Sensenbrenner’s Extreme Moral Hazard: Bill rewards infringers and punishes songwriter victims

The company that claims to organize the worlds information, could not figure out how locate a songwriter named Brian Wilson, he wrote a little song called “Surfer Girl.”   They filed an “address unknown” notice with the US Copyright Office.  Wtf?

Sen. Sensenbrenner has introduced a bill called “The Transparency in Licensing Act.”  We songwriters call it “The Shiv Act.” It’s pure doublespeak. It has nothing to do with “transparency.”  It is clearly designed to stab songwriters in the back while greatly benefitting the largest members of the Read more here, here and here.

In case you are not familiar, the Mic-Coalition is an astroturf group made up of mostly tech behemoths and broadcasters.  At last count these companies’ combined market share exceeded 1.5 trillion dollars. The bill purports to support small businesses like the independent brewers represented by The Brewers Alliance, but it does not.  In fact my unscientific sampling of independent brewers seems to indicate 1) Independent Brewers didn’t know they were supporting this bill, 2) are unaware they were even part of the alliance 3)didn’t know they had urgent music licensing concerns requiring legislative fix. (Maybe the DC policy rep for Brewers Association should explain rationale to members?).

This bill seems to have been designed by the Very Large Business Administration (as opposed to the Small Business Administration). The bill is a complete giveaway to the likes of  Google, and ClearChannel. So just normal pay to play government legislation, right? Nothing to see here people, move along.

No, it’s a little uglier than usual.  The problem is that many of these Mic Coalition companies (along with Amazon) are blatantly flouting the law by using songwriters’ work without proper licenses or paying royalties.  That’s why I call this bill an extreme moral hazard, because it rewards the mass infringers with new protections while stripping the victims (songwriters) of ability to take legal action.

And it’s not a matter of these companies accidentally using a few unlicensed works here and there; or a few dozen songwriters are going unpaid. Between Amazon, Google, Spotify and Pandora, these companies openly admit they are using millions of songs without any idea who to pay (which clearly implies they don’t have licenses). How do we know this?  Well, quite helpfully these Mic Coalition companies along with Amazon have filed over 45 million “address unknown” notifications with the US Copyright Office since March 2016.  Presumably this little maneuver was used to buy a little time while they came up with this bill.  These notices are hiding in plain sight on the US Copyright office website:

(These zipped NOI files have up to a hundred thousand songs each)

Open up one of the zipped files and it’s apparent these services are not even bothering to cary out a proper search for the songwriters.  Look at the screenshot above.  It didn’t take but two minutes to find the first outrage.  Google couldn’t locate a guy named “Brian Wilson” who wrote a little song called “Surfer Girl.”  Has anyone in Sensenbrenner’s office bothered to look at these NOIs to see if these services are even trying?

No?  Didn’t think so.

These services have had more than a year and a half since the first class action lawsuits were filed against them to get their shit together.   But instead of actually coming up with a system to identify unlicensed works, or to engage a responsible third party that can do the work, they apparently spent their time and energy coming up with a bill to  make their legal liabilities go away.

Why innovate when you can pay-to-play legislate?  Silicon Valley is so full of shit when it comes to “innovation.”  Sometimes I wonder if we songwriters have been doing this all wrong.  Instead of spending hours writing, collaborating and innovating new songs, maybe we should just get a federal lobbyist and  some Senator to mandate us a living?  Why should anyone work hard and play by the rules if being lazy and cheating pays better?

Here’s a better idea: Washington DC should do nothing. Stay out of the way and let the matter sort itself out.  Interfering in this manner is hindering the development of effective licensing mechanisms. As long as the feds keep trying to bail these services out they won’t get their shit together.  As Madison presciently  noted in The Federalist Papers No. 44

“[Government] interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.”

Sadly, this bill is crony capitalism at it’s finest.  This bill will reward the digital services that have infringed on millions of works, and punish the songwriters, the victims.