Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 2)

Chris Castle is doing excellent work on this emerging scandal. It appears that Google, Amazon and MRI may be preparing to exploit a “loophole” in the text of the copyright act to not pay these songwriters. Sort of like the pre-1972 sound recording “loophole” that ended with Sirius and Pandora getting sued in class actions.

Music Tech Solutions

co-nois-1 “1 NOI” Means “1 Excel file for the NOIs Filed That Day, each Excel file contains tens of thousands of songs

As noted in Part 1 of this post, Google, Amazon and others are filing what are reportedly “millions” of “address unknown” NOIs with the U.S. Copyright Office.  I fully expect that Pandora will eventually do the same for its on-demand service and Spotify is likely to do the same.  Note–this type of carpet bombing of NOIs would not have helped Spotify in the David Lowery litigation because David Lowery registered his copyrights that are the subject of that litigation.

If you click here, you will find the most recent iteration of these massive NOIs, which apparently are being posted on a regular basis.  The screenshot above is the first page of these filings on the Copyright Office site, most of which came this month (September 2016).

Each…

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Andrew Orlowski on the Google Trojan Horse “Unlock the Box”

It’s easy to hate the cable company. Especially if you live in a city or neighborhood where there is only one poor choice for cable/broadband.   And those clunky old set top boxes?  Who needs them right?  In fact I haven’t used my Verizon set top box in months.  It’s not even plugged in.  Neither is the television.  My entire family watches stuff on their laptops, tablets or smartphones.  Even live television.  I’m happy to get rid of my set top box. And like most people in the country that is what I thought the “unlock the box” rule proposed by FCC chairman Tom Wheeler and FCC senior counsel (and former Google Shill) Gigi Sohn was all about.   Turns out it was really about giving big tech access to our viewing data, and creating a sort of FCC mandated “compulsory license” for video content.   Songwriters can explain to you the horrors of compulsory licensing with rates set by “captured” agencies.

Andrew Orlowski lays it all out here:

http://www.theregister.co.uk/2016/09/29/fcc_death_vote_golden_age_tv/

The closer you look at this, the stranger it seems. The FCC initiative is supposed to be about removing the obligation to lease equipment provided by the cable and satellite PayTV services to view the content. In response, TV and tech companies are backing a new technical framework that uses open standards and “appifies” everything, making any kind of hardware redundant. But the FCC has rejected it.

….

The alternative plan envisaged a “virtual headend”, with a much longer transition. The details would be worked out at some point in the future. Although the FCC isn’t formally permitted to devise radical policy shifts, here it did, with Public Knowledge as the FCC’s proxy. Public Knowledge backed the virtual headend plan (the Google-y alternative) and the FCC jumped in to support it.

Earlier this year FCC chairman Tom Wheeler addressed a Public Knowledge meeting apologizing for “stealing” its chief executive Gigi Sohn to become his “special counsel for external affairs” at the FCC.

Today, watching TV is one of the few areas in life left where we spend many hours away from Google’s obsessive data collection business and its pervasive advertising machine. But this would change all that: Google would have access to all the data our TV viewing generates. It could sell its own ads against other people’s content, without paying for it, while evading the rules for minority programming or protecting children from inappropriate content. Nice work.

For more Google shenanigans in DC read this:

Like a Meth and Vodka Fueled Low Grade Stripper Google Doesn’t Give a Shit and Goes Hog Wild in Last Days of Obama Administration

Big Tech’s Latest Artist Relations Debacle: Mass Filings of NOIs to Avoid Paying Statutory Royalties (Part 1)

Good catch by Chris Castle at MusicTechSolutions. This looks like a twofer. Digital services get to overwhelm the US Copyright Office with “unknown address” NOIs (that’ll teach you to oppose 100% licensing) and they get to exploit a loophole and keep the royalties. We will keep digging and report more later.

Music Tech Solutions

If the music-tech industry has one major failing from which all of their messaging and legal problems flow, it is their fascination with loopholes that predictably harm creators.  Whether it’s YouTube’s nefarious reliance on a tortured interpretation of the DMCA safe harbors that bears no relation to the law, Pandora and SiriusXM’s bone headed refusal to pay statutory royalties on pre-72 sound recordings (not to mention Pandora’s purchase of a radio station in a failed attempt to pay songwriters lower royalties), Spotify’s absurdly unnecessary collision with Taylor Swift over windowing, the MIC Coalition’s ridiculous manipulation of the Department of Justice on 100% licensing, or Amazon’s bizarre fascination with compulsory licenses for which songwriters have no audit right, these companies rival each other in the undignified pursuit of loopholes.

And in particular, loopholes that hurt songwriters who can’t afford the litigation and lobbying machine that is always the not-so-veiled threat brought…

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Must Read: T Bone Burnett’s Keynote Address at AmericanaFest

T-Bone

T-Bone Burnett’s keynote at Americana Fest Nashville TN Thursday Sept 22nd. Reprinted with permission of the author.

Technology is turning over every ten years. Their technologies don’t and won’t last.

Our art-if we do it right- will.

I have come here today first to bring you love. I have come here to express my deep gratitude to you for your love of music and of each other. And, I have come here to talk about the value of the artist, and the value of art.

When Michaelangelo was painting the great fresco The Last Judgment in the Sistine Chapel, he came under intense criticism from various members of the church, particularly the Pope’s Master of Ceremonies- a man named Cesena- who accused him of obscenity. Michaelangelo’s response was to paint Cesena into the fresco in the lowest circle of hell with donkey ears and a serpent coiled around him devouring, and covering, his nether regions, so to speak.

Cesena was incensed and went to the Pope demanding he censor Michaelangelo for this outrage, and the Pope said, “Well, let’s go have a look at it. ”So, they went down to the chapel, and when the Pope stood in front of the fresco, he said to Cesena, “You know, that doesn’t look like you at all.”

See, the Pope didn’t want to jack around with Michaelangelo. Michaelangelo was making things that were going to last for hundreds of years. His stuff was going to outlive the Pope’s ability to do anything about it, so the Pope bowed to the inevitable. The Pope was afraid of a painter.

The painter could create another dimension between Heaven and Earth. Flat ceilings seemed to come down into the room in three dimensions. He painted rooms where priests and the church could sit and be transported to- and engulfed in- a higher realm, learning ancient stories- thoughts kept alive over centuries. And he did it by mixing together things he found laying around on the ground- sand and clay and plants. He was a fearsome alchemist.

Art is not a market to be conquered or to bow before.

Art is a holy pursuit.

Beneath the subatomic particle level, there are fibers that vibrate at different intensities. Different frequencies. Like violin strings. The physicists say that the particles we are able to see are the notes of the strings vibrating beneath them. If string theory is correct, then music is not only the way our brains work, as the neuroscientists have shown, but also, it is what we are made of, what everything is made of. These are the stakes musicians are playing for.

I want to recommend a book to you- The Technological Society by Jacques Ellul.

John Wilkinson, the translator, in his 1964 introduction, describes the book this way- “The Technological Society is a description of the way in which an autonomous technology is in the process of taking over the traditional values of every society without exception, subverting and surpassing those values to produce at last a monolithic world culture in which all technological difference and variety is mere appearance.” This is the core of the dead serious challenge we face.

The first nuclear weapon was detonated on the morning of July 16, 1945, at 5:29 and 45 seconds.

At that moment, technocrats took control of our culture.

Trinity was the code name of that explosion. It was an unholy trinity.

Technology does only one thing- it tends toward efficiency. It has no aesthetics. It has no ethics. It’s code is binary.

But everything interesting in life- everything that makes life worth living- happens between the binary. Mercy is not binary. Love is not binary. Music and art are not binary. You and I are not binary.

Parenthetically, we have to remember that all this technology we use has been developed by the war machine- Turing was breaking codes for the spies, Oppenheimer was theorising and realising weapons. Many of the tools we use in the studio for recording- microphones and limiters and equalizers and all that- were developed for the military. It is our privilege to beat those swords into plowshares.

We live in a time in which artists are being stampeded from one bad deal to another worse deal. No one asks the artists. We are told to get good at marketing. I have to say- and I think I probably speak for every musician here- that I didn’t start playing music because I sought, or thought it would lead to, a career in marketing.

And, as we are being told that, our work is being commoditised- the price of music is being driven down to zero.

I am working with a group called C3, the Content Creators Coalition run by Roseanne Cash and Jeffrey Boxer to develop an Artists Bill of Rights. Jeffrey is here today to meet afterward with anyone who wants to get into this. The first right artists have is the right to determine what medium they work in. The second is the right to set the price of their work.

Every person worthy of the name artist, from Rembrandt to Paul Cesanne to Picasso to Jackson Pollack

From William Shakespeare to Tennessee Williams to James Baldwin and Jack Kerouac

From Bach to Stravinski to Mahler to John Adams

Every one of those artists made art that to be understood, the world had to change.

They did not adapt to the world, the world had to adapt to them.

The technocrats suggest we crowd source.

I suggest we not.

The very thing an artist does is figure out what he likes.

The technocrats- the digital tycoons- the iTopians- look down on artists. They have made all these tools and they think we should be grateful- subserviant even- and use their flimsy new tools happily to make them ever more powerful. But we can make art with any thing. We don’t need their tools. Music confounds the machines.

So the iTopians have controlled the medium and the message for a generation now. And they are making a complete hash of things. The clearest and most pervasive proof of this is the psychedelic political season we are in, which we can see playing out in every election around the world.

Before the atom bomb, we had begun to project idealized versions of people up on screens, while the people whose images were projected would hide behind the screens, knowing they could never measure up.

After the atom bomb, we have automated that process. On facebook, everybody is a star. The idealistic, lysergic promise of the 1960’s has been mechanized, allowing us to become ever more facile conterfeiters.

The mask has become the face.

Malcolm Muggeridge said that the kingdom Satan offers a man is to the kingdom of God as a travel poster to the place it depicts.

This internet technology that has been so wildly promoted as being the key, the final solution, to our freedom, has become our prison. What the false prophets of the internet said would replace governments and nation states and commerce, and create a free world of community and sharing, has led instead to a consolidation of wealth and power that makes the monopolies of the early 2oth Century- Morgan and Rockefeller and Carnegie- look weak and ineffective.

Ethan Zuckerman, the director of the MIT Media Lab has apologized for his part in creating what he calls a “fiasco”. Tim Berners Lee, who diagrammed the schematic for our current internet on a napkin, said at Davos last year that the internet needs to be rearchitected.

Our 21st Century communication network, regarded by its early adherents with a religious fervor, has been turned into a surveillance and advertising mecnanism. The World Wide Web is just that- a web that ensnares everyone who uses it.

Artists must not submit to the demands, or the definitions of, the iTopians.
Lastly, I am here to speak specifically about American music.

This country has been led by artists from Thoreau and Emerson through Walt Whitman to Woody Guthrie, through Thelonious Monk and Charlie Parker, to Presley and Dylan to The Last Poets and Kendrick Lamar. The Arts have always led the Sciences. Einstein said that Picasso preceded him by twenty years. Jules Verne put a man on the moon a hundred years before a rocket scientist did. Medieval stained glass windows are examples of how nanotechnology was used in the pre-modern era. Those artists were high technologists, and many other things- they were aestheticians, ethicists, conjurers, and philosophers, to name a few.

They took risks. Risks a technocrat could never take. Artists risk everything in everything they do. Risk is what separates the artist from the artisan. Art is not a career, it is a vocation, an inclination, a response to a summons.

We, in this country, have defined ourselves through music from the beginning- from Johnny Has Gone for a Soldier in the Revolutionary War, to The Star Spangled Banner in the War of 1812, to John Brown’s Body and the Battle Hymn of the Republic in the Civil War, to the incredible explosion of music of the last century that was called Jazz, or Folk Music, or Rock and Roll, or Country Music- because although our music has taken many different paths, it is all of a piece and a most important part of our national identity- of US.

Music is to the United States as wine is to France. We have spread our culture all over the world with the soft power of American music. We both have regions- France has Champagne, we have the Mississippi Delta. France has Bordeaux, we have the Appalachian Mountains. France has Epernay, we have Nashville. Recorded music has been our best good will ambassador. The actual reason the Iron Curtain fell, is because the Russian kids wanted Beatles records. Louis Armstrong did more to spread our message of freedom and innovation than any single person in the last hundred years. Our history, our language, and our soul are recorded in our music. There is no deeper expression of the soul of this country than the profound archive of music we have recorded over the last century.

This is the story of the United States: a kid walks out of his home with a song and nothing else, and conquers the world. We have replicated that phenomenon over and over. We could start with Elvis Presley, but we could add in names for hours- Jimmie Rodgers, Rosetta Tharpe, Johnny Cash, Howlin Wolf, Mahalia Jackson, Bob Dylan, John Coltrane, Billie Holiday, Loretta Lynn, Chuck Berry, Hank Williams, Aretha Franklin, Jack White, Dr. Dre. That is the American Character. That is Johnny Appleseed.

At last year’s MusicCares tribute to Bob Dylan, Jimmy Carter said, “There’s no doubt that his words of peace and human rights are much more incisive and much more powerful and much more permanent than any president of the United States.” I believe that is undeniable.

That’s who the artists are. We can’t forget that.

So, in conclusion, there is this sense that the technocrats are saying, “Look, we’re just going to go ahead and do this, and we’ll sort it all out later.” As they did with the atom bomb.

As artists, it is our responsibility to sort it out now.

Barnett Newman said, “Time passes over the tip of the pyramid.” By that he meant that there is a lot of room at the bottom of the pyramid to put things, but that as time passes, gravity washes them down into the sand. But if you put something right on the tip of the pyramid, it stays there.

We aspire to put things on the tip of the pyramid. That is our preference- our prefered medium.

Digital is not an archival medium.

Technology is turning over every ten years. Their technologies don’t and won’t last.

Our art-if we do it right- will.

 

 

Original Sin and Obama’s Missed Opportunity: What’s Next for the ASCAP and BMI Consent Decrees? — Music Tech Solutions

By Chris Castle

For the moment, songwriters are in a holding pattern but with the wind at their backs. I’m still looking forward to an explanation of why Google, Pandora, Clear Channel and a host of other giant multinational corporations with hundreds if not thousands of lobbyists need the awesome power of the U.S. Government to protect them from…songwriters.

via Original Sin and Obama’s Missed Opportunity: What’s Next for the ASCAP and BMI Consent Decrees? — Music Tech Solutions

Songwriters Lawsuit Give Scientists Clues to Location of Home Planet of Public Knowledge Staff, GiGi Sohn and Jeff John Roberts

Public Knowledge founder Gigi Sohn exhibits a large phone that may be capable of communicating with half-human half cephalopod neo-marxist extraterrestrials. 

We have written much about Public Knowledge and the hypothesis that the Google/Soros funded group are half human half cephalopod neo-marxists.    While there exists substantial evidence that Google funds this group, and while other google funded groups have neo-marxist affiliations, scientists have found no evidence to dismiss the theory that Public Knowledge (and now possibly journalist Jeff John Roberts) are half human half cephalopod neo marxists.

One of the hypotheses that attempts to explain the presence of possible half human half cephalopod neo marxists at the heart of the executive branch (Public Knowledge founder Gigi Sohn is Senior counsel to FCC Chairman Wheeler) is that they are of extraterrestrial origin.   The question then becomes “what planet are these suspected half human half cephalopods neo marxist from?”   Scientist may soon have an answer.

Scientists were recently able to validate Einstein’s General Theory by proving the existence of gravity waves produced by the collision of two massive black holes. Two days ago Songwriters of North America filed a lawsuit against the DOJ alleging both constitutional violations and violations of the Administrative Procedure Act.  This is the music licensing public policy equivalent of two massive blackholes colliding  This lawsuit allows a similar observational experiment.  The lawsuit gives scientists a way of measuring  disturbances in the Google-Soros-Shill-Space Continuum.   By examining the timing and the specific wording of “blog reactions” to the event by suspected half human half cephalopod neo marxists at Public Knowledge it is possible to extrapolate the source of  “policy directive waves” or PDWs.

The first sign that the lawsuit was producing PDWs and activating suspected half human half cephalopod neo marxists came when Public Knowledge filed this “blog reaction” about 24 hours after the lawsuit.   Scientists measured “inhuman levels of smugness”  and “false progressive hive mind reasoning”  in the blog and concluded the blog was influenced by extraterrestrial PDWs.

Yesterday radio astronomers released preliminary results which seem to indicate that Public Knowledge seems to be reacting to policy directive waves that  emanate from a planet orbiting Alpha-Beta-Centauri  or GOOG-94043.  This would make sense because scientists have previously hypothesized that the extraterrestrial Pharrell is suing a planet (UTUBE-172.217.22.110) orbiting the same star for 1 billion dollars. The constitutional and administrative challenge by songwriters would disadvantage UTUBE-172.217.22.110 in this lawsuit if courts agree “that the music licensing system wasn’t broke and DOJ needs to unfix it.”

The big surprise was that the PDWs may have activated a previously unknown half-human half-cephalopod  neo-marxist.  Journalist Jeff John Roberts at Fortune Magazine appeared to have exhibited a blog reaction to the policy event.  However scientists at Columbia Business School of Broadcasting were divided as one noted “Roberts has exhibited inhuman levels of  smugness for years, he may just simply be an asshole.”

 

Songwriters Sue DOJ, Loretta Lynch and Renata Hesse

It’s about fucking time.  Read Ben Sisario’s story at NY Times.

The lawsuit by Songwriters of North America contends that the Justice Department’s ruling on 100 percent licensing violates the property rights of songwriters, since it would mean that private contracts among songwriting collaborators — a common arrangement — might not comply with the new rule. In its announcement last month, the Justice Department suggested that writers with such agreements would need to renegotiate those deals.
The songwriters’ lawsuit argues that this change violates the Fifth Amendment by removing property rights without due process and seeks a declaration that the new rule is unlawful. In addition to the Justice Department itself, the suit names as defendants Attorney General Loretta E. Lynch and Renata B. Hesse, who oversees the agency’s antitrust division.

“The 100 percent mandate,” the suit says, “is an illegitimate assertion of agency power in gross violation of plaintiffs’ due process rights, copyright interests and freedom of contacts, and needs to be set aside.”

A Guide to the Department of Justice Ruling on “100% Licensing” — MUSIC • TECHNOLOGY • POLICY

By Steve Winogradsky and Chris Castle, all rights reserved.

The recent ruling by the U.S. Department of Justice in the ASCAP and BMI consent decrees sent everyone scratching their heads as to what do we do now?  The authors provide a helpful chart for songwriters, motion picture and television producers and other music users to see how bad it really is.

via A Guide to the Department of Justice Ruling on “100% Licensing” — MUSIC • TECHNOLOGY • POLICY

The MTP Podcast: David Lowery and Chris Castle Discuss Google’s Latest Assault on U.S. Copyright Office and the FCC’s End Run Around Private Contracts — MUSIC • TECHNOLOGY • POLICY

David Lowery and Chris Castle discuss a very Googley week in artist rights as Google attacks the Copyright Office and Tom Wheeler, the Chairman of the FCC and employer of Public Knowledge co-founder Gigi Sohn (or is it the other way around?) brings a Google-style Trojan Horse attack on film and television producers plus above & below the line folks around the world.

With show notes with the d/l about who really captured whom.

via The MTP Podcast: David Lowery and Chris Castle Discuss Google’s Latest Assault on U.S. Copyright Office and the FCC’s End Run Around Private Contracts — MUSIC • TECHNOLOGY • POLICY