[SoundExchange Chief Legal Officer Colin Rushing lays it down before Senate Judiciary]
Throughout the 80 years that the terrestrial radio performance right has been under discussion, broadcasters have argued in many ways that they are special and deserve different treatment than other business interests. Their arguments that their special status should result in them not paying performers– never valid – have now also been overtaken by events.
They say AM/FM radio is important because it is free, but they are no different than any other free ad-supported music platform available to consumers. They argue that providing public service announcements and news information is a reason to require music to subsidize their platform, and yet many music platforms provide these same services, not to mention that most digital music platforms are delivered over devices that provide local emergency notifications.
To the extent that AM/FM radio may be promotional, this is not a trait that sets them apart from other music services that compensate performers. Nor does it justify an uncompensated “taking” of musicians’ property. Rate-setting proceedings and licensing negotiations take promotional value into account as a matter of course, along with many other variables.
The potential for promotion exists in a lot of licensing arrangements. Television broadcast of a professional basketball game may promote a local team, but no one would suggest that the NBA should surrender the broadcast rights for free because of that “promotional value.” Why should music be any different?
As anticipated, several publishers have sued the Internet Archive run by the anti-artist technologist Brewster Kahle (a copy of the complaint is here, filed June 1 in the Southern District of New York). The lawsuit concerns the Internet Archive’s so-called “national emergency library” which in reality is another end run around the copyright law by a rich technocrat grasping for relevance in our view.
The complaint sums up the problem for Mr. Kahle’s latest anti-artist activism:
Defendant [Internet Archive or] IA is engaged in willful mass copyright infringement. Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites. With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books from Defendant.
The scale of IA’s scheme is astonishing: At its “Open Library,” located at http://www.openlibrary.org and http://www.archive.org (together, the “Website”), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.
This is a very Googley case so expect to find the usual suspects showing up to defend the Lost Cause if they’re not too busy holding on to the elite’s other piggery, Section 230 of the Communications Decency Act. ARW readers will remember that Spotify lawyer Christopher Sprigman and his mentor Lawrence Lessig were lead counsel on the losing side in Kahle v. Ashcroft (later v. Gonzales) which was Mr. Kahle’s unsuccessful challenge to the elimination of the renewal requirement under the 1992 Copyright Renewal Act in an attempt to revive that trap for the unwary. Professor Sprigman continued carrying Kahle’s water as a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the registration artifact (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”).
Although the docket for the publishers’ case against the Internet Archive doesn’t reflect a lawyer for the Internet Archive as yet, it would not be surprising to see these names crop up, not to leave out Daralyn Durie who has repeatedly led the charge against authors, artists, and all the other creators that Google chews up and spits out. Ms. Durie and her colleague Joseph Gratz proudly screwed over authors in the Google Books case with this kind of Orwellian logic according to Business Week:
Google attorney Daralyn Durie told Judge Denny Chin in federal court in Manhattan that authors and photographers would be better off fending for themselves because their circumstances varied widely, especially since the copyright issue for authors involves the display of small snippets of text.
Judge Chin, however, wasn’t buying this line of reasoning–which could easily have been summarized as “If it please the Court, Google would like to get away with it.” Because after all, “nothing says freedom like getting away with it” and we know that Google is all about Internet Freedom. We’ve never been too sure what “Internet Freedom” means, but it apparently includes attacking creator organizations (including unions). According to Business Week, “[t]he judge agreed that Google is ‘hoping that individual authors won’t come forward.'”
This is the kind of maneuvering we can expect (and don’t forget that Ms. Durie led the charge against the Beastie Boys on behalf of one Goldieblox in its 15 minutes).
The Internet Archive attracted the attention of Senator Thom Tillis who is currently conducting a series of hearings into the continued utility of the DMCA safe harbor for the richest companies in commercial history (aka the value gap). Senator Tillis wrote this letter to Mr. Kahle saying:
I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your “Library” is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.
As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.
Mr. Kahle, of course, responded and could not resist a snipe at the Authors Guild referencing the absurd Google Books case (although note that Internet Archive is being sued by the publishers, not the Authors Guild, so they are apparently not the “leading critic”):
The Authors Guild, the leading critic of the National Emergency Library, has been incorrect in their assessment of the scope and flexibility of the fair use doctrine in the past and this is another instance where we respectfully disagree.
And so, here we are. Lessig, Sprigman, Samuelson and Durie all have some new raw meat to chew on as authors are on the menu again thanks to the Silicon Valley crowd. It will be interesting to see who takes up Mr. Kahle’s cause this time.
For a deep dive into the issues, here’s a recent video from the Artist Rights Symposium II panel on the Internet Archive with the Anonymous Librarian, John Degen, David Lowery, Robert Levine, Jonathan Taplin, moderated by Terrica Carrington. The Anonymous Librarian is a real librarian at a major education institution who remains anonymous due to feared retaliation from Google and the Google-backed librarian trade associations.
According to admissions made in connection with his guilty plea, the defendant’s activities initially came to light in or about March of 2017, when the parents of a then six-year-old discovered that the minor had communicated with and created sexually explicit images at the request of another user on the social media application Musical.ly (now TikTok). Law enforcement investigators subsequently identified this user as Jacob Blanco…. In his interview with law enforcement, Blanco admitted that he communicated with at least 50 minors, an admission confirmed by the communications and images stored on his digital media.
MusicCanada commissioned an outstanding survey by Abacus Data using serious data-driven methodology to credibly measure the Canadian public’s experience with the COVID shut down of live music and expectation for reopening. Instead of glorified “Who’s Hot”-level casual polls you see cropping up here and there, The Locked-Down Blues: Canadians, Live Music and the Pandemic sets the gold standard for the kind of data-driven serious national opinion study that policy makers can actually use to plan how to get out of this corner.
The study measures many different factors, including the more intangible questions of what trust level fans will require before they come back to live music. Regardless of what distancing or contamination standards are imposed, none of that matters much if the fans don’t trust it enough to come out to hear live music in cities like Toronto and Austin.
For example, the study found this reaction:
DESPITE WANTING TO GO, CANADIANS, EVEN THOSE WHO LOVE LIVE MUSIC, SAY THEY WILL BE RELUCTANT TO GO BACK TO LIVE MUSIC EVENTS BEFORE A VACCINE FOR COVID IS FOUND.
Even if they are permitted to go to live music events, many Canadians, including those who love live music the most, will be reluctant to return for some time.
We asked respondents how soon they will feel comfortable enough doing several activities, once physical distancing restrictions are lifted. In almost all cases, fewer than 40% said they would feel comfortable in a few months or less. For most, the time horizon was much longer with many saying they may never feel comfortable again.
For example, 43% said it would take six months or more before they would feel comfortable going to a music festival or a concert in a large venue. Another quarter said they may never feel comfortable going to those types of events again.
I find it hard to believe that there’s going to be an appreciable geographical distinction between Canada and any other country on these issues. But this study provides a gold standard for other studies in other countries, all of which should be done and done using a robust and defendable methodology.
So let’s be clear–this study is giving you the hard truth. It is not some Chamber of Commerce hoorah or conclusion-driven clap trap. It also tells us that the idea that you can just turn the lights back on and people will flock to the clubs may be looking at the wrong ball. It has serious implications for the entire music industry across all genres.
But–it especially has serious implications for cities like Austin that get significant economic benefit from music tourism. Given that the City of Austin commissioned the Austin Music Census in 2015, another robust data-driven study that produced unwelcome dire conclusions, it is astonishing that the blinking red light in the Census was completely ignored. Not only were Austin musicians poorer than the City seemed to think they were, the entire local ecosystem was essentially dependent on live music. For example, streaming was a negligible source of revenue for Austin musicians–think maybe someone would have wanted to look into that issue as a matter of industrial strategy? And is there anything about the “Live Music Capitol of the World” that gives you a clue that maybe you might want to start thinking about why all the eggs were in that basket? As Mark Twain said, if you’re going put all your eggs in one basket, watch that basket. Or at least don’t ignore it.
Since the City did such a thorough job of ignoring the Census for so long, I wonder if they’re going to be able to figure out how to solve the current crisis. Or if maybe somebody actually would like Austin to turn into just another college town with a Google campus, self-driving cars busily scraping rider data while stacked up on I-35 and Uber Eats Your Soul.
We can be grateful to Music Canada for commissioning this study and getting it out at the perfect time for policy makers to have some meaningful data driven reality conducted in a manner that could stand up to peer review like the Austin Music Census. And show the world the gold standard for how to develop policies that actually solve a problem because you better know what the problem is you want to solve.
WASHINGTON, D.C. (May 8, 2020) – Leading music and film organizations today sent a new letter to leaders of Congress that highlights the ways implementation of the CARES Act has fallen short in assisting workers in need in the entertainment community and requests that these flaws in implementation be remedied in a new CARES Act COVID relief package.
The organizations said in a joint statement: “While we appreciate the efforts of lawmakers to meet the challenges of this pandemic, we need to ensure that our community is getting the aid they need to survive. Musicians are struggling to access the basic financial resources available due to conflicting and burdensome requirements in relief programs. Simply, there is a hole in this safety net that Congress must fix in the next version of the CARES Act.”
The letter lays out in stark terms the crisis that the live entertainment industry is facing due to the pandemic.
“We need help that only [Congress] can provide, in a way that recognizes the particulars of our industry. On behalf of the hundreds of thousands of us across the country, thank you for your understanding and your action.”
In the letter, the organizations point out the implementation of the Pandemic Unemployment Assistance program (PUA) has overlooked workers who have mixed income and report it on W-2 and 1099 forms. “In almost all cases that we see in every state, a minimum amount of W-2 income disqualifies a self-employed individual for PUA and significantly lowers the amount of assistance they receive,” the letter states. “PUA must be updated to recognize these different income streams and allow individuals to show their mixed sources of revenue for a full accounting of their annual income.”
The letter also describes concerns about the Paycheck Protection Program and the Economic Injury Disaster Loan program that were included in the first CARES Act.
The organizations who signed include the Artist Rights Alliance (ARA), American Association of Independent Music (A2IM), American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music Inc. (BMI), the Future of Music Coalition, Global Music Rights (GMR), the Music Artists Coalition (MAC), the Music Business Association, National Music Publishers’ Association (NMPA), Nashville Songwriters Association International (NSAI), the Recording Academy, the Recording Industry Association of America (RIAA), the Screen Actors Guild-the American Federation of Television and Radio Artists (SAG-AFTRA), the Society of European Stage Authors and Composers (SESAC), the Songwriters Guild of America, the Songwriters of North America (SONA), SoundExchange and many more.
The full text of the letter follows:
Honorable Nancy Pelosi Honorable Kevin McCarthy
Speaker Republican Leader
U.S. House of Representatives U.S. House of Representatives
Washington, DC 20515 Washington, DC 20515
Honorable Mitch McConnell Honorable Charles Schumer
Majority Leader Democratic Leader
U.S. Senate U.S. Senate
Washington, DC 20510 Washington, DC 20510
Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:
The broad and diverse American entertainment community would like to thank you for your continued efforts to provide assistance to those affected by the COVID-19 pandemic. The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and the subsequent “Paycheck Protection Program and Health Care Enhancement Act” were sincerely welcomed programs, particularly their essential coverage of independent contractors, sole proprietors, and other self-employed individuals who make up so much of the live entertainment workforce.
As you know, many of our jobs have not only vanished, they will be gone for quite some time. From on-set production to public performance, our work in the entertainment industry naturally requires close personal interaction and public gatherings. Even when business restrictions are eased, it will take much longer to restore the social interaction inherently necessary for the creative industries to operate.
For those of us in the creative field to survive – and recover – after this crisis, we must be able to access the full support intended by Congress. Thus, we would like to highlight a few ways that the CARES Act has fallen short in assisting those of us most in need and hope that it will be instructive in your continued discussions on any further federal funding assistance.
First, given the unique nature of our industry, many in our profession work from project to project and gig to gig, not only in multiple jobs but in various capacities. As a result, creators often find themselves working as employees receiving W-2 wages and as independent contractors (or otherwise self-employed) receiving 1099 income for performances, royalties, and other services. Unfortunately, implementation of the Pandemic Unemployment Assistance program (PUA) has overlooked workers with mixed income. In almost all cases that we see in every state, a minimum amount of W-2 income disqualifies a self-employed individual for PUA and significantly lowers the amount of assistance they receive. PUA must be updated to recognize these different income streams and allow individuals to show their mixed sources of revenue for a full accounting of their annual income.
In addition, those who work on location or perform on tour earn freelance income in multiple states, some of which does not come with a 1099. While some state agencies allow for this type of reporting, some do not. Congress’s intent is that such workers should be fully eligible for at least the minimum PUA amount, but state implementation does not fully reflect this intention. PUA must be updated to recognize these unique circumstances.
Second, the CARES Act does not recognize the full scope of small business arrangements prevalent within our industry. As the PUA mixed income issue and the actual operation of our industry make clear, the Paycheck Protection Program (PPP) should be sure to allow payments to self-employed individuals, including independent contractors. The workers in our industry cannot afford to be shut out of federal assistance on such a technicality and any future plan should recognize self-employed individuals as eligible payroll participants.
Third, SBA’s PPP guidelines on eligibility criteria and requirements for the self-employed are overly burdensome and restrictive. SBA requires a 2019 Schedule C as the principal document to determine eligibility and loan size, even though the IRS delayed the 2019 tax year filing deadline to July 15, 2020. This puts a burden on smaller, independent creators who must now scramble to secure professional accounting services so they can supply a 2019 Schedule C. More importantly, the SBA restricts self-employed applicants to loans that are sized according solely to net business income as reflected on a Schedule C. Net business income does not reflect the fact that professionals have significant overhead costs – mortgages, studio rentals, equipment costs, health insurance premiums, and other expenses.
The SBA should allow the use of 1099-MISC forms and consideration of health insurance costs in the calculation of loan amounts, as well as the 2018 Schedule C when a 2019 form is not readily available. SBA should calculate loans consistent with the intent of the CARES Act, which allows for consideration of any compensation to a sole proprietor or independent contractor.
Finally, the SBA has limited the Economic Injury Disaster Loan (EIDL) grant of up to $10,000 to only $1,000 per employee. This means self-employed individuals who do not have employees are unfairly penalized, even though they need immediate relief just as much as any other small business. Congress clearly lays out in the CARES Act that funds from the EIDL advance may be used for many purposes other than payroll.
And when it’s time to once again open the doors to live music venues and recording studios, music will continue to need help. The government must commit to provide adequate testing, contact tracing, viral treatments and a vaccine to ensure safety and restore public trust. We will also need clear national guidelines to facilitate touring and live performances from musicians and entertainers in venues of all sizes.
There is no sugarcoating this: the entire live entertainment industry has been decimated. We trade in imagination, but the reality of our situation is dire. Today, we eagerly share our craft when we can – through video streams, on social media, or from apartment balconies. But it is not a viable “work from home” solution and it will not sustain us. We need help that only you can provide, in a way that recognizes the particulars of our industry. On behalf of the hundreds of thousands of us across the country, thank you for your understanding and your action.
Sincerely,
Academy of Country Music (ACM)
Actors’ Equity Association
Alliance for Recorded Music (ARM)
American Association of Independent Music (A2IM)
American Federation of Musicians (AFM)
Americana Music Association
Artist Rights Alliance (ARA)
Artist Rights Watch
ASCAP
Association of Independent Music Publishers (AIMP)
BMI
California Arts Advocates
Christian Music Trade Association (CMTA)
Church Music Publishers Association (CMPA)
Country Music Association (CMA)
CreativeFuture
Digital Media Association (DiMA)
Folk Alliance International
Future of Music Coalition
Guild of Italian American Actors
Global Music Rights (GMR)
Gospel Music Association
The Harper Agency
International Bluegrass Music Association (IBMA)
Music Artists Coalition (MAC)
MusicAnswers
Music Business Association (MusicBiz)
Music Managers Forum – US
Musicians On Call
Music Technology Policy Blog
National Independent Venue Association
National Music Publishers’ Association (NMPA)
National Songwriters Association International
On Board Experiential
Paradigm Talent Agency
Recording Academy
Recording Industry Association of America (RIAA)
Reel Muzik Werks, LLC
Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA)
You may have gotten a version of this letter (below) from MusicReports on behalf of their new client Peloton. (How MRI came to be involved may have more to do with some of the unsavory aspects of the NMPA/HFA conduct alleged by Peloton than it does with the apparent fact that HFA hasn’t made arrangements to have paper NOIs and statements depending on which side of the moral hazard the issue comes up.) As Billboard also reported:
In its April 30, 2019, counterclaim, Peloton accused the publishers of anti-competitive behavior by engaging in a “coordinated effort” to fix prices and alleged that the National Music Publishers Association had conspired to prevent it from striking deals with the individual companies. A judge though dismissed Peloton’s counterclaims in January.
Which doesn’t mean that Peloton couldn’t appeal that decision, and that also doesn’t mean that NMPA probably really didn’t want them to. Which may explain why nobody is crowing about the money settlement.
Still, there’s a real question about how this MRI offer even came up in the first place. Both the Peloton case and the settlement of that case involves only 14 NMPA publishers according to Billboard, but carries the usual false spin no doubt coming from NMPA:
Peloton and The National Music Publishers’ Association (NMPA), the trade association representing all American music publishers and their songwriting partners, announced today (Feb. 27) that they have reached an agreement to “fully settled the litigation brought last year by 14 NMPA members.”
So for starters, this line is entirely false: NMPA does not represent “all American music publishers and their songwriting partners“. No matter now much aspirational slack you’re willing to cut someone who claims to represent you when they don’t (also known as gaslighting), there’s one context where you want to be really clear about that stuff–settling lawsuits in your name. This isn’t the first time they’ve been called on the issue–it also came up in the current appeal of the streaming mechanical rates (see George Johnson papers, “‘Copyright Owners’ [is a t]erm fashioned by NSAI and NMPA, that falsely suggests that they represent all copyright owners, rather than a significant
market share”.) NMPA has gotten in the nasty habit of telling Congress and the Courts they represent “all American music publishers and their songwriting partners.” So that’s bullshit for starters. Now what’s that thing that happens when you mislead a court about standing….? The memory will jog eventually.
But that issue is brutally relevant here because of the next question: How did a case involving 14 individual publishers get changed into what is essentially a class action settlement without a fairness hearing or court supervision? On whose authority? Of course, Peloton is free to make a voluntary future-facing license offer to anyone any time, but it’s interesting timing.
We haven’t drilled down on the court filings in the case–that’s coming. But we can only assume that MRI’s offer on behalf of Peloton is phrased the way it is because Peloton did not want NMPA or HFA to be involved in the licensing pitch or the administration of the licensing funds (you’ll see why in a minute). We haven’t seen the actual license agreement from MRI, but based on the deal points in their pitch letter, it does not appear that (1) the license is a settlement of past claims (but check that issue closely if you decide to opt in as it may be masquerading down in the boilerplate), and (2) there is a pool of money that is to be distributed to those who opt in–and if the pool is not paid out in full, the balance of the pool will be retained by Peloton and is not going to revert to the NMPA (or its members). In other words, it’s not an MLC-style black box.
By using this pool system, Peloton is able to cap their ultimate royalty payout for indies. For example, if the deal you never see with the 14 NMPA publishers (or others who have a direct deal) is a pay per play structure with no cap, and MRI offers you a share of a pool, there’s no cap in the pay per click flat rate structure and there is a cap in the pool. In fact, if you are getting a share of a pool that’s offered to tens of thousands of publishers, you may eventually start to go backwards once you hit the pool cap. Why? Because the more publishers that opt in, the smaller the share of the pool for any one song. Alternatively, the more hits there are, the smaller the share of the pool for the less popular songs. That may never happen, but it’s worth noting. That’s why this is kind of like a poor person’s class settlement without a fairness hearing. (Also why we have long advocated a per-play rate with no pool.)
And of course remember that this settlement only covers songs. Songwriter artists, ask how Peloton comes to license your sound recordings or be careful that the MRI song license isn’t masquerading as a sound recording license, too. There’s a few possible answers to that question, but be sure to ask.
Here’s the letter, we highlighted some stuff that requires futher explanation by Peloton:
Dear Publisher,
We sincerely hope everyone is keeping safe and well in these challenging times.
We are contacting you on behalf of our client, Peloton Interactive, Inc. (“Peloton”), with a license opportunity for their streamed fitness content solution, which allows subscribers to access world class instructor-led exercise and meditation classes through Peloton hardware devices and digital platforms.
This offer is the opportunity for your catalog to be featured in a platform that is part of a growing and supportive community. [What does “featured” mean? Can you be non-featured?]
Founded in 2012 and headquartered in New York, Peloton is the largest interactive platform that brings the energy and benefits of studio-style workouts to the convenience and comfort of home. With hundreds of classes produced monthly across twelve fitness disciplines, and a library of thousands of on-demand classes[that include thousands of songs] taught by a roster of elite instructors, Peloton delivers real-time motivation and curated playlists from the world’s greatest artists and writers. [This sounds like pop hits, right?] The brand’s immersive content is accessible through the Peloton Bike, the Peloton Tread, and the Peloton App, which is available for both iOS and Android, accessible via most tablets, mobile devices and computers. [How is that different than webcasting or Spotify?]
Peloton is changing the way people think about health and wellness and are motivated to work out, and music is a key component of their programming, helping the instructors deliver engaging and inspirational classes in Peloton’s home fitness ecosystem. With over 2,000,000 monthly users and a comprehensive, socially-connected experience geared towards helping members reach their personal fitness potential, each class is designed to be both efficient and irresistible. [If music is a key component…they must be paying a lot?]
The main deal points of Peloton’s license offer are as follows [what are the others?]:
Grant of Rights: Peloton is seeking the right to create, store, transmit, and publicly perform compositions in and in connection with fitness videos on its hardware and digital platforms. [How is this not a public facing music service?]
Royalty: Licensor’s share of two revenue pools, one based on plays of your compositionsby users of the Peloton Bikes, Peloton Tread, and other “hardware,” and the other based on plays of your compositions by users of the Peloton App, each of which are calculated at different rates depending on currency of the territory involved (please see the license for details). [Why do the rates depend on the currency? How are these tracked? Probably not very well since they got sued.]
Accounting & Payment: 60 days following the applicable calendar quarter. [60 days? 60? Really? And why not monthly? They left out an audit right, check the license. We can almost guaranteed there is no audit right.]
Territory: Worldwide [how does this work with foreign societies?]
Term: Three years following the Effective Date with one year auto-renewals.
Takedown Rights: As soon as possible, but in no event later than 30 days of receipt of notice or the identification of the relevant Composition; provided, that the takedown request is made on a non-discriminatory basis. [This is essentially a waiver of statutory DMCA takedown rights (if DMCA even applies to Peloton) and creates a new safe harbor for Peloton. Bad bad bad….]
To review and consider Peloton’s license offer:
Click HERE to log into your MusicReports.com account and review the proposed license agreement. If it is acceptable to you, simply check the box to confirm you have read the agreement, then click the “I Agree” button to accept the terms. You can then download a full copy of the agreement from the “My Licenses” page in your account.
If you need help accessing your account or setting up an account for the first time, contact RoyaltyServices@MusicReports.com
If you have any questions specifically about the opt-in license offer, please send your inquiry to LicenseOffers@MusicReports.com
Best regards,
Music Reports, Inc.
What it looks like is that Peloton is making a pitch that is not approved by any court that is going out to all the publishers (and indie songwriters) that are not represented by NMPA. Which based on the Spotify, pending and unmatched and YouTube settlements implies that there may–may–be another bucket of settlements that the NMPA did have the authority to make that were both retroactive and future licenses. But you’ll never know that.
The fact of the Peloton offer is further confirmation of the reality that the NMPA does not “represent” (as in have the authority to speak or negotiate for) “all” songwriters and publishers. If they did, wouldn’t this be structured like the Spotify and pending and unmatched settlements?
The really great news is that the head of music for Peloton is going to be speaking at the AIMP webinar today and hopefully he can answer these questions. Starting with whether Peloton infringed indie publishers copyrights.
Reality is that Peloton is trying hard to get it right, and should never have been sued in the first place, particularly when there are actual criminals like TikTok in the market that has no publishing licenses whatsoever. There’s where your litigation budget should be getting spent, not chasing exercise bikes.
MTP readers will no doubt have been following the absurd “National Emergency Library” scam that anti-artist activist Brewster Kahle is pushing to the great satisfaction of the BrewBros. BrewBros based the “National Emergency Library” on a “superpower” interpretation of fair use (no, that’s really what they said) that is yet another example of a very Googlely weaponization of fair use.
The BrewBros have caught the attention of Senator Thom Tillis, chair of the U.S. Senate Judiciary Committee Subcommittee on Intellectual Property, who sent this letter into the heart of darkness today, which should finally provoke the Google lobbyists to come out into the daylight (looking at you, Matt):
Mr. Brewster Kahle
Founder and Digital Librarian
Internet Archive
300 Funston A venue
San Francisco, CA 94118
Dear Mr. Kahle:
I write to you as Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, following the Internet Archive’s recent announcement of its National Emergency “Library” initiative amid the coronavirus pandemic. The Subcommittee has jurisdiction over our nation’s intellectual property laws, including copyright law. As you may know, in February my Subcommittee began a year-long review of the Digital Millennium Copyright Act with an eye toward reforming it for the twenty-first century.
I recognize the essential nature of books and publishing efforts during these challenging times. As schools, libraries, and bookstores have closed their physical locations across the nation, continued access to books is important to ensure that students and teachers have the materials they need for remote learning. It is also important that the general public has access to various types of books and written materials. I have been encouraged to see authors, publishers and other copyright owners ease these struggles of students, parents, educators, and the general public. Among other efforts, they are providing valuable content and online courses for free, providing flexible licenses for distance learning and enjoyment, and extending access to audiobooks and ebooks. These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest.
As you can see, I deeply value access to copyrighted works, but that access must be provided within the bounds of the law-even during a national emergency. I understand that your “Library” will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users. I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your “Library” is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.
As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in the New York Times that: “Authors have been hit hard by the pandemic …. It could be a career-destroying time for some authors, many of whom are struggling to make a living.” At some point when the global pandemic is behind us, I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers.
Sincerely,
Thom Tillis
Chairman
Subcommittee on Intellectual Property
If you’ve ever seen the classic musical The Music Man, you will remember the stereotypical character of “Marian the Librarian” who was romanced by the grifter Harold Hill. When it comes to the Internet Archive, we’re way past Marian but we have a whole new character in the role of grifter.
Brewster Kahle is not likely a name you recognize. But he is definitely well-known to the digital elites–which we know because his picture shows up in the 2000 version of the Billionaire’s Dinner rubbing elbows with the cognoscenti including fellow diners Nicholas Negroponte of MIT and MIT patron the late Jeffrey Epstein. Somewhere along the line Mr. Kahle seems to have gotten very rich or perhaps richer still. And he also founded Alexa and the Internet Archive which is our focus in this post because of the Archive’s announced “National Emergency Library.” We’ll come to that effort presently, but first let’s consider Mr. Kahle’s history in the copyright context.
A Man With A Mission Meets A Dandy on the White Horse
Mr. Kahle was and is a man with a mission in the mold of his fellow pirate utopian and EFF founder, John Perry Barlow. Less flamboyant to be sure, but cut from the same anti-copyright cloth, Mr. Kahle has attracted literally the same crew of Lost Cause dead enders. These dots will be very familiar. It’s all rather Googlely and Mr. Kahle has shown himself to be as close to Google’s mission as one is to two. Whether revolutionary leader or useful idiot, Mr. Kahle has proven his value to Google again and again over some two decades.
Copyright students may remember Mr. Kahle from 2006 as the plaintiff in Kahle v. Gonzales, one of the cases where Lessig did a brilliant job of making the predictably losing argument as an extension of yet another losing argument from Lessig’s cherished Eldred case. (Has Lessig ever won anything that Google didn’t pay for?)
Mr. Kahle challenged the Copyright Renewal Act of 1992 that eliminated once and for all the renewal requirement from the U.S. 1909 Copyright Act that was held over in the 1976 Copyright Act for certain registrations. (Lessig was joined as co-counsel in the Kahle case by his protege Professor Christopher Sprigman; Sprigman is a leading anti-artist zealot. He currently represents Spotify in the Nashville cases and is leading the American Law Institute’s embarrassing and scandalous “Restatement of Copyright” trojan horse campaign that has been thoroughly discredited.)
Kahle, Lessig and Sprigman essentially argued then and now for a renewal requirement to make copyright renewals an opt-in system rather than an opt-out system. That meant that authors would have to take an affirmative act to renew their copyrights after an initial term. As Lessig writes back in 2003, “The revival of a registration requirement would move content into a public domain quickly….There are many who have written brilliantly about what is right in this context….But the hard problem is how to make the right real. That is what this movement needs now.”
You get the idea. The Lost Cause is born. And Kahle was apparently only too happy to finance “the movement” with a younger Lessig imagining himself on a white horse leading the mob. Younger but just as much the tiresomely self-righteous Google fan boy and thin-skinned ideological dandy. Because the Lost Cause was “right”. Beware men on white horses waiving the privilege of “what is right” backed by the superpower billionaire boys club. And it worked for a while, but the problem with leading a mob is that you have to give the mob somewhere to go but most of all success. Lessig provided neither. Instead, he provided failure after failure.
It must be said that a creator’s failure to comply with Mr. Kahle’s sought after formalities of registration and renewal (unique to America, by the way) would allow the Big Tech superpower benefactors of Lessig, Sprigman and Kahle to get lots of free stuff. Like superpower privilege that induced a mass taking by the National Emergency Library, Big Tech superpowers could exploit those unrenewed copyrights without a license or payment to the authors, also known as the public domain, public knowledge, or any of the other shibboleths that mask the very traps for the unwary that Congress wanted to prevent in the 1992 legislation. (In another proof of the Lost Cause, Kahle’s lawyer Professor Sprigman was later a member of Pamela Samuelson’s “Copyright Principles” project and co-authored its paper that also advocated for the very registration requirement that they resoundingly lost in the Kahle case (see Sec. IIIA of paper, “Reinvigorating Copyright Registration”.)
For those reading along at home, procedurally the odd and rather desperate signpost of the Kahle case was that Lessig largely based Kahle on Eldred which he lost in the Supreme Court. When Kahle got to the 9th Circuit, this oddity was not lost on the judges who held–in possibly the least suspenseful ruling of the decade–that “[Lessig, Sprigman and Kahle] make essentially the same argument [in Kahle], in different form, that the Supreme Court rejected in Eldred. It fails here as well.”
Kaboom.
So Kahle got into trouble at 9th Circuit. As Harold Hill might warble, that’s trouble with a T that rhymes with P and that stands for “phool.”
Kahle’s Lost Cause and the National Emergency Library’s Fair Use Superpower Privilege
Yet despite continued losses, re-imposing a copyright registration requirement has become the Lost Cause of the anti-artist crowd. Not only has Lessig pushed this hustle, but its proponents include Pamela Samuelson and Christopher Sprigman, so we can only assume that the controversial “Restatement of Copyright” promoted by Samuelson and written by Sprigman will no doubt devote some ink to this topic. Indeed, we saw Samuelson raise registration in her most recent testimony in a bizarre hearing before the Senate IP Subcommittee.
And we also see a version of it in the Internet Archive’s absurdly transparent lawlessness masquerading as fair use with its “National Emergency Library” which takes post-disaster profiteering to a whole new level.
In a nutshell, the Internet Archive is seizing upon the COVID19 global crisis to make digital copies of books of dubious provenance available for free and without their flimsy “waitlist” requirement. They managed to get a bunch of libraries to sign a letter saying how groovy the Internet Archive is for graciously aiding the world–if this sounds familiar, it is very reminiscent of the Google Books messaging as the “digital library of Alexandria” and other drivel. (See the timeless Google and the Myth of Universal Knowledge: A view from Europeby Jean-Noël Jeanneney, then president of France’s Bibliothèque Nationale.)
As someone who grew up with both hurricanes and earthquakes, I have a viscerally embedded disgust for those grifters who exploit human misery for their own private agenda, be it profiting in cash or distorting the fair use defense beyond recognition to confer a cash equivalent benefit. Both are equally loathsome forms of looting and under the circumstances may well be a form of price gouging. If proven, that’s a crime in most states. Indeed, if imposed by state authority, such as a state library, it may well be found to be an impermissible form of eminent domain, or a taking. There’s that word again.
The National Emergency Library: Leap of Faith or Superpower Privilege?
What makes a casual interest into a full-blown negationist Lost Cause ideology is the leap of faith that the dead ender’s ill conceived campaign was actually “right” all along. “Right” as in “self-righteous.” (A healthy rasher of narcissism is also a nice-to-have.) You know, defending consumer rights against the aggression of copyright maximalists. You see, it was only the privileged Bad People conspiring against them that gypped the righteous Good People of the victory to which they were entitled. In fact, Mr. Kahle says as much in the Internet Archive blog announcing the “National Emergency Library”:
“The library system, because of our national emergency, is coming to aid those that are forced to learn at home, ” said Brewster Kahle, Digital Librarian of the Internet Archive. “This was our dream for the original Internet coming to life: the Library at everyone’s fingertips.”
And there it is, the Lost Cause defined. The indefinite “our”. Who exactly is “our” or “us”? The Good People. The Right People. The movement people. Whose superpowers you oppose at your peril you others. You authors. Because “our” national emergency justifies “our” fulfillment of “our dream.”
The Good People share that “dream” of “ours” as we are told in the Archive’s blog post cum press release:
“Ubiquitous access to open digital content has long been an important goal for MIT and MIT Libraries. Learning and research depend on it,” said Chris Bourg, Director of MIT Libraries.
The Googley Expansion of the Fair Use Superpower as Eminent Domain Taking
And of course the central rationale for why the Archive could rip off over a million books is…wait for it…fair use. But a very super duper version of fair use that you may not have encountered before. This is a super duper opinion shared by 300 or so librarians, many of whom appear to be employed by state-owned libraries. They signed a letter promoted by the Internet Archive that puts their taxpayer subsidized employment right on the line.
You have to take a step back and look at the National Emergency Library in the larger context of the continued distortion of fair use by Google and its cronies as we recently argued in an amicus brief supporting Oracle in Google v. Oracle, the long-running copyright case now pending before the Supreme Court that is straight out of Bleak House.
Unfortunately, like the DMCA, Section 230 and so many other grotesquely unfair benefits that Big Tech superpowers grasp for themselves, the only way to fight back in the chaos of the current pandemic is to literally fight back. Big Tech’s superpower billionaires are doing just fine as authors struggle even more than before the time of the virus. But these people are more than willing to capitalize on the current crisis to distort copyright exceptions like fair use, just like Google is forcing users of its Verily coronavirus test to open a Google account and give up their health data.
I for one find it very odd that 300 or so librarians could all agree in a matter of hours on a complex legal opinion regarding expanding the contours of fair use–unless that opinion were written for them by someone they already knew. Such as their lobbyist, for example. Maybe not, but it does seem it’s something that state Attorneys General should look into as it applies to their librarians. Assuming that signing up for the scheme is not simply aspirational and they are all actually participating in the cabal, these librarians are incurring liabilities for their employers and quite possibly the taxpayer. If state libraries are indemnifying the Internet Archive, that indemnity may well be impermissible under their respective state laws–and that’s something that ought to interest attorneys general, as would the converse failure to obtain indemnity.
On the other hand, one of the legal arguments used as encouragement to librarians to sign onto the legal opinion was offered by one Kyle Cortney (securely employed by Harvard University) based on the privilege of “superpowers.” Yes, that’s right:
[L]ibraries and archives have “superpowers” under the copyright law that allows us to supply our communities with access to materials for research, scholarship, and study….Before I get to the TEACH Act, Section 108, or any other superpower – first and foremost, we must talk about fair use. While this isn’t a library superpower – fair use is for everyone! – it certainly falls to the libraries and archives, in many circumstances, to be the champions of fair use on campus (and bust any fair use myths!)
See? “Our dream”, “our national emergency”, “our superpowers.” And “our” powers are so “super” that “we” will shove those superpowers where the sun doesn’t shine in the middle of the Harvard Yard. All based on a superpower of blatant distortions of fair use subsidized by the endowment of the richest university in the history of the world. But understand this, you will win this argument about the same time that Harvard refunds tuition in the time of the virus. Unless you are willing to go to the mattresses. And if you’re thinking these superpowers are on their knees begging to be sued, you very well may be correct.
That “superpower” privilege may be how they roll at Harvard, but what I’d like to know is how many state AGs have signed up for the superpower theory? Such as the Attorneys General of Illinois, Kansas, Michigan, Virginia, North Carolina, Ohio, Pennsylvania, California, Washington, New York, Indiana, Massachusetts, Florida, Minnesota, Texas, and Idaho.
Maybe the next sound they hear will be sad trombones, all 76 of them.
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?
A host of organizations have come together to create MusicCovidRelief.com, a website that explains the ins and outs of the CARE Act, the pandemic relief bill.
Spend some time on the site and learn about the many cash resources made available by the historic legislation. The good news is that self employed and small business can take advantage of funds, but move quickly because the funds are available on a first-come first-served basis.
Big thanks to RIAA for putting this together so quickly. Visit MusicCovidRelief.com to know what’s on offer. You may also find the return of the Carte Musique to be of interest as in this post from Chris that is getting uptake in some policy circles it limits the purchasing power to tracks bought from a local retailer. Again–Carte Musique cannot be used at Amazon but can be used to buy directly from a participating store. The Carte could be cosponsored by big brands even for tours with tour branding.
The Trichordist 
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