Screw you too, Pandora™ PT III. Kangaroo Court: Pandora Bill Requires Firing of Copyright Judges and Replacement with Fake Judges.

As you may or may not know Pandora is trying to push a bill through congress that would slash payments to artists by as much as 85%.   By “pushing through congress” we  actually mean paying-oops er we mean being a “top contributor” to Rep. Chaffetz according to Open Secrets, and then Chaffetz magically sponsors the IRFA bill which will pretty much just benefit Pandora.    Pandora pays hundreds of thousands of dollars to lobbyists including a former legislative director of a leading member of the House Judiciary Committee.  It will let Pandora get around agreements it made with artists unions and copyright holders. This is like Delta Airlines going to congress and asking them to pass a law to force  their pilots union and fuel vendors into accepting an 85% cut.  We don’t do this in this country.  Screw these guys.

So every day this week we are gonna highlight something that we particularly offensive about Pandora and this bill.

Tell Congress: Don’t Slash Music Creators’ Pay

#3.  Pandora’s  Kangaroo Court and Fake Judges.

Hyperbole?  Not really.  What else would you call it when a bill designed to benefit a private corporation demands the dissolution of one court and replacement with another court but the judges aren’t allowed to consider “facts” that the bills backers find inconvenient?

No you didn’t wake up in some 1970s third world kleptocracy.  Nope this is really happening.  The  Tim “I’m- a-friend-of-musicians-but-their-unions-should-be-prosecuted-under-the-sherman-act” Westergren backed Internet Radio Fairness Act would do exactly that.

By cleverly switching who appoints these judges from the (non-partisan) Librarian of Congress to the President with Senate approval,  the current un-Pandora™-approved judges will be let go.

(a) Appointment.— The Librarian of Congress President of the United States, by and with the advice and consent of the Senate shall appoint 3 full-time Copyright Royalty Judges, and shall appoint 1 of the 3 as the Chief Copyright Royalty Judge. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights.

Next the Pandora sponsored bill would makes sure the new judges couldn’t rule unfavorably for Pandora by restricting what facts they are allowed to consider.   For instance the judges are REQUIRED to consider the rates that non interactive radio stations pay (read broadcaster Sirius/XM), but the section that requires the judges consider the rates other interactive broadcasters pay is removed from the Law.  What’s more it expressly  FORBIDS the judges from considering the previous interactive rates set in other agreements and the  rulings and decisions of the previous judges!!  He who controls the past controls the future?!!!  This is fucking Orwellian.

You don’t understand?  Pandora and Spotify are more like jukeboxes then radio.   Spotify plays artists on demand and Pandora plays artists near on demand.  The performers provide a large share of the “value”  in this transaction.  In traditional broadcast the radio station can be seen to be “promoting” the performer. Further unless you get on a request line they don’t play exactly the artist you want.  Thus royalties for webcasters  like Pandora  have always been higher than for traditional broadcast radio because of the higher value provided by the artists.  But this rewriting of the law  forces the judges to ignore the differences between a normal broadcaster like Sirius/XM and near on demand Pandora when setting rates. It doesn’t allow the judges to consider the other interactive services so their only choice is to set rates the same as XM/Sirius.

It’s really quite shitty.  Yes there are judges in the process but the outcome is predetermined.  That’s why I say “fake judges”.  They aren’t really allowed to judge anything.

added language:

(B) …….under this paragraph, the Copyright Royalty Judges shall apply the objectives set forth in section 801(b)(1) and may also consider the rates and terms for noninteractive digital audio transmission services under voluntary license agreements described in subparagraph (A). that were entered into under competitive market circumstances. In any proceeding under this subsection, the burden of proof shall be on the copyright owners of sound recordings to establish that the fees and terms that they seek satisfy the requirements of this subsection, and do not exceed the fees to which most copyright owners and users would agree under competitive market circumstances.

added language

(v) shall not take into account either the rates and terms provided in licenses for interactive services or the determinations rendered by the Copyright Royalty Judges prior to the enactment of the Internet Radio Fairness Act of 2012.

Screw you too Pandora.

8 thoughts on “Screw you too, Pandora™ PT III. Kangaroo Court: Pandora Bill Requires Firing of Copyright Judges and Replacement with Fake Judges.

  1. Trichordist…The bigger picture…

    Always when these initiatives come up we have to ask why is this occurring and why is this occurring now?

    Radio Industry Files SESAC Anti-Trust Complaint

    October 9, 2012. Nashville, TN. The Radio Music License Committee (“RMLC”) has announced the filing of an antitrust complaint against SESAC concerning anticompetitive behavior that allows SESAC to charge the U.S. commercial radio industry monopoly prices to publicly perform musical works in the SESAC repertory. The RMLC is the industry group that has traditionally represented several thousand commercial radio stations in music license matters with ASCAP and BMI. In fact, the filing of the SESAC complaint comes on the heels of the RMLC’s recent settlements of longstanding litigations with both ASCAP and BMI.

  2. I am guessing that you will not post this, because it’s coming from me, and I make this comment not to state any position one way or the other on the proposed IRFA bill (which I believe you mischaracterize in multiple ways). However, I simply want to point out that in what appears to be your desire to slam the bill six ways from Sunday, you appear to not be familiar with the reasoning or history behind some of the provisions. For example, the switch from having the LoC to the President appointing the CRB has nothing to do with Pandora, and everything to do with the Appointments Clause of the Constitution.

    The Appointments Clause requires the President or heads of departments to appoint all judges. The LoC as a quasi-Congressional organization is not technically a part of the executive branch, and thus, it is unconstitutional for it to appoint judges. This issue was raised a few years back (alongside similar questions about a patent review board) in a paper by a distinguished law professor, and a series of lawsuits have since been ongoing ever since, arguing that the entire CRB is unconstitutional, in violation of the appointments clause.

    In your desire to slam Pandora and not understand the history here, you seem to be missing out on the fact that, without this change, it is entirely possible that the courts will actually *completely throw out the Copyright Royalty Board and all its earlier rates as unconstitutional.*

    In simpler terms: this part of IRFA is designed to fix a constitutional problem that might lead to the entire CRB and all its existing rulings being tossed out. I assume that you would find that much more troubling than Pandora being allowed to reduce its rates.

    Not everything is a conspiracy. The change from LoC to the President appointing the CRB is an attempt to keep the CRB from being declared unconstitutional, which I would think you’d appreciate.

    Separately, if you’re going to accuse Pandora of “buying” Chaffetz, as you appear to be doing, it’s only fair to point out that they donated even more to Howard Berman, who is the RIAA’s biggest supporter in Congress, and a huge proponent of increasing royalties.

    1. Oh Mike.
      Are you feeling it? Cause I’m feeling it.

      This is like one of those hollywood romantic comedies. You know where the two lead actors start out hating each other but by the end they fall madly in love? Of course in the middle there are all kinds of crazy hijinks: twitter spats, dueling SXSW panels, private detectives, shill reports and of course the friend that really thinks he has a shot with you but he doesn’t. You know just to complicate matters.

      Who would play you in the movie? And don’t say George Clooney. Everybody wants Clooney to play them in the movie. I think I’m gonna go older. Just a few years. Bryan Cranston. It’ll define our characters a little better for the viewers.

      The climatic scene should be on the Van Dorn Metro Platform. I’m keeping the train doors from closing with my foot. I’m shouting into the train car:

      Me: “Mikey, the patent law judges have nothing to do with this! For christ sakes Mike listen to me!”

      Recorded Voice “Someone is blocking the door. Keep your hands and feet clear of the door”

      Me: “They were appointed by the head of the USTPO, which is not head of department hence unconstitutional.”

      Recorded Voice “Someone is blocking the door. Keep your hands and feet clear of the door”

      Me: The Librarian of congress is head of agency. Yes there are lawsuits but the Courts agree with me Mikey! That’s all that matters. Stop reading wikipedia! Stop listening to Eric Goldman, Mikey!”

      Then we kiss.

    2. This comment omits the July 6, 2012 ruling of the United States Court of Appeals for the District of Columbia Circuit in Intercollegiate Broadcasting System Inc v. Copyright Royalty Board which held that while the initial appointment of the judges had its flaws, the D.C. Circuit was able to correct the legislation with a simple fix:

      Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. (emphasis mine)

      So the assertion that the judges need to be gutted in order to save them is inapt.

      As far as the political contributions go, neither Chaffetz nor Berman represent anywhere close to Pandora. Berman actually does (or did) represent a district that has a high concentration of entertainment industry companies and citizens including RIAA members and employees of RIAA members, so it should be unsurprising that he represents his district. You know–“Hollywood.” Berman is not carrying the IRFA, Chaffetz is. What other connection Pandora has to Utah and what connection Chaffetz has to webcasting is yet to be revealed.

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