our website)).

The ERS online voting process is very simple, and should only take a few minutes. Alternatively, those Eligible Performers who (for whatever reason) do not vote online during the online voting window can still vote at the APM itself (either in person or by proxy).

We will then combine the online votes with any votes cast at the APM itself, in order to be able to announce the final election results during the APM on 25 November.