Composer Maria Schneider Files Class Action Suit Against YouTube

Grammy award-winning composer-performer Maria Schneider has filed a class-action lawsuit against YouTube and parent companies Google and Alphabet. The lawsuit is brought on behalf of independent rights holders that do not have access to the Content ID system (most of us).  As the complaint states:

Defendants Alphabet, Google, and YouTube reap billions of dollars annually from the online hosting of videos, including millions of works that infringe on the exclusive copyrights of Plaintiffs and the Class. Defendants permit and facilitate this infringement because it furthers their growth and revenue strategies and because they have determined that Plaintiffs and the Class— unlike YouTube’s preferred Content ID partners—lack the resources and leverage necessary to combat copyright infringement on the scale at which it is perpetuated on YouTube.

YouTube has consistently claimed that it protected by the DMCA safe harbor against copyright infringement lawsuits.  The complaint argues that Youtube has behaved in a manner that disqualifies the company from seeking DMCA safe harbor protection. We look forward to this playing out in court!

Read the complaint below:

Click to access maria-schneider-class-action-gov.uscourts.cand_.361906.1.0.pdf

Developing… HFA added as Defendant in Amended 8 Mile Spotify Complaint

Developing….

Amended 8 Mile v Spotify complaint adds Harry Fox Agency as a defendant.  The complaint states:

“HFA’s material contributions to and enablement of Spotify’s infringement through a joint conspiracy with Spotify to distribute fraudulent documents and misrepresentations designed to conceal and enable Spotify’s infringement of the Eight Mile Compositions.”

It continues

“2. As noted, this is, in part, an action for vicarious and contributory infringement brought by Plaintiff against HFA in connection with a scheme to conceal and materially enable Spotify’s copyright infringement by circulating knowingly fraudulent documents (e.g., untimely, and otherwise ineffective Notices of Intention to obtain compulsory mechanical licenses (“NOI’s”) that were intentionally and knowingly backdated to appear as though they were issued on a timely basis, and the fraudulent rendering of purported “royalty” statements) with knowingly false representations to Kobalt Music Services America Inc. (“Kobalt”), the entity authorized to collect royalties from licenses validly made for the Eight Mile Compositions, and to Eight Mile. As discussed herein, Kobalt is not authorized to enter into such licenses for the Eight Mile Compositions for the United States and Canada.”

You can read the entire complaint here.

97. Amended Complaint

At this time it is not known if this will affect the MLC designation of HFA as a service provider.

Open Letter to Brewster Kahle From Anonymous Librarian

Brewster Kahle

Photo Credit Joi Ito CC

We rarely publish anonymous pieces. But in this case, we felt it necessary to prevent retribution. Many major libraries and academic institutions have embarrassed themselves by endorsing Brewster Kahle’s opportunistic attempt to benefit from the COVID-19 pandemic. This is unlikely to go down well in those circles.

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To Brewster Kahle,

You claim that the statements from the Authors Guild and the Association of American Publishers concerning the National Emergency Library contain falsehoods. But the only falsehoods I can find are the ones in your statements. You are a non-profit organization claiming to be a library, but the Internet Archive has never operated as a real library- never. You chose a disarming title that disguises your real purpose. The Internet Archive collects and digitizes other people’s works and redistributes them digitally without their permission. You have been challenged legally for this and you continue to do it, in defiance of the law, knowing that authors and rightsholders object.
You claim to be a charitable organization. Charitable organizations provide money from their own funds to those in need or they collect donations of money or property, voluntarily offered by the original owners, to distribute to those in need. Taking from others despite their objections and offering the stolen material to those in need does not fall into the description of a charitable organization. It is, as has been pointed out, looting.
Your activity undermines the copyright system for your own benefit and in the financial interests of some of the wealthiest corporations in history. As has been said, the Internet Archive is not a public service but a pirate website. You are not here to help others- you are helping yourself to others’ property. It’s unfortunate that your supporters can’t admit this, or don’t realize it.
It is shameful and cruel that you pulled this stunt at a time when many people are distracted by the health crisis. These books are not yours to give away and yet you pretend to be a savior of humanity- how cheap. The claim that your project is covered by fair use is legally unsupportable. You have simply invented it, with a little help from friends whose institutions lend an aura of credibility.
It is a tragedy within a tragedy that anyone supports you in this effort to steal livelihoods away from authors who struggle to create the works that we love to read, as is evidenced by the glowing praise for the books you have taken and given away.
Brewster, you claim that the Internet Archive is a library- but do you want to know what real libraries do? They pay license fees for e-books and then allow their users to access the books. To be decent and truly human, you will apologize to the world and discontinue your grotesquely unfair challenge to authors. You will transform into something resembling a real library and provide funds to license access to these books for the benefit of the public. You have enough financial assets to pay for licenses to use these works. It has been pointed out that you have more than 100 million dollars in your Kahle-Austin Foundation. You could provide the books to the public by paying license fees to authors and publishers- that is what real libraries do.
You could do this, Brewster, and then you would get real praise, and you would be worthy of it. Both the authors and the public would benefit from your generosity. The authors are the public, too. All are in need. If you enlisted other super-wealthy Silicon Valley colleagues like yourself to pitch in as well, that would be a real gesture toward helping people in a time of crisis. It would be a genuine charity, not false charity. It would be taking responsibility.
Do you dare to make this honest effort at helping during a national emergency or will you continue to steal books while the rest of the world is distracted by a life and death crisis?

-Anonymous Librarian.

12 Questions For Boston Public Library President On “Emergency National Library” Endorsement

David Leonard is the President of Boston Public Library.  He and his library have endorsed the Internet Archive’s creation of a so-called “National Emergency Library.”  The Library will make available copies of 1.4 million books without permission or compensation to the authors. Forget the nonsense about “eliminating waitlists” that’s a not very clever way of trying to hide the fact they want to make unlimited copies of authors’ works with no permission or royalties.

My take on this is it’s an opportunist attempt by anti-copyright ideologues backed by Silicon Valley firms to exploit the COVID-19 crisis.  It honestly makes me sick to my stomach that Americans would treat their fellow countrymen this way in a crisis.  However, I am not surprised.  The Internet Archive has long been Google’s lapdog. Shameless corporate shills, no one should be surprised to discover they are disgusting opportunists. Brewster Kahle the founder of the Internet Archive is just another Silicon Calley scammer, posing as a selfless warrior for the public good. Meanwhile, he is sitting on over 100 million dollars in his related Kahle-Austin Foundation. Who gave him that much money? What on earth did he do to make himself that rich? I mean aside from policy washing for Silicon Valley billionaires.

However I was frankly surprised to see Boston Public Library President David Leonard sign on to support this dubious endeavor.  I’ve had a couple email conversations with him, and although I don’t agree with many of his copyright positions, I found him intelligent and willing to engage in a polite manner.  He doesn’t seem like the kind of person that would get involved in this sort of sketchy policy washing by Silicon Valley elite.  Nor does he seem like the type of person to exploit a crisis the way the Brewster Kahle might.  Perhaps I’m missing something here. Therefore I have chosen to direct my questions about the “Emergency National Library” to Mr. Leonard as he has been reliable and helpful in the past.

Questions for David Leonard President of Boston Public Library

Q1. How is this fair use? It seems to fail on all four elements.  The entire work is copied. HIghly unique fictional works copied. It competes directly with/is identical to commercially licensed royalty generating services.  Technically Internet Archive is a non-profit but in 2017 it took in 17 million in grants and donations. Board members receive six-figure salaries. The closely related Kahle Austin Foundation is sitting on $109 million dollars. Hardly a neighborhood branch library or storefront church. 

A.?

Q2. If you believe that distributing these authors’ books without permission and compensation is “fair use” why doesn’t the Boston Public Library directly digitally distribute these books instead of relying on the Internet Archive?  Is this a sign that the Boston Public Libary finds the fair use claim dubious and wants to avoid litigation?

A.?

Q3. The statement makes the argument that the “National Emergency Library” is fair use because this is a national emergency. The statement proposes a time limit on how long this permissionless royalty-free lending will go on further emphasizing this is “temporary” fair use.  Under US copyright law or jurisprudence, how does something become fair use in an emergency when it is not normally fair use? 

A.?

Q.4 If this is legitimate fair use why are authors allowed to opt-out?  Again why shouldn’t we read this as an admission this is a dubious and opportunistic endeavor likely to end in litigation?

A.?

Q.4 If most poor students are unlikely to have high-speed internet access at home how does this help them? Doesn’t this disproportionately benefit wealthier families?

A.?

Q.5 Are you personally still receiving a salary from Boston Public Library during this crisis? It seems to me most people who signed the letter are probably still receiving their salary. Why should authors that on average make $20k a year be forced to carry the entire financial burden of the National Emergency Library? To show good faith would you agree to forgo say 1/2 your salary till this crisis is over?

A.?

Q.6 Fair use is a North American only legal concept.  With a few exceptions, it is not an available defense in the rest of the world. We tested the National Emergency Library in a number of jurisdictions. It appears to be available globally. How is the library legal in say Germany, Japan, Sweden or France?  By endorsing, publicizing and linking to it aren’t you breaking the law in many of these countries?

A.?

Q.7 Have you or any of the cosigners considered you are advocating the violation of a number of our obligations under intellectual property and trade treaties?  Ultimately the US taxpayer or US businesses would end up paying the penalties (See penalties applied to the US for Fairness in Music Licensing Act). How is that fair?

A.?

Q.8 The 2008 Higher Education Opportunity Act puts strict obligations on institutions that receive federal financial aid to actively discourage copyright infringement.  Now it seems we have dozens of university libraries seemingly encouraging copyright infringement.  Do you think this is wise? Some jackass like me could file a complaint with the Department of Education that they would be obliged to investigate.  Thoughts?

A.?

Q.9 How committed to this cause are you? Will, you use city resources to defend Internet Archive in the event of legal action by authors?  For instance by filing amici curiae? If so how will Boston or Massachuesettes taxpayers benefit? 

A.?

Q.10  Will BPL receive stimulus funds from the federal government? If so will you be devoting any of these funds to help poor students without access to books? Can you detail these efforts? Show authors you are just as committed to spending your funds as you are to giving away their work? 

A.?

Q.11  Professor Devlin Hartline at GMU Law commented on twitter that Internet Archive is “literally committing criminal copyright infringement under Section 506(a)(1)(B).”  He tweeted that at the DOJ. Hartline is not a bomb-thrower like me.  He’s normally pretty reserved.  Does this give you pause? Does this make you rethink your endorsement? 

A?

Q.12 It’s obvious that this campaign and document were professionally organized. Can you tell us who led this effort? Who came up with the idea? 

A?

We hope to hear from you soon.  We will publish your reply completely unedited.  Thanks for indulging us.

 

 

 

 

 

 

 

 

 

Guest Post Blake Morgan: The battle is upon us, but we will not give up

Reprinting Blake Morgan’s inspirational social media post from earlier today:
To my sisters and brothers in NYC music, and beyond…
The Irish tell the story of a man who arrives at the gates of heaven asking to be let in, and Saint Peter says, “Of course! Just show us your scars.” The man says, “But…I have no scars,” and Saint Peter answers, “What a pity. Was there nothing worth fighting for?”
We musicians are used to fighting. For our livelihoods, for our families, for our hopes and dreams, for our calling. For our profession.
In recent years we’ve fought battles we’ve neither sought nor provoked. Battles against powerful corporate forces attempting to devalue music’s worth, streaming companies attempting to lower our micro-penny payments even further, and AM/FM radio which, in the Untied States, makes billions of dollars each year off of our music while paying nothing––zero––to artists for radio airplay.
But now we face a different battle.
Musicians’ road ahead is narrowing because of the crisis of the present. However challenging the future of my profession would have been without the current pandemic, it’s becoming clear now that for music, the future isn’t what it used to be.
Like so many in this country and around the world, we’re facing economic hardships, uncertainty, and danger. Unlike so many others, musicians are facing the tomorrows to come without health insurance, without eligibility for unemployment insurance, without any savings, without any system of fallbacks. Without a way to bounce back. Our “gig economy” has failed to bolster the already-weakened financial options of working musicians.
We will have to fight like never before, in a landscape which––even once this immediate health crisis subsides––we may not even recognize.
The battle is upon us, but we will not give up.
We will not give out.
We will not give in.
We will hold fast. To each other, and to ourselves.
We will light the torches of our inspiration, and we’ll meet these challenges with determination.
And years from now, should someone ask how we got these well-won scars, we’ll say, “From fighting.”
#IRespectMusic

Mass Infringer TikTok Should Not Be Eligible For Compulsory Mechanical License


The Financial Times reports that the parent of mass copyright infringer* TikTok plans to launch a streaming service:

The Chinese company behind the popular video app TikTok is set to go head-to-head with the likes of Spotify and Apple in the music streaming market with the launch of its own rival service.

ByteDance is in talks with the world’s largest record companies — Universal Music, Sony Music and Warner Music — for global licensing deals to include their songs on its new music subscription service, according to people familiar with the matter.

Oh really.  So let me get this straight.  Executives at the major music conglomerates have largely sat on their hands while TikTok/Bytedance has engaged in a pattern of willful mass copyright infringement  against songwriters, and now are gonna help TikTok/Bytedance launch a streaming service? Not if I can help it.

Starting in 2021 all streaming services will get a streaming mechanical license through the Copyright Office/MLC.  Regulations that govern the federal compulsory mechanical license already forbid mechanical licenses on unlicensed recordings. This was originally designed to keep old school bootleggers from taking advantage of the federal license. In my opinion, regulations should be updated to prevent mass digital infringers like TikTok from using the compulsory license.  Obviously, the copyright office would have to distinguish between a company that might “incidentally” infringe on a limited number of songs and a company like TikTok that apparently has no licenses at all for compositions, knows this, and refuses to license. But it’s not impossible.

The Copyright Office should be required to conduct a review or at least hold a public hearing before they allow a  company to take advantage of the federal compulsory license. Why? If the federal government is going to take away songwriters individual right to license their work, the feds should make sure they aren’t, in turn, licensing to scofflaws, scammers, and criminals. Seems sensible right? Further, I caution against farming out this process to the MLC as they have already demonstrated they are not keen on transparency or oversight. The revolving door between big publishers that dominate the MLC and digital services invites corruption and cronyism. The Copyright Office should make sure that independent writers are not forced to license to a company ripped them off in the past.

Failing to vet licensees will create an extreme moral hazard for the copyright office.  Licensing willful mass infringers would effectively make the copyright office complicit in money laundering, as a company like TikTok could take dirty money from infringing activities and effectively wash it by creating a licensed service. My hope is the Copyright Office address this matter in the next few weeks.

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*There is a false narrative going around the music business that TikTok only infringes because they host User Generated Content. Thus it is protected from claims of infringement by the DMCA safe harbor.  This is absolutely not true.  Spend some time with the app and verify this, but in short, it clearly offers “sounds” to users to use in their videos. These sounds do not come from the users’ devices. They come over the network connection via the TikTok app. (Distribution! exclusive right 3)  Next It makes copies of those sounds on the users’ devices. (Copies! exclusive right 1). Users are not copying and distributing.  TikTok is. Thus like Grooveshark, it does not get the benefit of the DMCA safe harbor. It has now hired some of the smartest music licensing lawyers in the world. Yet  TikTok knowingly and wilfully continues to commit mass copyright infringement. WTF? If I was a lawyer working at TikTok? I would make sure I can pay my mortgage without a law license!

Bad Look for @TikTok_us and Labels as Key Label Licensing Executives Switch Sides

Paper Shredder

We are definitely not implying that anyone has done anything wrong.  We just really like this picture of a document shredder. 

TikTok is a Chinese state-controlled company and one of the largest music platforms in the world. Yet according to multiple sources in the music industry, most of the songs they offer to their users are not licensed. I can personally confirm that TikTok distributes at least 2 dozen of my copyrights for which they have no license.

TikTok has also found itself in a lot of hot water over accusations it illegally harvesting data from its users and is effectively a spying operation for the Chinese government.  The US Army was so concerned about this possibility it recently ordered personnel to delete the app from their smartphones. The secretive Committee For Foreign Investment in the United States (CFIUS) has launched an investigation into the purchase of musical.ly by TikTok’s parent Bytedance and security researchers have exhaustively documented the TikTok app’s intrusive and bizarre behavior.

This is why it’s especially troubling that a number of major label licensing executives are now working for TikTok after negotiating very limited licenses for their old labels. This is not a great look. Artists and songwriters can honestly wonder if their works were sold on the cheap by executives looking for a better paying tech job. To be clear I’m not saying there was commercial bribery, but I wouldn’t be surprised if potential investors, bankers (WMG and UMG are promising IPOs), or even CFIUS ask for communications between former licensing executives and TikTok just to make sure there was no hanky panky.  Remember we are talking about a Chinese state-directed firm engaged in ongoing theft of US intellectual property. Remember anyone can ask for an investigation. I have a feeling this will eventually get someone’s attention…

Sadly for the major labels, this comes after they fought to overcome artist suspicions that labels (and managers) traded lower royalties for Spotify equity.  To counteract these suspicions labels went out of their way to distribute profits from the Spotify IPO to artists on a pro-rata per-stream basis. (Curiously managers did not-Editor.) Will these high profile executive defections to the music industry’s biggest licensing scofflaw undo the goodwill (dearly) purchased with that Spotify IPO distribution? We shall see.

 

Who Is George Johnson? And Why Every Songwriter Should Thank Him

 

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.

2020-02-04 Final REPLY Brief from 2019-12-12 USCA 19-1028 George Johnson v. LOC to PRINT 2020 Grey w (J.A.) PRINT BEST STAMPED

 

 

RIP Scott Timberg and GoFundMe Page

(cross-post from Artists Rights Watch).

We were devastated to hear of the death of Scott Timberg, a good friend of the artist rights movement and gifted writer.  His most recent work the definitive Culture Crash: The Killing of the Creative Class will be a vital resource for advocates for many years to come.

A GoFundMe memorial and college fund page was set up by David Dailey for Scott’s wife and son.  We urge everyone to contribute something however small.

Questions for MLC on Streaming Mechanicals and Asteroid Mining Colonies.

We noted with some excitement last week that the new federal Music Licensing Collective has hired ConsenSys an Ethereum blockchain based ecosystem that also owns an asteroid mining subsidiary.

This is surely a sign the MLC is finally making plans for collecting streaming mechanicals from streaming services that serve extra-planetary mining colonies.

However there are many questions that remain unanswered. For instance while rules and laws that apply to US flagged aircraft and ocean vessels could be a guide, copyright laws that govern interactive streaming have never been tested in space beyond Earth orbit.

While it is likely that the MLC would have authority to license and collect streaming mechanical royalties on US flagged spaceships it’s not clear that privately owned mining facilities in the asteroid belt would be subject to US copyright law. Especially if the asteroid based mining facilities are owned by corporations headquartered in nations other than the US.

Then there is the matter of location of servers. Spotify, Apple Music and Tidal would be unlikely to stream songs from earth as wireless signals would take more than 30 minutes each way. While pause and rewind would not be problematic for the user, switching to an entirely different playlist or new album would require a long wait because of the hour plus round trip to Earth.

So clearly streaming services would require servers be located at the off-world mining facilities.

If the mining company is owned by a US headquartered company then one could reasonably argue US Copyright law applies. Relatively simple.

However, one must also consider the cost of shipping a single server into space. Extrapolating from cost of putting the slimmest 8 pound server into LEO (low earth orbit) it would cost approximately 170 million dollars to put a single server into an asteroid mining colony in the asteroid belt between Mars and Jupiter. Most off-world mining would be highly automated so mining colonies would have relatively low human populations. Thus yearly subscription fees for users would be in the $400,000 – $600,000 range. A family plan would be in the $600,000-$900,000 range.

It’s unlikely asteroid mining colonies could offer an ad supported tier as mining colony dining facilities or escort services would have no need to advertise as they would have no competition. Similar to military bases remote private mining companies typically grant monopolies in each service category.

There is however a silver lining: with only two streaming tiers, the All-in Pool and Total Payable Pool would be easier to calculate.

What about deductions from the All-In Pool for PRO payments in off world mining colonies?

This brings up an interesting side question. Is there a public performance royalty due on performances of music in a private asteroid mining camp? Are these facilities public or private? ASCAP, BMI and SESAC should start to think about this if they want to keep ahead of GMR as there are rumors GMR is already working on an off-world unitary direct license.

Of course everything becomes infinitely more complex if for instance miners in a US headquartered private mining camp subscribe to a streaming service based at a Shanghai headquartered private mining camp on an nearby asteroid. This is not improbable. As long as the orbits of the two asteroids were sufficiently stable this could be accomplished with a commercial grade WiFi router or a long CAT 5 cable.

In this situation it’s impossible to say if the MLC would have any authority to administer mechanical royalties. It’s likely an international agreement would need to be negotiated.

Or ConsenSys’ blockchain platform Ethereum could fix all this. And then we don’t have to worry about anything. Cause that’s what we’ve heard it does. It’s a solution for a lot of things. It’s just no one can really explain how it solves problems that you can already solve with an Excel spreadsheet and a few macros.

But it is a shiny new technology and a lot of money launderers and international criminal gangs prefer the technology so it has a sort of “cultural fit” with many of the music executives, personal managers and self appointed representatives of songwriters.

So how would we implement access to a blockchain distributed global music rights database in a remote asteroid mining facility? It is not clear but we do know that the current global Ethereum blockchain network can process 2400 transactions a minute, a node in a remote asteroid mining camp using only 50% of all available earthbound satellite bandwidth could probably process one database change a week. That’s assuming 40% of the robot labor could be diverted to process the transaction. Also some of the mining colony’s life support systems would need to be temporarily suspended using a “rolling blackout” system, but loss of life is expected to be minimal.