The Bipartisan Classics Act Is Ready For Prime Time: Time to fix Pre 1972 Loophole

Issa (R-CA) and Nadler (D-NY) sponsored the Classics Act in the house. 

Artists that had the misfortune to record before 1972 do not get royalties for the public performance of their recordings on satellite and non-interactive streaming services.  This so-called loophole is simply a creation of federal courts (Ninth & Second) and apparent collusion by digital services (DOJ antitrust: Agreeing to fix a price at $0 is still price fixing).

The Classics Act is designed to fix this loophole.  This fix has long been championed by Rep Nadler (D-NY) and Rep Issa (R-CA).  It’s a simple matter of fairness and equal treatment under the law.  There is no way in hell that the legislators who enacted The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) intended to leave out pre-1972 performers.  Why has this persisted so long?

Artists owe a debt of gratitude to Nadler and Issa for relentlessly pushing this bill forward.  Also  Pandora, SoundExchange and other groups like Music First, the Internet Association, the GRAMMYs,  Screen Actors Guild‐American Federation of Television and Radio Artists, American Federation of Musicians, the Content Creators Coalition, the Future of Music Coalition, Fare Play, the Rhythm and Blues Foundation, and the Living Legends Foundation deserve their fair share of the credit.


With US Tanks Massed on Canadian Border Law Prof Michael Geist Saves Canada by Sacrificing Canadian Artists/Culture

What’s that? …. There are no tanks?…. Oh….So Canada’s most “internet famous” copyright law professor Michael “Neville Chamberlain” Geist is simply selling out Canadian artists for no apparent reason?!? And the beneficiaries of his tortured interpretation of facts and data is predictably the US Silicon Valley monopolies that indirectly benefit from the massively infringing pirate website operations?  (And never mind kiddie porn sites, that’s another blog post, we’ll get to that shortly.)

This is especially funny since Geist doesn’t appear to discourage blog comments expressing anti-American jingoism.  If only his supporters took the time to follow the money.  Geist’s home base is the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottowa. You can think of Samuelson-Glushko as the Koch brothers of Silicon Valley.  The sole purpose of Samuelson-Glushko clinics appears to be as a policy washing machine for Silicon Valley interests.   Money comes in one side and  out pops “academic papers” and “research” that seems to always neatly supports the public policy positions of US based internet monopolists.  And weakens the rights of Canadian copyright holders.

Remember Geist is no crank law professor at some no name school out in the prairies. Geist is at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law.

Read more about Geist here and ask yourself  “Who is this guy really advocating for?”  And also what’s up with his mysterious Lawbytes loan out company?

Geist Flips the Mob Switch

The Spy Who Consulted Them: A Closer Look at Lawbytes, Inc. f/s/o Michael Geist

Canadian Copyright Modernization Act—Whose shadow is in the fine print?

The Professor Has No Clothes

The Geist in the Hen House

The Price of Support

Is Geist singing from the EFF songbook?

News From the Goolag: Geist strikes a blow for piracy…I mean, consumers

Lawbytes, Inc. Redux: What is the difference between $24,500 and $25,001?

The Elusive Lawbytes, Inc.

The Industry Canada Music Study Part I

The Industry Canada Music Study Part II

Only The Shadow Knows Part 1

Only The Shadow Knows Part 2

See also: A Dedicated Group of Likeminded People

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist

See also: What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)

See also: Artist rights are human rights

The Spy Who Consulted Me Redux: The Consultation of the Mikado

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist

Historic Coalition of 213 Musical Artists Calls on Congress to Pass CLASSICS Act

The 1976 copyright act federalized copyrights for post 1972 sound recordings.  Sound recordings made pre-1972  were covered and remain covered by state copyright laws.  The 1976 act did not strip the works of copyright protection.  Several years ago digital broadcasters and non-interactive streaming services all decided (simultaneously) that the Digital Performance Right in Sound Recordings Act of 1995 did not apply to works copyrighted before1972. And ever since these services have tried to avoid paying performers who had the misfortune to record before 1972.   This is often referred to as a” loophole.”  But I have always maintained that there is no loophole.  The DPRA did not specify that the sound recordings be protected by federal copyright to receive digital performance royalties.  Just copyright. State copyright for instance.  Look it up if you don’t believe me.

Further in order to maintain this legal stance, you have to believe that the members of congress that drafted and passed the DPRA specifically intended to deny digital royalties to the likes of Duke Ellington, Aretha Franklin, The Allman Brothers, Ray Charles, Willie Nelson, and Captain Beefheart to name just a few.  Nowhere in the congressional record is this reflected. Nowhere. It’s a complete fiction. Yet the increasingly lazy and myopic federal courts can’t be counted on to look at the record or even the text of the act. Therefore a wide range of musicians, unions and industry trade groups have come together to try to fix this problem.  This is an easy fix. This act makes it explicit that this applies to pre-1972 recordings. It’s simple matter of fairness.  Everyone loves fairness. It’s like kittens.Who could possibly be against kittens? I mean aside from Lofgren and Sensenbrenner  Let’s get this done.  

Below is the press release from…

Historic Coalition of 213
Musical Artists Calls on Congress to Pass CLASSICS Act,

Fix the “Pre-1972” Loophole for Legacy Artists
Music Organizations Press Congress to Consolidate
Widely Backed Music Licensing Reforms Into Single Bill
WASHINGTON, February 13, 2018 — An unprecedented coalition of 213 musical artists, supported by eight leading music organizations, called upon the U.S. Congress to pass the CLASSICS Act, bipartisan legislation pending in both the House and Senate to address one of copyright law’s most glaring loopholes. 
In a two-page advertisement that will appear in Wednesday’s Politico, the artists state:
Digital radio makes billions of dollars a year from airplay of music made before Feb. 15, 1972. Yet, because of an ambiguity in state and federal copyright laws, artists and copyright owners who created that music receive nothing for the use of their work. The CLASSICS Act (H.R. 3301 / S. 2393) would correct this inequity and finally ensure that musicians and vocalists who made those timeless songs finally get their due. We urge Congress to pass the CLASSICS Act and other pro-artist reforms quickly. 
The advertisement marks the start of a robust advocacy campaign by artists and music community leaders A2IM, American Federation of Musicians, Content Creators Coalition, musicFIRST Coalition, Recording Academy, Recording Industry Association of America, SAG-AFTRA and SoundExchange.
The ad can be viewed here.
The CLASSICS Act is an essential component of a package of music licensing reforms supported by the organizations that includes additional critical reforms such as the Music Modernization Act (H.R. 4706 / S. 2334), the AMP Act (H.R. 881) and the establishment of market-based rate standards. In the coming weeks, music community leaders anticipate the House Judiciary Committee will commence formal consideration of the music licensing reform legislation with the goal of consolidating the key reforms into a single bill.

The Spy Who Consulted Them: A Closer Look at Lawbytes, Inc. f/s/o Michael Geist

Meanwhile in Canada…another unaccountable law professor, Michael Geist appears to be running interference for U.S. Tech Firms as Canada considers home grown anti-piracy legislation. Fortunately Chris Castle at Music Tech Policy (and others) have done some excellent reporting on the Geist over the years. We are gonna rerun a few of these articles over the next few weeks so that it is clear to Canadian artists the ethical and intellectual makeup of this fellow. Lets start with the mysterious no bid government contracts he received for even more mysterious work. From 2010:

Music Technology Policy

If you follow what passes for intellectual property policy “debate” online, you will no doubt have heard the anti-copyright amen chorus warming up about the lack of public consultation in the negotiation of the Anticounterfeiting Trade Agreement, or ACTA.

This wringing of hands and wailing of the amici has particular resonance amongst non-governmental organizations, their advisors, their academic rock stars and breathless acolytes. The non-governmental organizations and academics, most prominently the very well funded Michael Geist, advisor to the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP, who most frequently attach themselves to the negotiation of international copyright treaties originating in Geneva are particularly incensed.

These “NGOs” complain that the public is insufficiently consulted by—governmental organizations. In other words, the NGOs (self-appointed, frequently astroturf groups with shadowy funding) are complaining that the representatives of the public are insufficiently representative. Only the NGOs and professoriate…

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Songwriters Guild of North America Negotiates Changes to MMA to Increase Songwriter Representation

We are pleased to see that the conversations between Rick Carnes (SGA) and Rep Doug Collins that began at University of Georgia Artists Rights Symposium has resulted in improvement to the representation of songwriters on the board proposed in the Music Modernization Act.   Press release from SGA follows.


Music Publishing Industry Support for Small Claims Act Also Secured

WASHINGTON — The Songwriters Guild of America, the largest and longest-established music creator advocacy organization in the United States, today announced it has negotiated changes to the pending Music Modernization Act (HR 4706) that will enable it to support passage of the legislation.  Among the agreed-upon amendments to the bill are:

  • the doubling of songwriter and composer representation on the board of directors of the Mechanical Licensing Collective established by the Act;
  • the re-alignment of an Unclaimed Royalties Oversight Committee that will now have a 50/50 music creator and music publisher balance; and
  • clarifications to the payments sections that will make it easier for music creators to get the full benefits of their negotiated publishing agreements as applied to the distribution of what the bill refers to as “unclaimed” funds by music publishers.

As part of the discussions leading to changes in the Music Modernization Act, the US music publisher community has also pledged to lend its full support on Capitol Hill to SGA’s efforts to secure quick passage of the pending Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2017 (HR 3945). CASE will provide music creators with a much needed, opt-in alternative to expensive, full blown copyright infringement actions against unlicensed users of their music.

Speaking on behalf of SGA, multi-platinum songwriter and organization president, Rick Carnes, noted that, “the benefits of the pending Modernization law, with the changes SGA has successfully sought, have made the current bill deserving of our support.  We continue to applaud the efforts of those members of the music creator and music publishing communities seeking further improvements and clarifications that would make the proposed legislation even more advantageous to American songwriters, composers and independent publishers. Still, the bill as it now stands would — on balance — benefit those creators we are sworn to protect significantly more than no bill at all.  Our two-word mission statement is to ‘protect songwriters.’ After more than six months of hard work alongside our colleagues in the independent music creator community through Music Creators North America (MCNA), SGA feels, individually, that it succeeded insofar as possible in carrying out our mission.”

Under the agreed-upon changes, the Mechanical Licensing Collective board will now have four professional songwriter/composer voting members and ten voting music publishers.  The Unclaimed Royalty Oversight Committee, whose role will be to oversee issues concerning ownership and distribution of so-called “unclaimed” royalties, will now have evenly balanced, “five and five” representation among ten voting members.  As to clarifications regarding payment of music creator royalties received from the Collective by music publishers, the bill is now clearer in spelling out that such royalties are to be distributed on a title-by-title basis to songwriters under the percentages set forth in their publishing agreements.  In other words, a songwriter or composer operating under an agreement that gives such creator the benefit of a 90%/10% split with its music publisher will have that same split applied in the distribution of “unclaimed” royalties that have been matched under the usage formula set forth in the legislation.

Other benefits of the legislation include establishment of a system that:

  • is likely to substantially improve royalty payment compliance by digital distributors of music on a going-forward basis;
  • changes in royalty rate determination formulas that will benefit both music creators and their copyright administrators; and
  • the promotion of greater fairness for US performing rights societies in their negotiations with users.

“Among SGA’s important roles following the bill’s enactment,” continued Carnes, “will be to assist the songwriter and composer community in making sure that every music creator receives the full benefits intended under the Act.  That includes publication of materials designed to inform and remind creators, in consultation with their legal and financial representatives, how best to ensure the maximum, accurate receipt of all royalties to which they are entitled.”  Carnes also pledged that SGA will be in the forefront of efforts, along with its fellow MCNA music creator groups, to ensure that experienced, knowledgeable and — above all — independently-minded songwriters and composers are tapped to serve as board members of the Collective.

SGA, established in 1931, is the largest and longest-established advocacy organization run solely by and for songwriters and composers in North America.  In addition to its role as a legislative advocate, SGA provides copyright administrative services and other informational and representation services to its national US membership upon request

The Restatement Scandal: The Futility of False “Unity”

Chris Castle has some excellent analysis of the ALI copyright restatement project as well as some other recent ALI restatements. Hew writes:

However, there appears to be a trend at the ALI to trade on the “Restatement” series to provide a vehicle through which those who control the pen in drafting new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be rather than a tool for practitioners to quickly learn what the “black letter law” is. This is a way to make an end run around the democratic process to deny voters and their elected representatives their proper role. What’s different is the potential for the moral hazard of astroturfing making it more important than ever to know who is behind the pen.

Music Technology Policy

Who ever thought that the American Law Institute–of all places–would become the center of a corruption scandal over–of all things–its “Restatement of the Law” series.  Chances are good that MTP readers outside of the legal profession have no bloody idea what a “Restatement” is and will sleep well in that knowledge deficit.  But for lawyers (particularly litigators), the Restatement series has had some passing value.

However, there appears to be a trend at the ALI to trade on the “Restatement” series brand value to provide a vehicle through which those who control the pen in drafting both new versions of old Restatements and new Restatements on new topics can try to change the law to what the drafter thinks it ought to be–rather than a tool for practitioners to quickly learn what the “black letter law” is.  This is a way to make an end run around the democratic…

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Hanlon’s Razor and the American Law Institute’s Misguided Copyright Restatement Project

Guest post from The Invisible Stagehand.

I’d like to offer an alternate theory on the foundering attempt by the American Law Institute to “restate” copyright law.  While my colleagues make good points on the lack of transparency, openness and fairness with the current ALI process; rightfully note the conflicts of interest; and excoriate Sprigman for taking money (however indirectly) from Silicon Valley while working on the project, the most obvious conclusion is that those in charge of the restatement are incompetent.  Not devious.

I refer you to Hanlon’s Razor:

Hanlon’s Razor: “Never attribute to malice that which is adequately explained by incompetence.”

Now incompetence rather than malice doesn’t mean that someone shouldn’t be fired. Someone probably should be fired. Start with Sprigman. He’s in charge of the project. If that doesn’t work fire someone else. Repeat until incompetence stops.

The case for incompetence.

Exhibit One: The fact that this is now a PR issue for the ALI is the clearest example of incompetence.  Sprigman or Director Revesz could have made some relatively small changes to the project in 2015 (as many suggested) and the acting Register of Copyrights would have never written the now infamous “pseudo version of the copyright act” letter. This of course was the basis of the Billboard story that enraged artists. In other words an easily avoidable mistake started the entire controversy. Incompetence.

Exhibit Two: Leader of the project Christopher J Sprigman.  Good lord does the man have a shred of common sense?  I assume the position as “reporter” on the ALI Copyright Restatement is a position that confers some prestige. Why screw it up by taking on Spotify as a client in the middle of the project? Or co-author papers that are directly or indirectly funded by Google at the same time? It’s not an “impartial” look. Did he need the money? I doubt it. Now, not only does his reporter position NOT impart prestige, his own reputation is in tatters. What a screw up.  Clearly not a devious mastermind.

Exhibit Three:  Sprigman’s letter proposing the project clearly indicates he had a result in mind. It reads like a police confession. He admits to everything he is accused of by his critics.  A scholarly project like this is not supposed to start with conclusions and work backwards. Yet he pretty much admits this is his intention in the letter. If I intended to do something this dishonest I wouldn’t start by writing it down in a letter that would surely one day become public. I was too dumb for law school. But this guy must be dumber. Again not a devious mastermind.

Exhibit Four:  If you choose to measure incompetence by quantity, look at some of the letters that take issue with the drafts. For instance the Author’s Guild wrote a long letter to ALI Director Revesz detailing 16 major mistakes in the draft of the first chapter.   Some of these mistakes are just bizarre, (I can’t see the draft) but apparently royalties and fees paid to creators are referred to as “taxation.”  This is either a dumb mistake, or an unnecessary provocation of copyright holders that only an incompetent person would make while trying to build consensus for a draft. Incompetence.

Exhibit Five: Just for fun, let’s take last exhibit and assign deviousness to Sprigman and Revesz.  Suppose they were attempting to pull a variation of a machiavellian committee minority strategy. A competent strategist wouldn’t needlessly antagonize the committee minority by using the term “taxation.”  The minority (pro copyright members) are not supposed to see that the game is rigged. The marks are supposed to think they were simply outvoted. That’s how the con works!! Again incompetent not devious. Maybe add arrogant.

Exhibit Six:  Sprigman took to facebook to call out his critics describing them as “hacks engaging in hackery.” I was speechless when I came across this on facebook. This is not the kind of thing that a competent leader does when faced with criticism.  The guy is clearly out of his league.  Again not a devious mastermind.

I think you get my point.

The Invisible Stage Hand works in the live music business.



Rigged: Spotify’s Litigator @CJSprigman is Leading American Law Institute’s “Restatement” of Copyright

Christopher J. Sprigman a New York University Law School professor is leading the American Law Institute’s dubious “Restatement of Copyright” project, a project the Acting Register of Copyrights called  an attempt to establish a “pseudo copyright act”  while simultaneously representing Spotify in the Bluewater v Spotify copyright infringement case.

Pure hubris. How is it the American Law Institute doesn’t see the appearance of impropriety?  The process is clearly rigged against creators.  I can only conclude the leadership at American Law Institute is corrupt or incompetent.  David F. Levi along with the entire board should resign.

While Leading @AmLawInstitute Copyright “Restatement” It Appears Sprigman Got Funding From Google For Papers

One of three Google funded papers co-authored by Sprigman which were published after he began working as the  “impartial” reporter on the American Law Institutes Copyright Restatement project.

Silicon Valley corporations and anti copyright ideologues are unhappy that there is even a shred of copyright protection left for artists. They have not been able to completely eliminate copyright through congress or the courts so a small highly ideological group have embarked on a dubious “restatement” project to create what the US Register of Copyrights calls a “pseudo copyright act.”  This is an end run around the legislative and judicial branch.

The vehicle is an American Law Institute Restatement of Copyright. In the past the American Law Institute has issued restatements when there were conflicting state laws or matters of  “common law.”  Never before has the ALI issued a restatement when there is a federal statute that spells out the law.  After all the statute is the statute. Who is the ALI to tell judges what the statute says?

The damage comes to artists because it will at best create confusion on copyright in courtrooms.  At worst the project will further tilt rulings towards Google and other Silicon Valley firms that infringe upon our works with impunity.  Like they really need any more money.

The whole thing is rigged.  According to the Google Transparency Project the leader of the restatement Christopher J. Sprigman has been taking funding from Google to write research papers since at least 2011. And he has apparently been receiving funding while working on this project (see screenshots above).

You also may recognize the name because he is Spotify’s lawyer in the Bluewater v. Spotify case. Yes, the same joker that has argued there is no such thing as a streaming mechanical royalty.  This despite the fact the federal Copyright Royalty Board just set the new royalty rate. WTF right? This is the “impartial” reporter the American Law Institute put in charge of the copyright restatement project.

The ALI should end this project now.  It stinks of corruption and cronyism. It’s an embarrassment.  David F. Levi the president of The American Law Institute has been made aware of the problems with this project and has done nothing about it. He should resign for allowing this academic fraud to take place on his watch.