This has been a good week for artist rights–the Turtles struck a major blow in the struggle against the new boss in their case against Sirius to protect the rights of artists who recorded prior to 1972. What should we expect now from new boss companies like Pandora, Sirius, YouTube and Clear Channel? When we remember that the new boss is far, far worse than the old boss, there are certain events we can anticipate. No money, bigger alliances against us and crony capitalism on steroids. I’d love to be wrong, but don’t be surprised if I’m right.
1. No Payments and Scortched Earth Litigation: While it would be the right thing to do, my prediction is that it will be a frosty day in Hell before the new boss will ever pay a penny to pre-72 artists, musicians or background vocalists without a final nonappealable judgement following absolute…
We reported on this earlier this year and it’s great to see other voices stepping up!
by Stephen Carlisle
In other words, Google’s not going to do anything unless Google gets a slice of the profit. When asked, shouldn’t search engines have an affirmative duty to prevent the reposting of materials, she responded that it would be “impractical to enforce and it would chill online speech.” 19 This answer begs the question: since when is the repeated posting of “blatantly infringing” material online protected speech? To quote the Supreme Court of the United States, the First Amendment “securely protects the freedom to make—or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches.” 20 According to the RIAA, they have sent more than two million takedown requests to Google about the website mp3skull. Despite this, mp3skull continues to top Google’s search results for “artist+songname+download.” 21 Whose speech is being chilled here?
“You see what happens when you find a stranger in the alps”-Television censored version of Walter’s magnificent rant in The Big Lebowski.
We told you so. Sirius, Pandora and other digital broadcasters in refusing to pay royalties on pre-1972 masters have created total chaos for digital broadcasters and enormous liabilities for their shareholders. A federal judge has ruled that Sirius has no license to play these songs. This is not a just a devastating setback for Sirius. It has wide ranging repercussions for the entire broadcasting industry. Does any service have a license to play any pre-1972 recording? That is now an open question.
We’ve always maintained that the position that Sirius and Pandora have taken in regards to pre-1972 recordings was extremely dangerous, for it could result in a judge ruling that no digital broadcasters have compulsory licenses to play these songs. And now that’s what has happened. If this ruling stands every digital broadcaster may have to obtain a license to play pre-1972 recordings from every single master recording owner. That is what I would call a clusterjam™ of epic proportions.
In the equity trading business there is a little adage: “Any idiot can lose money in the stock market, you have to be really smart to lose a lot of money.” So here is the corollary: “Any idiot lawyer can make a bad legal argument that leads to copyright infringement liabilities, It takes a really smart lawyer to make an entire industry liable.”
The thing for Pandora and Sirius to do now is to immediately start paying royalties under the 1995 DPRA act (and subsequent acts). Why? Because they’d at least have a fig leaf of a claim to a license for these recordings. With all due respect to our lawyer friends and law professors who have insisted that we are wrong about this, the federal 1995 DPRA act DOES cover pre-1972 recordings (and a careful reading of the latest ruling does not contradict our position). To claim otherwise is as plausible as a belief in unicorns. Just look at the text* of the 1995 DPRA. Nowhere does the text make any distinction between pre-72 or post 72 masters. Further you would have to believe an extraordinary claim that congress intended to exclude an entire class of recordings, without testimony or debate. The act also goes out of it’s way to specifically exempt terrestrial radio, if congress had intended to exempt pre-1972 recordings wouldn’t they have specifically exempted it? After all they declared themselves to be in the business of handing out exemptions! Further the law says “copyrighted work”, but does not specify federal copyright as the unicorn wranglers claim. And lets be consistent here, by inductive logic why aren’t the unicorn caballeros claiming that the DMCA safe harbor doesn’t apply to pre-1972 recordings? I just hear crickets on that one.
[DOCID: f:publ39.104]
DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995
[[Page 109 STAT. 336]]
Public Law 104-39
104th Congress
An Act
To amend title 17, United States Code, to provide an exclusive right to
perform sound recordings publicly by means of digital transmissions, and
for other purposes. <<NOTE: Nov. 1, 1995 - [S. 227]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Digital
Performance Right in Sound Recordings Act of
1995. Copyrights. Communications.>>
SECTION 1. SHORT TITLE. <<NOTE: 17 USC 101 note.>>
This Act may be cited as the ``Digital Performance Right in Sound
Recordings Act of 1995''.
SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.
Section 106 of title 17, United States Code, is amended--
(1) in paragraph (4) by striking ``and'' after the
semicolon;
(2) in paragraph (5) by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.''.
SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.
Section 114 of title 17, United States Code, is amended--
(1) in subsection (a) by striking ``and (3)'' and inserting
``(3) and (6)'';
(2) in subsection (b) in the first sentence by striking
``phonorecords, or of copies of motion pictures and other
audiovisual works,'' and inserting ``phonorecords or copies'';
(3) by striking subsection (d) and inserting:
``(d) Limitations on Exclusive Right.--Notwithstanding the
provisions of section 106(6)--
``(1) Exempt transmissions and retransmissions.--The
performance of a sound recording publicly by means of a digital
audio transmission, other than as a part of an interactive
service, is not an infringement of section 106(6) if the
performance is part of--
``(A)(i) a nonsubscription transmission other than a
retransmission;
``(ii) an initial nonsubscription retransmission
made for direct reception by members of the public of a
prior or simultaneous incidental transmission that is
not made for direct reception by members of the public;
or
``(iii) a nonsubscription broadcast transmission;
``(B) a retransmission of a nonsubscription
broadcast transmission: Provided, That, in the case of a
retransmission of a radio station's broadcast
transmission--
[[Page 109 STAT. 337]]
Score Round One for the Duke, the Count and Satchmo–Flo & Eddie pka The Turtles have won a crushing victory over Sirius XM requiring Sirius to license and pay royalties for Flo & Eddie’s recordings published before 1972. Sirius had taken the position that because the Congress did not expressly include pre-1972 recordings when it established the performance right for sound recordings in 1995, Sirius did not have to pay royalties on pre-72 recordings it used on its service. This is a position held by Pandora and the Digital Media Association which includes Google among its membership. More about that later.
The case was brilliantly argued for Flo & Eddie by Henry Gradstein and Harvey Geller, two long time artist advocates (the firm is also representing Aimee Mann in her lawsuit against MediaNet). The theory is actually very simple, even biblical–thou shalt not steal. But then I’m an Old…
“It also doesn’t really care much about governments, either. And when it comes to individual creators struggling against a gigantic American multinational media empire–like Google–we all need the government to do its part to protect creators and consumers from these rogue companies profiting from outright theft in the biggest income transfer of all time.” Any Questions?
As MTP readers will recall, Google is locked in the proverbial death struggle with the European Commission over antitrust complaints of Google’s anticompetitive behavior. Those complaints resulted in an antitrust investigation going back several years. For Google, winning that investigation would look like palming off as real change some ice in winter changes to their business practices as part of a bureaucratic charm offensive. That charm offensive resulted in the embarrassing image of Eric “Uncle Sugar” Schmidt cozying up to his new BFF the Competition Commissioner of the European Commission, Joaquín Almunia.
Commissioner Almunia gave Google not one, not two, but an unprecedented three opportunities to negotiate a settlement on Google’s own terms–and Google is desperately trying for a fourth before Mr. Almunia’s term expires in October, and yes I do expect an October surprise from Mr. Almunia. Every time Google got a chance to renegotiate rather than getting fined or…
In this interview with the BBC for the show “The Digital Revolution,” Andrew Keen describes how artists have been exploited by the tech and internet industries.
“What would I say to the people that are sitting in front of their computers–believing in revolution–I would tell them that they are subjects or victims of false consciousness, that they’re wrong— that they’re believing in something that doesn’t really exist–that they’re dupes–they’re exploited, particularly those that give away their labor for free so that young men in Silicone Valley can become infinitely rich.” – Andrew Keen
“…somebody should fight for fellow artists, because this is madness. Music has become tap water, a utility, where for me it’s a sacred thing, so I’m a little offended. The Internet has emasculated rather than liberated artists…”
Musicians have been getting the short end of the stick for a long time. There are no shortage of stories about the wrong doings of managers, booking agents, etc and of course record labels.
But today we find ourselves in a battle with an enemy few of us understand. If we were to believe the writings and ramblings of the tech blogosphere, than they would have us believe that our enemy is our fans. This is simply not true.
The enemy are the for profit businesses making money from our recordings and songwriting illegally. Let’s be clear about this, our battle is with businesses ripping us off by illegally exploiting our work for profit. This is not about our fans. It is about commercial companies in the businesses of profiting from our work, paying us nothing and then telling us to blame our fans. That is the ultimate in cowardice…
This just in from Digital Music News, we’re not surprised. The death spiral towards the $3b annual record business is accelerating… One word to artists and music executives reading this post… “WINDOWING”…
May 10th, 2013:
“We have data that’s proving and demonstrating the fact that streaming revenue is additional to actual unit download consumption or physical music sales…”
Katie Schlosser, Spotify Account Manager of Label Relations, speaking at NARM.
September 12th, 2014:
“Streaming consumers are buying few albums. 30 percent of consumers are music streamers and a fifth of these consumers pay to stream. Streaming has driven new market growth in countries such as Sweden but in larger markets such as the US it is denting digital music buying.
So record labels invest in the careers of artists about $4.5 Billion annually in A&R and Marketing. Meanwhile, there are 200,000 infringing sites exploiting artists work and paying them nothing that we can see from the looks of the Google transparency report.
To be precise at the time of the writing of this post there are 281,340 infringing sites on the report with the #1 offender having received over 7.5 Million DMCA takedown notices! Seriously, 7.5 Million… and Google can’t determine that this is a site “dedicated or primarily used for infringement.” Wow.
FIRST DISCLAIMER:
Now look, we don’t always like record labels, but when we do, it’s because they are actually paying artists and investing capital into developing careers (hello Trent Reznor returning to a major label). Ninety percent of new releases financed by labels don’t recoup or break even, but the bands still gain the marketing and PR…
The Trichordist 
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