Coalition of Songwriter Groups Ask CRB “Where’s the Motion?” on Insider Deal for Frozen Mechanicals

MCNA
NORTH AMERICA

May 24, 2021

Via Electronic Delivery

Chief Copyright Royalty Judge Jesse M. Feder
Copyright Royalty Judge David R. Strickler
Copyright Royalty Judge Steve Ruwe
US Copyright Royalty Board
101 Independence Ave SE / P.O. Box 70977
Washington, DC 20024-0977

To Your Honors:

Music Creators North American (MCNA) and its numerous organizational supporters noted below wish to express our sincere thanks for the immediate reply to our letter dated May 17, 2021, which we received from the Copyright Royalty Board on May 18, 2021.  As stated in our prior letter, we have had deep concerns regarding the proposed physical mechanical royalty rate settlement negotiated between the major record labels and their affiliated major music publishers (and the respective trade groups of each), and your assurances that all interested parties –including non-participating songwriters and composers– will have a chance to be heard on this matter prior to its disposition is very much appreciated.

Indeed, as previously noted, independent music creators and music publishers have not to our knowledge ever been contacted, let alone consulted, about a deal that will be binding on us and will ultimately have profound impact on our livelihoods.    Our community of songwriters and composers proudly speaks for itself on such matters, and we very much look forward to presenting our views concerning a “settlement” that in no way could have been negotiated at arm’s length through fair dealing—the process and result that ought to be the goal of all CRB proceedings.

In addition to expressing our appreciation for the opportunity to comment, however, we also write to respectfully seek clarification concerning certain details.  Specifically, in its May 18 response, the CRB stated that:

After the parties to the partial settlement file a motion to adopt [the] settlement, the Judges will publish the settlement in the Federal Register for comments by the participants in the proceeding and others who would be bound by the terms of the settlement.  We haven’t received that motion yet, but it is due today.

As the CRB is now aware, the parties did in fact file notice with the CRB later that day (May 18, 2021) indicating that the terms of the settlement they had now reached was identical to the terms set forth in their prior “Notice of Settlement in Principle” filed on March 2, 2021 (https://app.crb.gov/document/download/23825).  

The parties did not, however, file a motion asking the CRB to adopt the settlement as expected. 

We believe that this procedural omission (whether permissible or not) may well be calculated to delay and/or compromise the ability of the independent music creator and music publishing communities to file comments in a timely manner, and could result in irreparable harm to our ability to present our views and pose our questions, for example, if one or more of the settling parties subsequently withdraws from the proceeding.  Simply put, we believe the settling parties are seeking to stifle timely discussion and dissent through delay, a strategy which should be rejected as antithetical to due process.

Section 801 (b) (7) of the US Copyright Act provides that the CRB shall have the authority:

(A) To adopt as a basis for statutory terms and rates or as a basis for the distribution of statutory royalty payments, an agreement concerning such matters reached among some or all of the participants in a proceeding at any time during the proceeding, except that—

(i)

the Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement an opportunity to comment on the agreement and  object to its adoption as a basis for statutory terms and rates; and

(ii)

the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause (i) objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. (emphasis added)

Pursuant to such authority, we urge the CRB to determine that the filings submitted by the settling parties on May 18, 2021 affirmatively triggered the fairness and transparency provisions of section 801 (b) (7) (a) (i), and that in the interests of equity and of sound economic and legal policy clearly intended by Congress, those “who would be bound by the terms of the settlement” now be permitted to timely file comments approving of, objecting to, or seeking more precise detail concerning the terms.  Crucially, the plain language of the statute contemplates that every music creator in the world, living and dead, will be “bound” by the settlement of “participants” if adopted by the Board because the law will then impose the terms of that settlement on all songwriters and composers.  Section 801 (b) (7) is designed specifically to timely promote openness, inclusivity and clarity in that process.

We thank you for your continued attention to this issue, which is of crucial importance to the future economic health and survival of the US and global music creator community.

Respectfully submitted,

Rick Carnes                                                    Ashley Irwin

President, Songwriters Guild of America      President, Society of Composers and Lyricists

Officer, Music Creators North America         Co-Chair, Music Creators North America

List of Supporting Organizations

Songwriters Guild of America (SGA), https://www.songwritersguild.com/site/index.php

Society of Composers & Lyricists (SCL), https://thescl.com

Alliance for Women Film Composers (AWFC). https://theawfc.com

Songwriters Association of Canada (SAC), http://www.songwriters.ca

Screen Composers Guild of Canada (SCGC), https://screencomposers.ca

Music Answers (M.A.), https://www.musicanswers.org 

Music Creators North America (MCNA), https://www.musiccreatorsna.org


cc: Ms. Carla Hayden, US Librarian of Congress

      Ms. Shira Perlmutter, US Register of Copyrights

      Mr. Alfons Karabuda, President, International Music Council

      Mr. Eddie Schwartz, President, MCNA and International Council of Music Creators (CIAM)

      The MCNA Board of Directors

      The Members of the US Senate and House Sub-Committees on Intellectual Property

      Charles J. Sanders, Esq.

      Alliance of Latin American Composers & Authors (AlcaMusica) https://www.alcamusica.org

      Asia-Pacific Music Creators Alliance (APMA), https://apmaciam.wixsite.com/home/news  

      European Composers and Songwriters Alliance (ECSA), https://composeralliance.org

      Pan-African Composers and Songwriters Alliance (PACSA), http://www.pacsa.org

by Trichordist Editor

@DavidCLowery Joins the List Opposing Frozen Mechanicals at the Copyright Royalty Board #irespectmusic

Against Frozen MechanicalsSupporting Frozen Mechanicals
Songwriters Guild of AmericaNational Music Publishers Association
Society of Composers and LyricistsNashville Songwriters Association International
Alliance for Women Film Composers 
Songwriters Association of Canada 
Screen Composers Guild of Canada 
Music Creators North America 
Music Answers 
Alliance of Latin American Composers & Authors 
Asia-Pacific Music Creators Alliance 
European Composers and Songwriters Alliance 
Pan African Composers and Songwriters Alliance 
North Music Group 
Blake Morgan 
David Lowery 

by Trichordist Editor

@theBlakeMorgan Joins the List Opposing Frozen Mechanicals at the Copyright Royalty Board #irespectmusic

Blake Morgan songwriter, publisher, producer and label owner, two-time U.S. Supreme Court amicus, founder of the #irespectmusic campaign and relentless artist rights advocate joins the list opposing frozen mechanicals on vinyl and physical. “This is about so many things, but we simply must fight to keep digging out from a 68 year injustice. Big thanks to the inspirational Abby North for standing up for fairness and transparency!”

BlakeIRespectMusic

Against Frozen MechanicalsSupporting Frozen Mechanicals
Songwriters Guild of AmericaNational Music Publishers Association
Society of Composers and LyricistsNashville Songwriters Association International
Alliance for Women Film Composers 
Songwriters Association of Canada 
Screen Composers Guild of Canada 
Music Creators North America 
Music Answers 
Alliance of Latin American Composers & Authors 
Asia-Pacific Music Creators Alliance 
European Composers and Songwriters Alliance 
Pan African Composers and Songwriters Alliance 
North Music Group 
Blake Morgan 
by theinvisiblestagehand

@NorthMusicGroup Letter to Congress on Frozen Mechanicals and the Copyright Royalty Board

May 13, 2021 – By Email

Senator Dianne Feinstein                                           Senator Alex Padilla
United States Senate                                                  United States Senate
331 Hart Senate Office Building                                 B03 Russell Senate Office Building
Washington, D.C. 20510                                             Washington, D.C. 2010

Re: Potential Settlement of Mechanical Royalty Rates in CRB Phonorecords IV  

Dear Senators Feinstein and Padilla:

I am a California-based music publisher.

I’m writing to you to express my concern regarding the private party settlement submitted to the Copyright Royalty Board by the NMPA, NSAI, UMG, WMG and SME related to the Phonorecords IV physical and download mechanical rate.

My father-in-law was the composer and songwriter, Alex North. Alex worked for years, crafting scores to Hollywood feature films, and writing songs to accompany picture.

In 2015, Alex’s score to A STREETCAR NAMED DESIRE was added to the Library of Congress’ National Registry, as a recognition of the music’s importance as part of the fabric of United States arts and culture.

Alex composed the score to a 1955 film entitled UNCHAINED. The theme to that film became the melody to the song “Unchained Melody,” with the lyric written by Hy Zaret.

“Unchained Melody” has been recorded by thousands of artists, in all styles and genres. The lyric has been adapted to at least 20 different languages. “Unchained Melody” is among the most popular wedding songs of all time. Listeners still download recordings of “Unchained Melody.” They still buy CDs and vinyl releases.

I am the music publishing administrator of  “Unchained Melody,” on behalf of my family and the Zaret family. I also administer over one hundred thousand other copyrights on behalf of legacy songwriters and their families, and on behalf of current songwriters and composers.

Songwriters struggle to earn a living wage. With the advent of digital streaming, physical and download sales have certainly declined. However, they have absolutely not disappeared. Anybody who says this royalty stream does not matter is simply not telling the truth.

The royalty amount for the digital stream of a song is a micropenny. Unless it is a top songwriter with hundreds of millions to billions of streams, there is an excellent chance that songwriter still may be driving Uber to support herself and her family.

It takes hundreds of streams of a recording to equal the 9.1 cent mechanical publishers receive for a physical sale or download. That’s why this physical and download mechanical rate is so important.

Vinyl sales are strong for many retailers including Amazon and Best Buy. CDs remain a significant media format, and many listeners still prefer to “own” rather than temporarily cache the music they listen to.

Increasing the statutory mechanical rate to simply adjust for inflation will dramatically (and positively) effect songwriters’ and publishers’ bottom lines. This fight is akin to the battle for an increased minimum wage.

Major music publishers do not face the same struggles as independent publishers and songwriters. Major publishers are part of multi-national conglomerates that own both the major publishers and major record labels. Major publishers that agree to fix the statutory rate simply are leaving more money in the pockets of the labels that are their sister companies.

Those of us that do not have sister companies have no such opportunity. That’s why we must fight to be heard.

Each quarter, I process statements from approximately 100 domestic and global sources, many of which include mechanical royalties for physical and download media. Each quarter, I make distributions to the multiple families that are heirs to, and owners of these copyrights. Songwriters and their families depend on royalties for food, mortgages, education and more.

From the initial publication of “Unchained Melody” in 1955 through 2005 (approximately 50 years!), the statutory mechanical rate was fixed at 2 cents. Starting in 1977, the mechanical royalty incrementally increased from 2¢ to 9.1¢ per unit until 2006.  But since 2006, the statutory rate again was frozen and remains so.  The private settlement would extend that freeze until 2027.

I ask that you review the Copyright Royalty Board practices and consider allowing songwriters and independent publishers – who do not speak through trade organizations or major multi-national corporations — to voice their concerns through public comments that the CRB takes into account before it makes its final decision.

Best, 

Abby North

by Trichordist Editor

@NorthMusicGroup Joins the List Opposing Frozen Mechanicals With the Copyright Royalty Board

We’ve been keeping track of those who are for freezing the statutory mechanical royalty rate for physical and permanent downloads for another five years out to 2027. The issue is currently part of the rate setting proceeding before the Copyright Royalty Board–which froze the same rate at 9.1¢ in 2006 and was first extended in 2009.

Frozen Mechanicals

Here is the current list of those for and against freezing mechanicals on these categories for a total of 21 years:

Against Frozen MechanicalsSupporting Frozen Mechanicals
Songwriters Guild of AmericaNational Music Publishers Association
Society of Composers and LyricistsNashville Songwriters Association International
Alliance for Women Film Composers 
Songwriters Association of Canada 
Screen Composers Guild of Canada 
Music Creators North America 
Music Answers 
Alliance of Latin American Composers & Authors 
Asia-Pacific Music Creators Alliance 
European Composers and Songwriters Alliance 
Pan African Composers and Songwriters Alliance 
North Music Group 
by Trichordist Editor

Copyright Royalty Board Responds to Coalition of Songwriter Groups on Frozen Mechanicals

A group of songwriter organizations from around the world wrote to the Copyright Royalty Board last week opposing a proposed private “settlement” between the major labels and the major publishers to freeze mechanical rates on physical and downloads at the 9.1¢ 2006 rate that was filed in the current Copyright Royalty Board (CRB) rate court hearing called “Phonorecords IV”. (You can find the entire list of filings in the case here.)

The twist here is that if the CRB approves the private settlement at the request of “the parties” and doesn’t take into account the views and evidence of people who actually write songs and have to earn a living from songwriting, it will be grotesquely unfair and possibly unconstitutional wage and price control. The CRB will have frozen the mechanical rate for physical and downloads at the 2006 rate when inflation alone has eaten away the buying power of that royalty by approximately 30%. This would be like the Minerals Management Service adopting a settlement written by Exxon.

On average–on average–the physical and download configuration make up 15% of billing for the majors and for some artists vinyl is a welcome change from fractions of a penny on streaming. And then there’s Record Store Day–hello? These are a couple of the many reasons anyone who is paying attention should reject the terms of the settlement.

US Revenue by Source 2020

The Coalition had a simple ask: Let the public comment:

In the interests of justice and fairness, we respectfully implore the CRB to adopt and publicize a period and opportunity for public comment on the record in these and other proceedings,especially in regard to so-called proposed “industry settlements” in which creators and other interested parties have had no opportunity to meaningfully participate prior to their presentation to the CRB for consideration, modification or rejection. In the present case, hundreds of millions of dollars of our future royalties remain at stake, even in a diminished market for traditional, mechanical uses of music. To preclude our ability to comment on proposals that ultimately impact our incomes, our careers, and our families, simply isn’t fair.

The Copyright Royalty Board responded! According to our sources, the Copyright Royalty Board said that they would publish the private settlement in the Federal Register and give the pubic the chance to comment. This is great news!

But we will see what they actually do. The Copyright Royalty Board does not have a great track record in understanding songwriter interests in raising the mechanical rates as we can see in this except from their final rule freezing mechanicals again in 2009:

Copyright Owners’ argument with respect to this objective is that songwriters and music publishers rely on mechanical royalties and both have suffered from the decline in mechanical income. Under the current rate, they contend, songwriters have difficulty supporting themselves and their families. As one songwriter witness explained, “The vast majority of professional songwriters live a perilous existence.” [Rick] Carnes [Testimony] at 3. [Rick Carnes signed the Coalition letter as President of the Songwriters Guild of America.] We acknowledge that the songwriting occupation is financially tenuous for many songwriters. However, the reasons for this are many and include the inability of a songwriter to continue to generate revenue-producing songs, competing obligations both professional and personal, the current structure of the music industry, and piracy. The mechanical rates alone neither can nor should seek to address all of these issues.

We simply do not accept that the Founders put the Copyright Clause in the Constitution so creators could have a side hustle for their Uber driving which is exactly where frozen mechanicals take you, particularly after the structural unemployment in the music business caused by the COVID lockdowns.

Here is a summary of who is for and who is against frozen mechanicals.

Against Frozen MechanicalsProposing Frozen Mechanicals
Songwriters Guild of AmericaNational Music Publishers Association
Society of Composers and LyricistsNashville Songwriters Association International
Alliance for Women Film Composers 
Songwriters Association of Canada 
Screen Composers Guild of Canada 
Music Creators North America 
Music Answers 
Alliance of Latin American Composers & Authors 
Asia-Pacific Music Creators Alliance 
European Composers and Songwriters Alliance 
Pan African Composers and Songwriters Alliance 

Which side are you on? If you want to write your own comment to the Copyright Royalty Board about frozen mechanicals, send your comment to crb@loc.gov

by Trichordist Editor

Coalition of Songwriter Groups Call on Copyright Royalty Board for Fairness and Transparency on Frozen Mechanicals

[Editor T says this is a letter from a coalition of US and international songwriter groups to the Copyright Royalty Board about the frozen mechanical issue. If you want to write your own comment to the Copyright Royalty Board about frozen mechanicals, send your comment to crb@loc.gov]

MUSIC CREATORS
NORTH AMERICA

May 17, 2021

Via Electronic Delivery

Chief Copyright Royalty Judge Jesse M. Feder
Copyright Royalty Judge David R. Strickler
Copyright Royalty Judge Steve Ruwe
US Copyright Royalty Board
101 Independence Ave SE / P.O. Box 70977
Washington, DC 20024-0977

To Your Honors:

As a US-led coalition representing hundreds of thousands of songwriters and composers from across the United States and around the world, we are writing today to express our deep concerns over the “Notice of Settlement in Principle” recently filed by parties to the proceedings before the Copyright Royalty Board concerning its Determination of Royalty Rates and Terms for Making and Distributing Phonorecords (Phonorecords IV) (Docket No. 21–CRB–0001–PR<(2023–2027)). For reasons explained below, several highly conflicted parties to this proceeding have apparently agreed to propose a rolling forward to the year 2027 of the current US statutory mechanical royalty rate for the use of musical compositions in the manufacture and sale of physical phonorecords (such as CDs and vinyl records). This proposal (and related industry agreements yet to be disclosed by the parties— see, https://app.crb.gov/document/download/23825) should neither be acted upon nor accepted by the CRB without the opportunity for public comment, especially by members of the broad community of music creators for whom it is financially unfeasible to participate in these proceedings as interested parties. It is our livelihoods that are at stake, and we respectfully ask to be heard even though we lack the economic means to appear formally as parties. If procedures are already in place to accommodate this request, we look forward receiving the CRB’s instructions as to how to proceed.

The current U.S statutory mechanical rate for physical phonorecords is 9.1 cents per musical composition for each copy manufactured and distributed. That rate has been in effect since January 1, 2006. It represents the high-water mark for US mechanical royalty rates applicable to physical products, a rate first established in 1909 at 2 cents. That 2-cent royalty rate, in one of the most damaging and egregious acts in music industry history, remained unchanged for an astonishing period of sixty-nine years, until 1978. Nevertheless, the recording industry now seeks  to repeat that history by freezing the 9.1 cent rate for an era that will have exceeded twenty years by the end of the Phonorecords IV statutory rate setting period.

Inflation has already devalued the 9.1 cent rate by approximately one third. By 2027, 9.1 cents may be worth less than half of what it was in 2006. How can the US music publishing industry’s trade association, and a single music creator organization (which represents at most only a tiny sliver of the music creator community) have agreed to such a proposal?

The answer to that question is an easy one to surmise. The three major record companies who negotiated the deal on one side of the table have the same corporate parents as the most powerful members of the music publishing community ostensibly sitting on the other side of the table. Songwriter, composer and independent music publisher interests in these “negotiations” were given little if any consideration, and the proposed settlement was clearly framed without any meaningful consultation with the wider independent music creator and music publishing communities, both domestically and internationally.

How on earth can these parties be relied upon to present a carefully reasoned, arms-length “Settlement in Principle” proposal to the CRB under such circumstances, fraught as they are with conflicts of interest, without at least an opportunity for public comment? Further, how can these parties be relied upon in the future to argue persuasively that mechanical royalty rates applicable to on-demand digital distribution need to be increased as a matter of economic fairness (which they most certainly should be), when they refuse to seriously conduct negotiations on rates applicable to the physical product the distribution of which is still controlled by record companies (who not so incidentally also receive the lion’s share of music industry revenue generated by digital distribution of music)?

The ugly precedent of frozen mechanical royalty rates on physical product has, in fact, already served as the basis for freezing permanent digital download royalty rates since 2006. Is this the transparency and level playing field the community of songwriters and composers have been promised by Congress through legislation enacted pursuant to Article I, Section 8 of the Constitution?

The trade association for the US music publishing industry is supported by the dues of its music publisher members, the costs of which are often in large part passed along to the music creators affiliated with such publishers. It is thus mainly the songwriter and composer community that pays for the activities of that publisher trade association, a reality that has existed since that organization’s inception. Still, the genuine voice of those songwriters and composers is neither being sought nor heard. Further in that regard, we wish to make it emphatically clear that regardless of how the music publishing industry and its affiliated trade associations may present themselves, they do not speak for the interests of music creators, and regularly adopt positions that are in conflict with the welfare of songwriters and composers. Their voice is not synonymous with ours.

Unfortunately, the music creator community lacks the independent financial resources –in the age of continuing undervaluation of rights, rampant digital piracy and pandemic-related losses–to rectify these inequities by expending millions more dollars to achieve full participation in CRB legal and rate-setting proceedings. Clearly, such an inequitable situation is antithetical to sound Governmental oversight in pursuit of honest and equitable policies and results.

In the interests of justice and fairness, we respectfully implore the CRB to adopt and publicize a period and opportunity for public comment on the record in these and other proceedings,especially in regard to so-called proposed “industry settlements” in which creators and other interested parties have had no opportunity to meaningfully participate prior to their presentation to the CRB for consideration, modification or rejection. In the present case, hundreds of millions of dollars of our future royalties remain at stake, even in a diminished market for traditional, mechanical uses of music. To preclude our ability to comment on proposals that ultimately impact our incomes, our careers, and our families, simply isn’t fair.

Finally, we request that this letter be made a part of the public record of the Phonorecords IV
proceedings. We extend our sincere thanks for your attention to this very difficult conundrum
for music creators, and further note that your consideration is very much appreciated.

Respectfully submitted,

Rick Carnes
President, Songwriters Guild of America

Ashley Irwin
President, Society of Composers and Lyricists
Officer, Music Creators North America Co-Chair, Music Creators North America

List of Supporting Organizations
Songwriters Guild of America (SGA), https://www.songwritersguild.com/site/index.php
Society of Composers & Lyricists (SCL), https://thescl.com
Alliance for Women Film Composers (AWFC). https://theawfc.com
Songwriters Association of Canada (SAC), http://www.songwriters.ca
Screen Composers Guild of Canada (SCGC), https://screencomposers.ca
Music Creators North America (MCNA), https://www.musiccreatorsna.org
Music Answers (M.A.), https://www.musicanswers.org
Alliance of Latin American Composers & Authors (ALCAMusica), https://www.alcamusica.org
Asia-Pacific Music Creators Alliance (APMA), https://apmaciam.wixsite.com/home/news
European Composers and Songwriters Alliance (ECSA), https://composeralliance.org
Pan-African Composers and Songwriters Alliance (PACSA), http://www.pacsa.org

cc: Ms. Carla Hayden, US Librarian of Congress
Ms. Shira Perlmutter, US Register of Copyrights
Mr. Alfons Karabuda, President, International Music Council
Mr. Eddie Schwartz, President, MCNA and International Council of Music Creators (CIAM)
The MCNA Board of Directors
The Members of the US Senate and House Sub-Committees on Intellectual Property
Charles J. Sanders, Esq.

by thetrichordist

Press Release: Nordic Musicians Union Condemns Copyright Buyouts

[Editor T says “Looking at you, Epidemic Sound!”]

At its meeting on the 21st of April 2021, the Nordic Musicians Union, NMU, discussed the issue of copyright buyouts.


Technological development has been rapid in connection with digitalisation and globalization. This has challenged existing remuneration models that have been developed over a long period of time. This includes legislation, agreements, and collective management organisations. This rapid development has affected the income of performers in a very negative way.

We note that the compensation levels generated via digital uses are unreasonably low. Therefore, the NMU, at both national and international levels, have introduced the need for stricter legislation regarding the balance of power in negotiations. This includes mandatory rules that ensure a reasonable remuneration for digital uses. The European Commission has acknowledged this need in the 2019 Copyright Directive by introducing provisions on appropriate and proportionate remuneration to authors and performers and further provisions to improve the bargaining position of performers. The Directive shall be implemented no later than 7 June 7, 2021.


The NMU recognise that business models are emerging that work around the legislation by maximizing the use of musicians’ and artists’ performances whilst ignoring long-standing practices and established copyright systems. Instead, they pay one-time compensation, undermine the moral rights, and might even demand that musicians and artists leave their own collection management organisations.


NMU’s view is that musicians should be paid fairly and correctly, both for their labour and for their copyright based on the actual exploitation over time. The moral rights must be fully respected and the choice to be a member of one’s own collective management organisation must be defended.


Performing artists receive far too little of the value that music generates when it is used. During the Corona pandemic, it has become all too clear that musicians need the backing and support of legislators as well as the audience and the music industry.


The NMU strongly opposes wholesale of rights for any possible use, known or yet to be discovered, against a one-off payment. Complete buyouts are not the future business model for performers!

Signed:


the Swedish Musicians Union

the Swedish Union of Professional Musicians, SYMF

the Finnish Musicians Union

the Danish Musicians Union, DMF

the Union of arts and culture of Norway, Creo

the Icelandic Musicians’ Union, FIH

by Trichordist Editor

Who Are These Law Clerks, Anyway?

[This post first appeared on Artist Rights Watch]

By Chris Castle

If you’re not a lawyer, you may not be that familiar with law clerks. The title sounds very…well, clerical. But make no mistake, they are very powerful people who are largely unknown to clients but who are in the room with their judges, often every step of the way. As Wikipedia tells us:

A law clerk or a judicial clerk is an individual—generally an attorney—who provides direct assistance and counsel to a judge in making legal determinations and in writing opinions by researching issues before the court. Judicial clerks often play significant roles in the formation of case law through their influence upon judges’ decisions.

Yet, we know virtually nothing about them from the outside. If your case is heard, wouldn’t you want to know about everyone who was influencing the outcome of your case?

There are ethical rules that cover judicial clerks, such as Maintaining the Public Trust: Ethics For Federal Judicial Law Clerks issued by the Judicial Conference Committee on Codes of Conduct which admonishes clerks that the rules apply to them, too:

During your clerkship, you will provide valuable assistance as your judge resolves disputes that are of great importance to the parties, and often to the public. The parties and the public accept judges’ rulings because they trust the system to be fair and impartial. Maintaining this trust is crucial to the continued success of our courts. That’s why, although you have many responsibilities that demand your attention, you must never lose sight of your ethical obligations.

While that all sounds good, how would anyone ever know exactly what the story is with the clerks who are writing opinions with their judge or justice that directly affect the outcome of your case. As the ethical rules clearly state:

Although many of your obligations are the same as those of other federal judicial employees, certain restrictions are more stringent because of your special position in relation to the judge. Some obligations continue after your service to the court concludes.

But again–how would you ever know? If you go to the bible of the revolving door, Open Secrets, you’ll notice someone is missing…the entire judicial branch of our government.

Let’s take the easy one: Conflicts of interest. When does a law clerk have a conflict of interest? The rulebook tells us:

Canon 3F(1) of the Code of Conduct advises judicial employees, including law clerks, to avoid conflicts of interest. Conflicts arise when you—or your spouse or other close relative—might be so personally or financially affected by a matter that a reasonable person would question your impartiality. 

Note the disjunct: “personally or financially affected.” Either can give rise to a conflict or a question as to the clerk’s impartiality.

Conflicts come in several flavors, but two biggies are actual conflicts and potential conflicts, very routine inquiries in any conflict check. The ethical rules for clerks give examples of each: For example, an actual conflict is “The firm where you plan to work after your clerkship serves as counsel in a matter before your judge”. “Firm” in this case presumably applies to the situation where a company where the clerk plans to work appears before the judge.

A potential conflict includes “An attorney you met and talked with at a social function appears to argue a motion before your judge.” It’s not a far reach to think that the example would include a former professor, amicus, or author of an amicus brief filed or to be filed in a case before your judge.

But the point is, how would the litigants ever know any of these situations were an issue. Who keeps track of who knows whom among the clerks cloistered away in the ivory tower?

Let’s take a concrete example from the Above the Law Supreme Court Watch blog which handicaps U.S. Supreme Court clerk hires:

Joshua Revesz (Yale 2017/Garland) will be clerking for Justice Kagan in OT 2020. If his distinctive surname rings a bell, perhaps you’ve heard of his famous father: Professor Richard “Ricky” Revesz, former Dean of NYU Law School, and a former Supreme Court clerk (OT 1984/Marshall).

Readers of ARW may also recognize the name from a different place: The deep and abiding controversy over the American Law Institute’s failing Restatement of Copyright project. Professor Revesz joined the ALI in 2014 right after the noted Lowery insulter, Spotify lawyer, Lessig mentee and all round anti-copyright advocate Christopher Jon Sprigman joined the NYU faculty in 2013, presumably under then-Dean Richard Revesz.

Somehow–we don’t know exactly how–of all the lawyers in all the world, how ALI Director Revesz chose Professor Sprigman to run the Restatement of Copyright project, an undertaking that by all reports is devoted to weakening copyright and expanding loopholes for Big Tech. How do we know this? Because Sprigman pitched Revesz on the idea very soon after Revesz took over at ALI.

And the rest is history with everyone from authors to the Congress criticizing the very idea of a Restatement of Copyright; indeed, Professor Peter Menell of the UC Berkeley law school and Professor Shyamkrishna Balganesh of Columbia law school wrote an extensive critique that “explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading and seemingly biased results that risks undermining the legitimacy of the eventual product.”  (“The Curious Case of the Restatement of Copyright“).  In other words–it’s bad.

It will come as no surprise that I would go further–I think that is exactly the purpose of the Restatement (and Professor Samuelson’s Copyright Principles Project it descends from).

Hold on, you say–what does this have to do with Clerk Revesz and his judge, Supreme Court Justice Elena Kagan, the former Dean of Harvard Law School (whose remarks at the 10 year anniversary celebration of the Berkman Center are illuminating (home to both Lessig and poker aficionado and alleged counsel to copyright infringer Mr. Tennenbaum, Charles Nesson)).  Maybe nothing.

But isn’t it the kind of thing you might want to know about someone who was in close contact with someone who was deciding the outcome of your case?  Or was in close contact with other clerks who were deciding the outcome of your case?  How would you ever know what contacts the clerks had with anyone who might be influencing their case or who had donated money to an institution that benefited the family member of someone who had influence over your case?  Either directly, over cocktail party conversation or the dinner table?  I am not implying any skulduggery here, it could all have been very innocent or appear so as conflicts often do.  

Did it happen?  We don’t know, because when we go to Open Secrets there’s no judicial branch disclosure.  Now certainly judges have to file public financial disclosures.  (That’s how we knew about Judge Ware’s employment by Santa Clara Law School when he presided over the Google Buzz cy pres and ordered $500,000 be given to that university–“now-retired federal district judge James Ware rewrote the settlement to direct $500,000 to Santa Clara Law School, where he taught. The money went to fund a center for ethics.”)

While their judges are obligated to public financial disclosures, clerks do not have such obligations to litigants, much less to the public.  Disposition of conflicts disclosed by clerks seem to be handled in chambers without consulting the litigants.

Given the number of clerks in chambers across the country, the possibility for conflicts are significant.  When a lawyer has a conflict of interest that is waivable, she must give the client the option to waive the conflict with informed consent.  But if the conflict is not waivable or the client refuses to waive, the lawyer must decline the representation.  

Is there a corollary for law clerks?  There definitely are rules and there definitely are processes.  But are the litigants ever asked if they consent to a conflicted clerk working on their case?

I’ve never heard of it.  Maybe there should be such a process.

by Trichordist