§ 8(a)The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.

The federal government through the combination of “temporary” 70 year old consent decrees and compulsory licenses has drastically limited songwriters rights and effectively collectivized all songs.  A few songwriters until recently had managed to escape these overbearing limitations on rights by joining PROs other than BMI and ASCAP.  But last week a former Google lawyer at the DOJ anti-trust division against the recommendation of the US Copyright Office rammed through a 100% licensing rule that effectively brings the last of the “free” songwriters under the consent decree.

There was no due process.

There were no new laws passed.

The last free songwriters did not consent to having their constitutional rights limited.

This was done apparently at the whim of a single unelected federal bureaucrat.   All songwriters are now subject to the consent decrees.  This is effectively a bill of attainder against all songwriters.   These kinds of governmental actions upset our founding fathers greatly.  For this reason they expressly forbid the practice under  Article One Section 9 of the US Constitution.

Are songwriters some sort of existential threat to our way of life here in the US?   Doesn’t it seems like the Department of Justice has more important things to do? Surely making it cheap and easy for a few politically connected corporations to license music should not be at the top of the list.

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As a result of this action the  federal government now effectively fixes prices and compels ALL songwriters to license for the following uses:

AM/FM Radio

Television Broadcast

Public Radio

Public Television

Satellite Radio

Cable TV

Digital Music Channels

Websites

Non-Interactive Streaming (ex Pandora etc)

Interactive Streaming (ex Spotify)

YouTube/Online Video

Netflix, HBOGO etc

Digital Downloads (Google Play, iTunes Store)

CDs

Vinyl

Cassettes

Cover songs

Ringtones

Ringbacks

Mastertones

Public performance in venues

Karaoke

Music in stores and restaurants

Stadiums

Sporting Events

Jukeboxes

Music onboard commercial aircraft

etc etc

The only significant free market exception left:

Songwriters are still free to name their price for the initial “sync” fee for use of a song in TV, film or commercial.  But all subsequent royalties from broadcast are set by feds.   Not surprisingly songwriters are paid reasonably well for “sync” uses.

Whether you are shouting “tax the rich” into a megaphone or urging mass copyright infringement against he MLK estate it’s still important to wear your pearls!  

“Progressive” Zephyr Teachout the democratic primary victor in NY-19 Congressional district is director of an organization that urged and continues to urge mass copyright infringement directed at the MLK estate.  Only in a 90% white district in upstate NY could someone like this be considered a “progressive.”

We have been covering this story here at the Trichordist for over a month.   We have tweeted her links.  We have emailed the Zephyr Teachout campaign.   Other organizations including the local American Federation of Musicians have tried to get her to respond on this and other copyright issues.  No response.

As of 11:04 pm  June 28th the webpage urging mass copyright infringement is still live.  We can only conclude that Teachout has “dug in” and she sees nothing wrong with this.  Really?  That’s where she’s gonna take a stand?   Is that what it means to be a progressive now days?  No thanks.

Zephyr TeachOut is not who she claims to be.  Don’t say we didn’t warn you. Read our comprehensive coverage of her long and sordid history with astroturf groups,SuperPACs  and self-serving copyright infringement here:

https://thetrichordist.com/2016/05/24/progressive-candidates-fail-artists-zephyr-teachout-ny-19-vs-woodstock-ny/

Teachout’s “Internet freedom day” website at 11:04pm EDT June 28th.  Worlds first civil disobedience campaign against a civil rights icon! Still live. Now that’s what I call Progressive!

You think Brexit was stupid? New York -19 Dems show the Brits how it’s done with a Zephyxit!

This is the “About Us” page when we started writing about Teachout.

In the last few days the page has been changed to this.  Hey kids it’s a game of “where in the world is Zephyr Teachout?”

Oh here she is!  Right here on their 2015 tax return!

By The Time We Get To Woodstock….

This Tuesday, Zephyr Teachout, director of the anti-artist FFTF (Fight For The Future)’s 501c3, is running in the Democratic primary in NY’s 19th congressional district (Hudson Valley, including Woodstock)

Although Teachout  is running as a progressive, and is indeed progressive on many issues, the FFTF is about as regressive on artists rights/copyright as possible.

See:

http://m.registerstar.com/opinion/letters_to_the_editor/article_d6f609cc-34a4-11e6-927b-0bd4ad13e953.html?mode=jqm

https://thetrichordist.com/2016/05/24/progressive-candidates-fail-artists-zephyr-teachout-ny-19-vs-woodstock-ny/

https://thetrichordist.com/2016/04/02/fight-for-the-future-of-corporate-astroturf-ripping-off-creators/

After unsuccessfully trying to get Teachout to clarify  her relation to the anti-artist positions of FFTF,  NY based “Musicians Action group” [MA.g] activists sounded the alarm through a mass emailing to  Hudson Valley musicians:

“Many of us are democrats who share Teachout’s progressive views on many issues. But creators’ families are Working Families, too, and copyright is how we get paid.  So we’re asking Zephyr Teachout: Which Side Are You On?”. The email asked everyone  to send  Teachout 4 questions (see below).

According to MA.g spokesperson Marc Ribot, “the response from musicians/creators has been extremely positive.

Legendary Jazz drummer and Hudson Valley resident Jack DeJohnette copied us on the letter he and his wife Lydia sent Teachout, along with MA.g’s 4 questions.   We think Jack and Lydia’s eloquent letter speaks for MANY,  in Hudson Valley and beyond.”

Jack and Lydia DeJohnette Letter to Teachout

Dear Ms Teachout,

My wife and I have been following you since your run for governor with interest.  We are progressives and along with the rest of us are disturbed by a lot of what we perceive as self-serving politicians who seem to have forgotten who puts them in office and who they should be serving. 

You have impressed us on many issues, however, the attached letter speaks to issues that are directly impacting our lives as artists.

The Hudson Valley has according to Mike Hein,county executive,  the largest group of artists per capita in the USA living in it.  My wife and I have lived here over 40 years and raised our family here.  It disturbs me that someone who seems to be running in support of the people is not further tuned in to the needs of us artists, who ultimately might be your constituents.

Since downloads and YouTube started my  recorded music royalties have declined by over 90%, I am all over YouTube, everyone but me gets an income from this.

The internet has virtually destroyed my royalty income, from radio to illegal downloads.  I am not a famous rock star who can get heavy duty lawyers fighting for me.  I am a jazz musician, we have never been represented in the ‘big picture’, our sales are considered paltry by the industry. 

Technology is in advance of regulations, our only hope is that our politicians take up the cause for us and work to bring in legislation that protects us, we hope you will become that champion.  If you support us in this issue, we will consider supporting you further.  Please respond to the four questions posed in the attachment.

I am a senior now and at one time in the past I had expected to retire with some royalty income as a back up, unfortunately that is no longer. As the corporations behind the music industry are getting bigger and bigger.

We look forward to hearing from you,

Sincerely,

Jack & Lydia DeJohnette

Four Questions for Zephyr Teachout Candidate US House of Representatives Democratic Primary NY-19

1. Do you personally support the anti-artist, anti-copyright agenda of Fight For The Future, where you served as Director of the Education Fund? If so, please explain why you hold that position. If not, please explain how your views differ from the messages of that organization.

2. Do you recognize that mass, online copyright infringement causes direct harm to people like me? As my prospective representative, will you fight for my ability to support myself and my family with my creative work?

3. You’re running on a message that is very important to democrats – holding corporations accountable and getting big money out of politics.  Can you say without equivocation that Fight For The Future reflects these values?

4. Do you support Jerrold Nadler’s Fair Play Fair Pay bill, which would bring the US into conformity with the rest of the free industrialized world by paying artists for the commercial, terrestrial radio broadcast of their work (and put tens of millions in foreign royalties now being withheld due to the lack of US reciprocity into the pockets of US working artists)?

From the no-one-understands-your-tired-copyleft-bullshit-t-shirt dept

Let me be honest. The Trichordist has succeeded in raising awareness of artists rights issues in the digital world not because we are particularly gifted.  The secret to our success is that those arrayed against us, particularly those allied with the digital music services, keep serving up our talking points on a silver platter.  I’m not sure if this is arrogance, hubris or sheer ineptitude but it keeps happening.

Case in point is the so-called Open Music Initiative (OMI).   While this seemed to me to be a carefully crafted PR response to the songwriter class-action lawsuits, I couldn’t just come out and say that.

Fortunately the participants in the OMI made the connection for me.   NPR and their local affiliate WBUR are participants in the Open Music Initiative and they published this super helpful article on their website:

Enough With The Lawsuits: Berklee, MIT Lead Effort To Create Ownership Rights Database For Music Industry

Thank you.

So this is just what we suspected it to be all along, cynical counter-programming to burnish the public image of an industry that has been the target of a host of class-action lawsuits. Largely because these companies blatantly violated a host of federal laws by failing to license and pay songwriters.   And BTW I’m not just talking about copyright law here.   If I was a Spotify shareholder I would take a close look at those Spotify financial statements. (What are the EU rules for reporting contingent liabilities like potential lawsuits?)

Actually counter-programming is too nice of a term.  If the WBUR article is any indication, expect the OMI to propagate falsehoods and propaganda that mislead the public and potential songwriter class members as to the nature of their rights.  Look at this whopper by Berklee’s Panos Panay:

“It’s one of the few industries that I know where you can use something and it’s OK to not really know who to pay,” he said with a laugh. “Well we don’t think that that should be acceptable.”

Actually it’s not ok to use a song without knowing who to pay.  The law is very clear on this matter, hence the class action lawsuits.  This statement has the potential to mislead putative class members, specifically by making them think that their rights have not been violated.  This is a very troubling statement since Spotify is somehow sponsoring this initiative.

Of course this could also be sheer ignorance on the part of Panay. He may really think that you can use music without “knowing who to pay.”  As we demonstrated last summer Berklee’s academic scholarship on copyright and music licensing is quite shoddy:

https://thetrichordist.com/2015/08/08/100-dollar-prize-be-first-to-illustrate-all-the-flaws-in-this-berkleecollege-of-music-chart/

This may explain why a Berklee College of Music student pays $43k a year but typically earns less than a high school graduate after attending.  That’s right attending Berklee College is negatively correlated with future earnings!

More on Berklee statistics here:

https://collegescorecard.ed.gov/search/?name=Berklee%20College&sort=advantage:desc

and here:

https://thetrichordist.com/2015/07/23/us-dept-education-transparency-report-on-berklee-college-of-music/

If Berklee College, NPR, WBUR and Spotify are truly serious about streaming transparency first order of business should be publishing a list of the “unmatched,” unpaid and unlicensed songs.  They won’t.  Because this is an elaborate corporate smokescreen.

WBUR Public Radio in Boston recently published this highly misleading and shoddy piece of journalism.  This is yet another example of public radio being captured and co-opted by corporate interests, and downplaying the rights of songwriters and musicians.

Someone sent us this article by Boston’s NPR affiliate WBUR.  I was quite surprised to see WBUR repeating wholesale misinformation on the Open Music Initiative.

http://www.wbur.org/artery/2016/06/13/berklee-mit-music-rights-database

Here is the comment I left on their website:

Your title is funny. None of this would be happening without the class action lawsuits. 2 years ago in copyright office filings streaming services including Spotify were openly admitting they lacked procedures and technology to pay songwriters. A decade ago the then Attorney General of NY Elliot Spitzer nailed labels for “unmatched and unpaid” songwriter royalties. YouTube has come under fire for relying on a misinterpretation of “safe harbor” protections and is monetizing massive amounts of unlicensed “content” uploaded by their users. These are not “white knights” coming to the aid of songwriters and musicians, this is a cross-industry ass covering excercise. The parties involved had years to fix this problem. Your piece fails to note these facts. WBUR should be ashamed of their shoddy reporting. And Berklee should be held accountable for taking tuition money from aspiring musicians and songwriters ($30k+ a year) while simultaneously providing political cover for practices that make it difficult for graduates to pay back their loans.

While I welcome the efforts of the OMI, it should be properly portrayed.  Streaming services, YouTube and yes even the record labels have failed to follow the law on licensing and royalty payments.

I happen to agree with WBUR on one small point:  Class action lawsuits are not the ideal remedy, as they are expensive and place the burden on the victims.  This problem is so big,  and the malfeasance has gone on for so long,  it is really a job for the Department of Justice.

This is how you know the Artists Rights movement has hit critical mass, two astroturf Google proxies have created their own artists rights website.  While the total cost to run the  Trichordist is less than $50 dollars a year, how much do you think these DC corporate apparatchiks spent on this piece of propaganda? 

According to Billboard Wednesday June 8th the National Music Publishers Association announced an agreement with two of the three major labels to hold mechanical royalty rates at 9.1 cents until 2022.

http://www.billboard.com/articles/business/7400362/universal-music-warner-music-nmpa-settlement-mechanical-sales-rate

While this may not seem like a big deal, it is. If you take into account inflation this amounts to somewhere between a 6% and 12% cut for songwriters based on a range of predicted inflation.   More than any other group in the music industry, songwriters have seen their revenue streams decimated during the transition to digital. Much of the blame for the reduction in revenue can be laid at the feet of the so-called “grown-ups” in the music industry. Time after time, the major rights holders and trade groups have agreed to deals that effectively make the pie smaller for songwriters.

Meanwhile I don’t see any of the executives taking pay cuts.

Further as part of the NMPA settlement WMG and UMG have agreed to sit out the upcoming Copyright Royalty Board hearings. Early it was announced that the two groups that represent “independents”  Merlin and A2IM will also sit out the proceedings. This leaves underpaid songwriters to fend for themselves at the CRB hearings against Rhapsody, SoundCloud, Spotify, Pandora, Omniphone, Google, Deezer, Apple, Amazon and the Digital Media Assn.

On top of this NMPA has now established a precedent that will allow streaming services to argue to the CRB that streaming mechanicals should be cut.

It’s time that songwriters hold David Israelite, the NMPA, A2IM and Merlin accountable for their actions. (Remember Merlin cut the deal with Pandora that ended up being evidence for the CRB ruling that cut rightsholders pay on non-interactive a billion dollars over 4 years see here: https://thetrichordist.com/2016/03/16/billboard-finally-agrees-the-pandora-merlin-deal-will-cost-rights-holders-a-billion-dollars-in-soundexchange-royalties/)

Is the Trichordist the only entity looking out for the interests of songwriters? And how the fuck did that happen?

This is a screenshot form earlier today.  YouTube hosts dozens of videos like these advertising the illegal sale of the Prince killing drug Fentanyl. Mississippi Attorney General Hood is right on YouTube:  They continue to enable advertising for illegal drug trafficking. 

Just saw this on MTP:

Google Facilitates the Sale of the Drug that Killed Prince
Songwriters  and performers have a legal rights to choose with whom they do business.  If I don’t like Coors I don’t have to license my music for their commercials.  If I you don’t like the particular views of a political candidate you don’t have to let them use your music.

Well, what about a company that hosts advertisements for illegal sales of drugs,  hate rock videos,  terrorist recruitment videos and thousands of other abominations.   Artists don’t want to support a business like this do they?

Well, because YouTube abuses the DMCA takedown process, and interprets it as a game of “Whack-a-mole”  there is no practical way to keep your music off of YouTube.   We are forced to go into business with a deeply amoral company?

++++++++++++++++++++++++++++++++++++++++++

We have carefully documented over the years all the nasty crap Google/YouTube hosts:

https://thetrichordist.com/2014/11/17/do-you-want-your-music-alongside-hate-rock-videos/

https://thetrichordist.com/2015/07/16/advertisers-how-is-youtube-any-different-than-reddit/

https://thetrichordist.com/2014/04/15/youtube-still-serving-ads-on-hate-rock-videos/

Other news outlets have reported on YouTube hosting  ISIS and Jihadi recruitment videos and serving advertising.

http://www.nbcnews.com/storyline/isis-terror/ads-shown-isis-videos-youtube-catch-companies-guard-n320946

http://abcnews.go.com/ABCNews/political-ads-youtube-videos-isis-scams-drugs-report/story?id=38041543

http://money.cnn.com/2015/03/03/technology/isis-ads-youtube/

https://musictechpolicy.com/2014/02/23/eyesight-for-the-willfully-blind-part-1-youtube-jailbait-and-bangin-up-the-femoral-vein/

We have also questioned the ethics of participating in YouTube hosted events like YouTube Music Awards. 

https://thetrichordist.com/2013/11/07/ytma-artists-can-help-clean-up-youtube-an-open-letter-to-jason-schwartzman-lady-gaga-spike-jonze-m-i-a-arcade-fire-and-macklemore/