I’m posting my letter to the Copyright Royalty Judges about the Mechanical Licensing Collective “voluntary settlement” with the DLC.  It may be voluntary for some people, but it was negotiated after shutting out everyone else from the negotiation on a technicality. Trichordist readers will probably be very interested in the issues and may want to send their own complaint to the Judges.

After delays for over a year that scared off any competition (whether or not intentionally), now they want to jam it through the Copyright Royalty Judges without a public comment from the people that will be most affected.  Bad move because the public will comment anyway.

I call bullshit.  Plus an astonishing attempt to deny the Judges the legitimate opportunity to hear new ideas that they might want to take into account in their decision.  It is THEIR decision after all.  We are not governed by unaccountable lobbyists.

You may have heard that the MLC and DLC have decided on how much the rich guys are going to pay the songwriters after forcing out any independent songwriter groups from having a voice in the “proceeding”.  That maneuver prevented the Copyright Royalty Judges from hearing from independent songwriters and of course startups were nowhere to be seen, no doubt scared to death from challenging the big boys who can snap their hopes like twigs. (That is an old story.  Remember the Microsoft anonymous amici who were too scared to reveal their identities to complain about Microsoft’s anticompetitive business practices?(

The Judges, who are supposed to now bless the settlement and turn it into law, have one more chance to hear from songwriters, publishers, and startups who will have to live with this thing. 

The Judges have the power to open the settlement to public comment so the Judges may take into account any views from songwriters and startups brave enough to challenge their “betters” before they rule on the closed door settlement.  We all know they will hear from us after, particularly since the settlement just happened to get announced before the December 9 “reply comment” deadline for the Copyright Office’s proposed rules on the MLC.  It would be best to send your comments on the settlement directly to the Copyright Royalty Judges at Crb@loc.gov since the Judges, not the Copyright Office, have the power to change the settlement for good cause and fundamental fairness.

Here is my letter to the Judges:

David C. Lowery

Dear Copyright Royalty Judges:

I have read the proposed settlement reached by the MLC and the DLC that was posted on the CRB site. Without commenting on the substance of the settlement, which has many, many holes, I respectfully wish to call the Judges attention to one particular section:

Adoption of the Settlement by the Copyright Royalty Judges

Pursuant to 17 U.S.C. § 115(d)(7)(D)(v):

In lieu of reaching their own determination based on evaluation of relevant data, the Copyright Royalty Judges shall approve and adopt a negotiated agreement to establish the amount and terms of the administrative assessment that has been agreed to by the mechanical licensing collective and the digital licensee coordinator… except that the Copyright Royalty Judges shall have the discretion to reject any such agreement for good cause shown. An administrative assessment adopted under this clause shall apply to all digital music providers and significant nonblanket licensees engaged in covered activities during the period the administrative assessment is in effect.

Importantly, the settlement of this Proceeding is not subject to public comment. See id. (noting that the Participants are the parties that have to agree to settle this Proceeding); see also 37 CFR § 355.4(c)(4) (outlining procedure by which only other participants, and no others, may file comments on a proposed settlement within five days of the filing of a proposed settlement); Order Granting Joint Motion to Modify the Case Scheduling Order (setting the schedule for non-settling participants, and no others, to comment on any proposed settlement). The Participants are pleased to have reached the Settlement, which meets the statutory requirements of Section 115(d)(7)(D) for the initial Administrative Assessment.

This is outrageous.

First of all, I’m not a lawyer but when I read the authority these people cite for barring comments from the people who have to deal with the consequences of what they have negotiated, I don’t think the Judges are prohibited from taking comments from the public on the settlement. In fact, I find this paragraph to be extraordinarily self serving and makes me ask who do these people think they are?

The Judges should take into account that no startup has been present or able to negotiate the many burdens placed on them by this settlement. In particular, they have not been able to be heard by the Judges on the scope of these financial burdens that their competitors—some of the richest multinational corporations in history—have unilaterally decided to place on them with no push back.

This isn’t to say that any would be brave enough to come forward and challenge their betters if given a chance. But they should at least be given a chance.

Plus, the Judges need only take notice of some of the comments filed by songwriter organizations with the Copyright Office (Docket COLC-2019-0002) to read for themselves that many songwriters do not feel they have been represented in this proceeding. If that is not “good cause shown,” I don’t know what is.

Respectfully, I think it would be a grave, grave mistake and an unfixable miscarriage of justice, to deny the public the opportunity to comment on this settlement. Because the public will comment, maybe not in the proceeding but comment they will and for a very long time.

I hope the Judges will not miss this opportunity to exercise their legitimate oversight role for both the DLC and the MLC.

Sincerely,

David C. Lowery