DOJ Workshop on Free Market for Music Licensing Lacks Free Market of Voices

The Antitrust Division of the Department of Justice has announced the speakers for a series of public–but not too public please—workshops regarding the competition in licensing  music public performance rights.  Inevitably, this means a discussion of the ASCAP and BMI consent decrees.  So why wouldn’t you want to be as inclusive as possible in a discussion about free market competition?  Doesn’t the free market start with the free market of ideas?

Let’s be clear—as a general proposition, we despise these ancient consent decrees.  There’s a very simple reason for that view:  The consent decrees are like original sin visited upon the unborn.

We’re fully prepared to believe that some paper pusher pensioner at ASCAP overreached at some point in the distant past, just like paper pusher pensioners overreached with The MLC (another story, but a fine example of government run amok).  People at ASCAP no doubt deserved punishment in 1941 (but the offenders no doubt kept their salaries and their pensions unlike the songwriters whose catalogs they mishandled).  Instead of going after the individuals at ASCAP who broke the law, the government punished generations of songwriters, including those who were not even born yet  The fundamental question is should the later generations of songwriters be denied due process because of something some nebbish did in the 1940s?

We think not.  Yet what we have seen happen for generations is that all those who benefit from the administrative state created by the consent decrees want to keep it going.  Like the cockroaches who survive nuclear holocaust, the destructive effects for songwriters matters little to these people as long as they get their salaries, bonuses and pensions unlike the songwriters they purport to represent.  Because let’s remember—it wasn’t the songwriters who caused the problem.  And if you want to fix the anticompetitive problem, just make it the personal responsibility of whichever bureaucrat messed up, not the organization and certainly not the songwriters.  You won’t hear that idea from anyone on the DOJ’s panels.

In other words, whichever executive caused the problem in 1941 mishandled their responsibilities to the songwriters they were allowed to represent, and they are still doing it today.  Nothing much has changed.  And you know what else hasn’t changed?  They are still collecting their salaries, bonuses and pensions.  Songwriters still have the government’s boot on their throats with judges still trying to conjure up “market rates” where a free market doesn’t exist.  The free market hasn’t existed for so long and technology has changed so much you could say a free market never has existed and all of this is a kafka-esque charade.

The point being—the Justice Department is on the right track in reviewing the consent decrees to absolve songwriters of the original sin.  The push back DOJ is getting from the administrative state that has sprung up around the consent decrees should not be surprising.  The transaction costs to songwriters are astronomical given the full employment for lawyers, accountants and experts required by rate setting under the consent decrees, all of whom no doubt make more from administering the consent decrees that over 50% (at least) of songwriters will ever make from royalties under the consent decree rate setting.

Case in point from Zoë Keating who will be watching the DOJ panels:

Zoe ASCAP

It’s for reasons like this that we look askance at the PRO’s braying about their collections and distributions.  If they distribute $1 billion, we ask, how much did you cost the songwriters in hidden transaction costs for compliance (you know, like an unfunded mandate)?  How much money did you miss in your porous collection system?

Another example:  YouTube fails to pay songwriters for score or licensed music embedded in user-generated clips that the DMCA permits but does not provide guidance for (the related administrative state two aisles over in the “Safe Harbor” department).  This is the DOJ’s consent decree at work with the equally pernicious DMCA safe harbor.  Is anyone going to raise this issue?  I doubt it.  Why should they?  DOJ has the government’s boot on the songwriters neck and the administrative state has their boot on the songwriter’s wallet.

Will these issues come up on the DOJ panels?  Not from the line up of speakers that the lobbyists picked for the Antitrust Division’s public workshop.  Those speakers will present a very tightly messaged order of battle to preserve the administrative state, their jobs, their bonuses and their pensions.

Another case in point is the movie theater exception. Unlike most of the rest of the major economies, movie theaters in the US do not pay songwriters and composers public performance royalties.  This is the result of another ancient DOJ settlement that unfairly constrains income for composers and songwriters.

Let’s be very clear about movie theaters—what is about to happen due to the “COVID Consolidation” is that the streaming services are going to start buying theater chains.  It’s already started with Netfix buying the Paris Theater in New York and the Egyptian Theater in Los Angeles, and analysts are anticipating Amazon would tie movie theater tickets to its Amazon Prime subscriptions, using content as yet another loss leader that drives down value of music and movies. Once that happens the antitrust consent decrees will be protecting the monopolies from songwriters.  Does this seem completely ass-backwards to anyone else?

As the Society of Composers and Lyricists and the Songwriters Guild of America noted in their comments to DOJ:

[T]he principle “evidence” offered by the [National Association of Theater Owners in support of stiffing songwriters and composers] was, in fact, a forty-five year old case in which a mid-level employee of a third-party music licensing agent testified that she thought the forced combining of synchronization and movie theater performing rights was not an obstacle to her productivity. Citing CBS v. ASCAP, 400 F. Supp. 737, 760 (S.D.N.Y. 1975), the movie theater trade group stated:

In CBS, Albert Berman, managing director of the Harry Fox Agency, Inc. and Marion Mingle, the Fox employee who handled music rights, gave testimony describing the simple process they use to license both synchronization and performing rights for use in a theatrical motion picture—which can be completed roughly simultaneously most of the time. Mingle and her assistant were able to license “several hundred movies each year” this way.

Much has changed in the past half-century in regard to the licensing of musical works in films, but both SGA and SCL have little doubt one aspect of the process has not evolved in favor of music creators since the days of Ms. Mingle: that the Movie Theater Exemption has by default artificially relegated the value of US performing rights in motion pictures exhibited in US movie houses to at or near zero.

There is no good reason why the consent decrees ever needed to reach movie theaters as far as songwriters are concerned.  We see only one reason why anyone wants that travesty to continue.  As was widely reported at the time, streaming services—and theater owners—like Netflix got caught trying to jam buyouts of performance rights down the throats of composers:

At the end of October [2019], close to 90 composers and songwriters from around the world traveled to Budapest to discuss a contentious issue: streaming services’ efforts to upend how composers are compensated for their work.

Headlining the two-day International Council of Music Creators (CIAM) General Assembly was top Netflix music lawyer Carolyn Javier, who sought to defuse composers’ concerns over licensing contracts, known as buyouts, in which the streaming service pays them a one-time fee for all or most of the rights to their work, precluding them from receiving any backend royalties in the future. It has long been standard procedure for composers to be paid royalties for their compositions each time one is performed in a public setting: on the stage, at a bar, in a network TV or cable series, and now in audiovisual content streaming worldwide.

It’s obvious that if streaming services negotiate a buyout of performance rights for the music in their shows, it will apply across the board to the theaters they own.  This gives them added protection just in case the movie theater exception should go away.

We believe this is exactly the plan that these Big Tech companies have in mind.  Of course, if the DOJ had invited the CIAM—or its US affiliate Music Creators North America of which both the Society of Composers and Lyricists and the Songwriters Guild of America are members—then the Division might have had the opportunity to hear this side of the story directly from the songwriters and composers most directly affected by the shortcomings of the pensioners.

Motion picture and television composers are overrepresented in performance royalty earnings.  By any estimates, a significant chunk of performance royalties are earned by these craftsmen and they are directly affected—almost exclusively—by the movie theater exception which the PRO pensioneers blithely give away.  It is shocking that the DOJ has not included at least the Society of Composers and Lyricists in the not too public workshops, but it is not surprising—industry lobbyists have systematically excluded both the SCL and the Songwriters Guild of America from such hearings.  Whenever we see the lineup of songwriter groups present at the not too public workshops, we know exactly how they came to be selected.  It was not based on merit or representation.

You have to appreciate the irony of an anticompetitive suppression of voices by dominant forces being used to explore whether the consent decrees promote competition in the free market.

We can’t even have a free market of ideas to talk about the free market for songwriters.

 

 

 

An Open Letter to PEN Regarding Matt Bailey’s Anti-Artist, Anti-Copyright Blog

An open letter on PEN’s publication of Matt Bailey’s article containing anti-copyright positions.

Dear PEN–
As musical artists who have been forced to defend our livelihoods from Silicon Valley’s relentless attacks on our rights; and as supporters of PEN’s positive action in so many other areas; we were shocked that PEN chose to publish Matt Bailey’s “Three Big Discussions We Need to Have ASAP About AI and Social Media Moderation.”7/8/2020

Mr. Bailey’s discussion of free speech issues in policing the ideological content of online posts is welcome. His conflation of this issue with copyright infringement is irrational and harmful: the overwhelming majority of copyright-infringing files are 100% identical copies of commercially available music, film, or writing.
This is not the exercise of “free speech”, and the technology to regulate such infringement is 100% blind to the ideological content of the files.

The gutting of the market that has resulted from this mass infringement has chilled more free speech— simply by defunding and devaluing it— than any censor, human or AI, possibly could. [See this article by Neil Turkewitz].
The Tech corporate narrative represented in Mr. Bailey’s article– positing copyright as the enemy of free speech– is contrary to our own experience, the positions of virtually all major representative groups of musical artists*, filmmakers**, PEN’s other positions, and the interests of all writers.

We urge you to remove or edit Mr. Bailey’s anti-artist, anti-writer, anti-copyright article.

Sincerely, M Ribot

Co-signers,
Ben Bierman
Ken Hatfield

Olympia Kazi
David Lowery
John McCrea

*see the Music Community Response to the U.S. Copyright Offices Inquiry on Section 512 of the Digital Millennium Copyright Act.
**see Creative Future.

MLC Requires Songwriters to Polish HFA Data Turd

As a result of the passage of the 2018 Music Modernization act the federally designated Music Licensing Collective (MLC) will take over licensing, collecting and paying mechanical royalties from streaming services to songwriters January 2021.  Previously these duties and services were performed by a variety private companies.  One of the goals of the MMA was to streamline the process so that songwriters would benefit from increased efficiency and lower overhead. Incredibly the MLC appears to be establishing a system that will be less accurate and less efficient than the bad old system.  Essentially it is an additional $60 million dollar layer of bureaucracy sitting atop the old system with many of the old players now hired as “vendors.”

But it gets worse…

It has now become apparent that the MLC plan for building a global database of songs and songwriter/publisher splits is this:

  1. Ingest the shitty Harry Fox Agency data that was at the heart of the  many lawsuits against streaming services.
  2. Do NOT allow songwriters to view this data.
  3. Instead, ask songwriters to manually submit an Excel spreadsheet for each individual song. 
  4. The MLC will (manually?)check this data against their shitty HFA data.
  5. And then in the event of conflict…. <crickets>

How bad is the data?  I can only go by my catalog but nearly every song I co-wrote with another writer does not have the proper writer splits.  This despite the fact the I am an affiliated HFA writer/publisher and I gave them the splits when I signed up.  Look below.  My co-writers shares are listed as  “copyright control.”  What does that even mean? Where does that money go?

I think a fair reading of this is “MLC forces songwriters to fix bad data they are buying from HFA.”  So if songwriters are fixing the data, and the MLC is buying data from HFA, what exactly do all those highly paid music executives at the MLC do for the $60 Million?  Asteroid mining?

 

More Bullshit From Nashville Songwriters Association on Consent Decrees

A Nashville songwriter forwarded an email from the Nashville Songwriters Association International (NSAI). It concerns the oppressive and likely unconstitutional consent decrees that allow a single judge to (arbitrarily) set songwriter public performance organization royalties. For years the NSAI has claimed to oppose the consent decrees.  Now that the DOJ is seriously considering eliminating the decrees and thus let the market dictate the rates, the NSAI has suddenly decided they like the consent decrees!

“After months and months “reviewing” the ASCAP and BMI consent decrees, the U.S. Department of Justice Anti-Trust Division may be winding toward final recommendations on the antiquated decrees imposed during World War II! NSAI, for years an advocate for eliminating or making radical changes in the decrees, took a different position after Congress adopted the Music Modernization Act (MMA) in 2018. The most important changes we wanted to the decrees were made in the MMA. Those were changes as to how the ASCAP and BMI rate courts set digital performance royalties. Now that those judges are required to approximate market value royalties, NSAI has advocated NOT to completely eliminate the decrees.”

Most organizations that purport to represent artists and songwriters are run by folks who are not the sharpest tools in the shed. Thus we’ve seen some stunningly stupid decisions by similar organizations. But this is the stupidest ever.  Why do we need judges to approximate the market value of our songs? And how will they do that? There hasn’t been a free market for performance royalties since WWII.  If the DOJ is willing to let songwriter organizations out of the consent decrees, why don’t we just get out of the consent decrees and let a true “willing seller/willing buyer” market set rate? No approximation needed. Why would an organization that purports to represent songwriters essentially give away songwriters’ fundamental right to price their songs? I am dumbfounded.

To be fair NSAI has an answer. Sort of.

“We instead want to first see how the new rules impact songwriter royalty payments AND because of concern Congress might undo all of the gains from the MMA when they replace the decrees with new copyright laws.”

Oh, I see. Congress has readied some legislation to replace the ad hoc consent decrees with new copyright laws.  And these new laws *might* roll back gains made in the Music Modernization Act.

Bart Herbison is the Executive Director of the NSAI. I assume he wrote or approved the above email. This is so important I want to address him directly now.

Bart:

What the fuck are you smoking? There is no pending legislation. I asked everyone.  DUDE, YOU CAN’T JUST MAKE SHIT UP. This is the most misleading shit ever. What kind of EO of a membership organization makes shit up to scare their members into limiting their rights?

Alright. Maybe that’s too harsh. Maybe what you meant to say is that “eliminating the consent decrees will possibly cause broadcasters to introduce copyright legislation that would gut songwriter pay to benefit some of the most hated corporations in America.”

In the middle of a pandemic.

In the worst financial crisis since the great depression.

I’d like to see them try.

JFC man you are supposed to fight for songwriters. Yet you seem afraid of that fight?  This is your fucking job man. This is what you signed up for. If you can’t do that you need to give up your $275,000 a year salary.  Step aside.  Let a real songwriter advocate run the organization. Songwriters don’t need any more quislings.

 

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!