Why is the Librarian of Congress letting the “mass NOI” scam continue? Is it because she has deep connections to at least one of the companies that financially benefits from the scam?
The apparent constructive termination of Maria Pallante the Register of Copyrights by the brand new Librarian of Congress has gathered a fair amount of coverage. Including a Wall Street Journal Op Ed that notes that it has the appearance of being orchestrated by Google. But this may just be the tip of the iceberg. We believe there are at least two major scandals brewing that could make the retaliatory constructive termination investigation look like a walk in the park. And of course both of these scandals seem to involve the new librarian giving Silicon Valley interests a free ride at the expense of creators. I’m gonna break this into two parts. Today we will look at the first of the two.
Librarian allows mass NOI filings that let Amazon and Google avoid paying mechanical royalties to songwriters
This is a pretty complex issue, and if it weren’t for Chris Castle at Music Tech Solutions, it may have taken publishers and songwriters years (if ever) to discover that Amazon and Google were “black boxing” songwriting royalties. Here’s how it works:
If a digital service like YouTube or Amazon wants to stream music they must serve an NOI or “Notice of Intent” indicating they are going to use the music. This is so the service can prove it knows who they are supposed to pay, and it alerts the songwriter that a service is using their music so they will know to expect royalties. It is the law! However if a service like YouTube can legitimately not locate a publisher and/or songwriter they can pay a small fee and file an NOI notice with the Copyright Office. This was never supposed to be the main way for streaming services to license songs. It was supposed to be a last resort. Services were expected to use best efforts, show good faith and file these notices only when they really couldn’t find the publisher.
However recently Google and Amazon have been electronically filing gigabytes of these “writer unknown/not found” notices with the Copyright Office. A cursory inspection reveals that many of these notices are well known songs by well known writers. And it is highly likely that Google and Amazon were already paying these writers. As an example Google has filed a a notice for Surfer Girl, one of the most well known songs by Brian Wilson and The Beach Boys.
Seriously? Google Play surely has been paying songwriter royalties to Wilson’s publisher! They shouldn’t be using this process to obtain a license. Why would they do this?
The first reason is it is a sleazy way of reducing expenses for Google and Amazon by essentially (illegally?) offloading the burden of accounting and tracking usage onto songwriters. This is one of the richest companies on earth. They really need the money? No.
The second reason is far more sinister. Much the way Pandora and Sirius tried to exploit a technical loophole in federal copyright law that allowed them to claim they didn’t have to pay royalties on pre-1972 recordings, Google and Amazon may not be paying royalties on the songs for which they’ve issued these NOIs. Here is what Chris Castle says about the NOI filings:
“I have been reliably informed that Google, Amazon and Music Reports among others are filing “millions” of “address unknown” NOIs with the Copyright Office based on a database that these companies are purchasing for tens of thousands of dollars from the Library of Congress (remember that the Copyright Office is under the jurisdiction of the Library of Congress). And by the way–once they file this NOI, they don’t pay royalties until the copyright owner can be identified in the records of the Copyright Office. Regardless of how easily the copyright owner could be found in other readily accessible databases.”
You get that? Even if the writers can be identified in the BMI or ASCAP database, if for whatever reason the copyright office databases doesn’t show registration for the works, Google and Amazon can stop paying. Even if they already know the owner of the song! What kind of people do this kind of shit? While they may have some technical cover it’s just a jerk move. To quote the Dude in The Big Lebowski:
“You’re not wrong Walter, you’re just an asshole
So where does the Librarian of Congress fit in to all of this?
Well, frankly I missed this at first. The Copyright office is housed within the Library of Congress, but it is NOT the Copyright Office that makes available the database that allows this ripoff, it’s actually the Library of Congress. As Castle explains:
“If you have a recording you want to use, you need to clear the song. You take that song title from the recording and look it up in the Library of Congress data dump. If it’s not there, you file the “address unknown” NOI. Wash, rinse, repeat 1,000,000 times or more. See how that works?
As if by magic, you don’t have to pay mechanical royalties until the songwriter figures out what you have done by checking the NOI submissions page at the Copyright Office (assuming anyone knows it’s there or knows their song might be listed) and then…does what?”
Why is the Librarian of Congress letting this scam continue? Is it because she has deep connections to at least one of the companies that financially benefits from the scam?
For full explanation read the 3 part Music Tech Solutions blog on this topic.