George Johnson is not a household name but he’s one of my heroes. If you are a songwriter you probably should pay attention to what this scrappy indie songwriter is doing. He may end up being a hero to you as well. The screen capture above says it all. One lone songwriter against the US federal government, Amazon, Google, Pandora, Spotify, The National Music Publishers Association (NMPA) and Nashville Songwriters Association International (NSAI).
Wait, isn’t NMPA and NSAI on our side? I mean they represent copyright holders and songwriters? Why are they “intervening” against George and alongside the digital services? Well, that’s a damn good question. If you ask the music publishing good ole boys/girls/x in Nashville, LA, and NY, George is some kind of songwriter zealot a crank or hopeless idealist. But is he? He makes a pretty good argument that the Copyright Royalty Judges, digital services, publishers and NSAI have made an illegal (and likely unconstitutional) deal in the most recent mechanical royalty rate hearings.
George has zeroed in on something publishers, performing rights organization and (purported) songwriter associations don’t want you to know: They agreed to a $0.00 royalty rate for songwriters on free trials and “promotional” streaming, with the latter defined as an offering “for which the service receives no monetary consideration” (CFR 385.31 b). Since YouTube and other digital services are primarily in the business of amassing data on you to help them later serve you ads, that is clearly a loophole big enough to drive a Mack truck through.
Here’s where George is 100% right. The Copyright Royalty Board is required by law to set “reasonable rates.” Zero is not a reasonable rate because it’s not a rate at all. Nor is it an “equitable division of profits” as required. There is no “division of profits” if one side is getting zero. As George so eloquently notes:
In 2013, Pandora had paid 14 executives approximately a half-a- billion dollars ($500 million) in stock options and bonuses, but argued that the company was losing money, then insisted that they would go out of business, or be “disrupted” if the zero-cent royalty rate was raised. Is it an equitable division of profits between the 7,446,327 million- dollars a year Pandora CEO Tim Westergren [J.A. A604, GEO Ex. 4079] is still taking from the company compared to the $.000 cents Pandora still “pays” each songwriter — transferring the value of songwriter copyrights to him and top Pandora executives? $42,503,792 million dollars to be exact for the fiscal year 2018.
“…nor shall private property be taken for public use, without just compensation.”- Excerpt Fifth Amendment US Constitution.
Finally, it doesn’t take a genius to notice zero is clearly an unconstitutional taking. Something of value is taken by the government, given to a third party without any compensation. Zero is impossible to read as just compensation. Slam dunk.
The smartest folks in the room, are once again proven to be total fucking idiots. The NMPA and NSAI have abandoned all pretense of looking out for songwriters and publishers. But really that’s okay. They also made it incredibly easy for a handful of “cranky” songwriters to turn this into a constitutional challenge.
Read George’s Filing here.