by Chris Castle
You’ve probably heard about the “mass NOI” problem resulting from the Copyright Office allowing Big Tech to profit from a loophole in the Copyright Act. The loophole permits digital music services to get away with what would otherwise be both infringement and nonpayment of royalties under yet another safe harbor, this time from 1976.
Remember that under U.S. law, unless the service has a direct license with the copyright owner, a digital service can rely on the government’s compulsory license by sending a “notice of intention” (or “NOI”) to the copyright owner. One could argue that those are mutually exclusive end states, so keep that in mind. As anyone who has done song research knows, there are a number of reliable places to look for a song copyright owner, starting with the performing rights societies like ASCAP and BMI that provide a free lookup service on their websites.
But…you can’t find what you don’t look for. Enter the loophole. The Copyright Act says that if you can’t find contact information for the song copyright owner in the Copyright Office’s public records, then you can send your NOI to the Copyright Office instead of to the copyright owner. Then you are deemed to have a compulsory license after that service date. The problems is that while the government might have thought in 1976 when the section was enacted that they had to tie up that loose end by referencing the Copyright Office, they probably did not realize that they were also requiring a look up in what was to become arguably the least reliable source of song information. Not to mention that updating the Copyright Office records is done at a waddling pace.
Oh and one more thing–if the service sends the address unknown notice to the Copyright Office, they don’t have to pay royalties until the copyright owner becomes identifiable in the public records of the Copyright Office, which may be never. (I have an article in the American Bar Association Entertainment & Sports Lawyer periodical on this for those who want more information.)
The way the loophole works is that if a song has not been registered in the Copyright Office (which is not required) then the service can say that the address of the copyright owner is “unknown,” even if the service has actual knowledge of the copyright owner’s contact. See the loophole? Even if they know who you are and how to reach you, they can say they don’t know if you haven’t registered your copyright–which you are not required to do unless you’re planning on suing. In addition to actual knowledge, there’s also the argument that a reasonable person could have found the song copyright owner if, for example, that song is in the Billboard Hot 100’s Top 5.
If you’ve ever tried to register a copyright, you know how long the Copyright Office can take to get you a conformed copy of your registration–months. Why? Because they appropriately give your registration the once over to make sure that you filled it out correctly and giving that attention takes time. Anywhere from six to ten months in fact.
Unfortunately, the Copyright Office does not give the same degree of attention to address unknown filings. In fact, as far as I can tell, they give no attention at all to address unknown filings.
Historically, there were a handful of these “address unknown” filings. But all of a sudden after independent songwriters and publishers started suing Spotify, millions of “address unknown” filing started appearing at the Copyright Office in April 2016. There are now over 60,000,000 of these notices on file that have been posted. That means that there are 60,000,000 free licenses in effect.
When the Copyright Office started getting these filings, they began posting them in huge compressed files. So if Amazon filed an address unknown NOI, it would appear to be one or a few NOIs, but each one of those NOIs had an Excel spreadsheet attached that had tens of thousands of songs on it in most cases.
Given that the Copyright Office chose to post the NOIs in this manner, it was essentially impossible for a songwriter or even most music publishers to search all of the NOIs to see if their songs were included or included incorrectly. This creates an obvious and forseeable problem for anyone wanting to check if their songs were incorrectly included in a mass NOI.
Since the Copyright Office wasn’t checking and since they made it virtually impossible for anyone else to check, it is likely that there are many incorrectly filed “address unknown” NOIs, which means that there are likely an equally massive number of infringements as those compulsory licenses would be invalid. Of course, services would argue that if their compulsory license fails, they have an implied license since they notified song copyright owners of their usage through the address unknown NOI at the Copyright Office and nobody caught them. Notwithstanding the fact that the Copyright Office chose the least transparent way to make the information available to the public. So is the address unknown NOI good notice to the world if the world can read it?
How bad is this? If there is even a 1% error rate, that is 60,000 songs. Seems like a lot to me, and I would bet that the error rate is a lot higher than 1%–courtesy of the U.S. government.
Remember this started in April 2016. No one has lifted a finger to fix it since then, but the Music Modernization Act has a new safe harbor that sweeps all these NOIs into the new blanket license without anyone ever checking to see if they were filed correctly. Given the other safe harbor–I know, the MMA has so many safe harbors for Big Tech that it’s hard to keep them straight–that protects infringers from suits for statutory damages filed after January 1, 2018, it is unlikely that anyone will ever pay the piper for this massive and industry wide screw up. A good reason for all mass NOI filings to be excluded from the MMA’s litigation safe harbor.
Or in the words of Judge Patel, “You created this monster, you fix it.”
A good place to start fixing it is by indexing all of the Copyright Office mass NOI filings and making that searchable database available to the public. There are a number of companies that indexed the address unknown filings but SoundExchange recently launched theirs. The SX Works NOI Lookup is free to use and very fast. Here’s a video describing the service.
I tried running a few queries on it to see what showed up using the top five songs from the Billboard “Hot 100” singles chart starting January 1, 2018, a date that will live in infamy.
Here’s what I found. First, we have “God’s Plan” by Drake. Remember, if the song is in the NOI lookup, the service is claiming they can’t find the song owner.
Notice that Spotify has four separate NOIs filed for “God’s Plan” and each one lists that song’s writers. Notice that Google and Amazon list the writers as “unknown”. Here’s a little speculation–the reason that both Google and Amazon list the writers as “unknown” is probably because they each got the same new release feed on the record side and did not take advantage of the songwriter information provided by the label. Or they did no matching work–notwithstanding that Google owns Content ID which very likely has all of the song ownership information already inputted for them.
Spotify on the other hand does have the songwriter information, so either they were given it by the label and passed it through or they got it from another source. It seems unlikely that they had all the songwriter information and none of the publisher information. It must be said that the labels are under no obligation to provide any publishing information much less clear the rights. This is the deal Spotify (and all the other services) made–repeatedly. So the labels can’t be blamed for the lack of songwriter or song owner information.
Here’s the NOI look up for Ed Sheeran’s “Perfect”:
Again, Spotify tends to have the writer information and Google and Amazon rely on “unknown” for a top 5 record (that also went #1). But it’s “address unknown” for all of their NOIs.
You may be wondering how it is that these writers aren’t getting paid for huge numbers of streams. I wondered that, too. But–remember that there are two ways for services to license songs: voluntary direct licenses and compulsory. Here’s some speculation: the top songs are written by songwriters who very likely have publishing deals with major publishers and major publishers very likely have direct deals with Spotify, Google, Amazon, etc. So these services don’t need to send “address unknown” NOIs in order to get a compulsory license. They already have a voluntary direct license and they probably paid a pretty penny to get it.
And notice–Apple is nowhere to be seen in these mass NOI filings.
How about Bruno Mars’ “Finesse”. Yep, address unknown:
This is getting to be a pattern, right? “Finesse” has been a top 5 single for weeks. How could they not know who to license from? At least Google lists “Bruno Mars” as the writer–good guess for the biggest search company in the known universe. Think they looked it up in Content ID? And as we saw before, Spotify lists all the writers. But no copyright owners, I guess.
So why would these Big Tech companies want to have both a compulsory license and a voluntary license? Maybe so they will be covered with a royalty free license if the voluntary license should expire for some reason?
Is it really correct for services to be able to burden the Copyright Office with these mass filings for songs that are already subject to a voluntary license? Which gives them actual knowledge of the song copyright owner?
Here’s “Rockstar” by Post Malone. Apparently, the biggest corporations in the world have no idea who owns the song.
No idea who owns “No Limit” by G-Eazy either, although both Google and Spotify know the writers.
Or Lil Pump’s “Gucci Gang”….
Or Camila Cabella’s “Havana”….
although it’s quite easy to find in ASCAP’s database….
And no joy on Imagine Dragons, either:
Or Halsey’s “Bad at Love”
So let’s get this straight. None of Google, Amazon, Spotify, or iHeart could find any of the copyright owners of any of the songs in the Top 5 for the last 7 weeks. Or are they sending “address unknown” NOIs as a matter of policy for all songs recorded in the tracks delivered to them by labels including songs already available to them under a voluntary license? Which is more likely?
In the latter case, this gives them a back up compulsory license that will continue if their voluntary license should ever expire. Or if they allow it to expire.
Are they really relying on these fake compulsory licenses and not paying royalties or accounting on songs licensed under a voluntary license? Seems hard to believe? This shortfall might be a bit hard to catch, although if you have a writer in the top 5 it does seem like something you should know and act on if you’re getting stiffed.
Or are the services paying under the voluntary licenses and just stiffing every songwriter who is outside of a voluntary license? And are they doing so retroactively for songs delivered prior to April 2016?
Now that the SX Works NOI look up is available, it really brings home the absurdity of the mass NOIs. Not to mention the absurdity of the fact that no one in Congress does anything to stop it and that Big Tech has bootstrapped this absurdity into the Music Modernization Act.