The Trichordist

You’ve probably by now heard that Yesh Music LLC and John Emanuele have sued Tidal for Copyright infringement.   It is alleged that Tidal did not obtain the required licenses to stream the songs.  The facts in the case are similar to class actions filed against another streaming service (ahem).

Now there is a sort of salaciousness to a lawsuit against  Jay Z’s artist friendly streaming service Tidal,  thus this story has got a lot of play.   What is going unreported is that Yesh Music LLC  and the same law firm have also filed similar suits against Google Play, Slacker, Deezer, Rdio, Beats, and Microsoft.    Some of these have since been settled out of court.   But it’s clear what is happening here: streaming  services are using songs first and then going back and trying to exercise a compulsory license later.

ALL OF THEM.  

The law is absolutely clear on this matter.  You can not go back and try to obtain a compulsory license once you have already made songs available.

At the heart of all these lawsuits are deficient “Notices of Intent” like this one sent by Music Reports on behalf of Rdio.  I received this notice via the US postal service.  It is a highly misleading letter that purports to be a valid notice to execute a compulsory streaming license a full 4 months after the service made the song available! I have dozens of these deficient notices.  I’m not an attorney but the relevant section of the copyright act is incredibly clear on this matter: Rdio no longer has the right to license the song in this manner.  Music Reports  are in the business of licensing music for streaming services.  Surely they understand the law?  They reference the relevant section of the copyright act at the top of the letter!  How many thousands of these notices have they sent out via the US Postal Service  to songwriters all across the United States? 

K Street Lobbyist and Former P2P United Director Adam Eisgrau.

As we suspected, the nomination of Dr. Carla Hayden for Librarian of Congress looks troubling for writers,songwriters and other creators.  If you were not aware the Copyright Office is part of the Library of Congress, and thus the Librarian of Congress could have deep influence over copyright policy in the US.   Thus it deeply troubles us that we see the former executive director of the piracy alliance, P2P-United, endorse the nominee for Librarian of Congress.

The  experience of musicians over the last 17 years is that copyright exceptions like the DMCA “safe harbor” have been abused by companies like Google/YouTube to generate billions of dollars in income while often paying musicians nothing.   At the same time the DMCA safe harbor is creating an internet-wide market failure that has made it impossible for musicians to obtain a fair market value for their songs and recordings in the digital realm.

To be clear we do not know Dr. Hayden’s views on copyright,  but we hope she does not heed  Esgrua’s call to further “balance” copyright towards the exemptions and exceptions.   The companies that benefit from the exceptions are already some of the biggest companies on earth.   The Library of Congress needs a Librarian that understands that the books that fill the shelves are produced by copyright incentives not exceptions.

Search for “free music” in the Apple App Store.

Grab this one: Free Music -Stream Music Mp3 Video Player.

Here it is on my home screen.

Look ads!  Click on blue triangle.  Hope you didn’t pay too much for that shitty mobile ad HBO digital marketing geniuses!

“Ads by Google.” Yes the company that wants to monetize the worlds piracy.

Check for one of my songs. Looks like studio recording…

Yes, indeed this is our studio recording.

Here’s another. Stay Classy New York Times.  Who else is on here?  Studio recordings?

Dead Kennedys.

Cake.  Google is calling you “dude.”  Studio Recording!

Old 97’s.

Lessons learned:

1. Apple and Google can get along when it comes to fucking over artists.
2. Google mobile advertising is absolute horse-shit.
3. The voluntary guidelines to stop click fraud and ad supported piracy are double horse-shit.
4. They aren’t gonna stop unless someone goes to jail.

Never mind the cultural sensitivities: Canadian sci fi writer Cory Doctorow calls Dr. Hayden a “no foolin'” librarian.  

If Cory Doctorow is FOR the nominee for Librarian of Congress which oversees the Copyright Office is something seriously wrong? Cory Doctorow is one of the most dishonest and hysterical critics of copyright protections and artist’s rights. To call him a “demagogue” is putting it lightly. For example in this same article he comes up with one of his patented falsehoods seemingly designed to generate maximum hysteria from his ignorant tl/dr followers:

“Next up: watch for a move to rip the US Copyright Office (which now gets to make rules on things like whether the DMCA prohibits you from using generic insulin in your insulin pump) out of the Library of Congress…”

The Copyright Office could prohibit you from putting generic insulin in your insulin pump? I want some of the generic insulin he is smoking. This is such a wild claim I don’t even think it’s been debunked yet. It makes no sense. It is science fiction. And remember Cory Doctorow is really good at science fiction (seriously).  Maybe he got confused. He thought he was writing fiction?

Thankfully  Mr. Doctorow  encouraged me to go ahead and look into the background of the Librarian of Congress nominee, Dr. Carla Hayden.  A two minute search on my iPhone revealed  that Dr. Hayden is on the leadership council for the Open Society Institute of Baltimore. This is not in and of itself a bad thing. I’m sure they do good work. The problem is that OSI Baltimore is a part of George Soros’ Open Society Foundation. The Open Society Foundation is quite hostile to copyright protections for authors.   The Open Society Foundation is STILL calling for further exceptions and limits to copyright knowing full well author’s revenues have been devastated by lack of effective copyright protections the last 15 years.  This concerns me.  This should really concern every author.

We should really thank Mr. Doctorow for alerting us to this possible “Manchurian nominee” for Librarian of Congress.  Artists and authors should get a chance to thoroughly question her stances on copyright protections.

Canadian Sci-Fi Writer Cory Doctorow in natural habitat. By Ed Schipul from Houston, TX, US (Cory Doctorow @ eTech 2007) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)%5D, via Wikimedia Commons

It’s hard to believe that an artist has to go through what Kesha has been through, but there it is.  We’ll have more on this in coming days, but this post by @morayati is one of the better ones that summarizes the problems with the case.

One of the problems with the “savior” approach to A&R is that people lose sight of the reality that regardless of how effective the producer is, regardless of how great the songs are, hit records are a product of hundreds of people working their fingers to the bone to make something happen–starting with the artist.  That includes everyone at the record company, the managers, booking agents, the entire team.  And the producer.  If you have that team and those resources behind a great artist, that producer may prove himself to be not that critical a component to the artist’s career after all.

Why Sony is allowing this to happen at all, but especially when the public is on a collision course with Sony Corp  (aka “Big Sony”) is a mystery.  They could do the right thing now or wait until Tokyo tells them to.

Even looking at it from that cold-blooded commercial point of view, it’s certainly not worth compromising your personal ethics over the A&R savior-du-jour.

Some reporting questions for the Kesha court case

The key quote from the Kesha/Dr. Luke court battle, which has just taken a dispiriting turn, is this, by judge Shirley Kornreich: “My instinct is to do the commercially reasonable thing.” A lot has been written, rightly, about what a chilling statement this is, and there’s been a lot of talk about how best to support Kesha.

Let me apologize in advance for the rather lo-fi nature of this video, but it’s from an informal webinar I’ve created for artist’s rights activists in training.   Here I explain the basics of ad funded piracy; how Google profits from this activity; how this causes market failure drives down the price of music across the board.  And how we can turn the tables on these guys.

For more on the scammy scammy world of online advertising read article referenced in the video

http://www.bloomberg.com/features/2015-click-fraud/