Guest Post: Superpowers In River City: Anti-Artist Activist Brewster Kahle’s Revealing “National Emergency Library,” the Faux Triumph of Privilege

by Chris Castle

[This post first appeared on ArtistRightsWatch]

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 Europe by 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.

Ah yes, MIT’s goal must be extra groovy, right?  I’m sure Joi Ito (of Creative Commons fame among other rewards) thought so when he was taking Jeffrey Epstein’s money with MIT’s blessings.

What bunk.

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.

by trichordist

Open Letter to Brewster Kahle From Anonymous Librarian

Brewster Kahle

Photo Credit Joi Ito CC

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.

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

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?

-Anonymous Librarian.

by Dr. David C Lowery

MUSICCOVIDRELIEF.COM EXPLAINS CARE ACT AND OTHER PANDEMIC RESOURCES FOR THE MUSIC BUSINESS

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.

by thetrichordist

12 Questions For Boston Public Library President On “Emergency National Library” Endorsement

David Leonard is the President of Boston Public Library.  He and his library have endorsed the Internet Archive’s creation of a so-called “National Emergency Library.”  The Library will make available copies of 1.4 million books without permission or compensation to the authors. Forget the nonsense about “eliminating waitlists” that’s a not very clever way of trying to hide the fact they want to make unlimited copies of authors’ works with no permission or royalties.

My take on this is it’s an opportunist attempt by anti-copyright ideologues backed by Silicon Valley firms to exploit the COVID-19 crisis.  It honestly makes me sick to my stomach that Americans would treat their fellow countrymen this way in a crisis.  However, I am not surprised.  The Internet Archive has long been Google’s lapdog. Shameless corporate shills, no one should be surprised to discover they are disgusting opportunists. Brewster Kahle the founder of the Internet Archive is just another Silicon Calley scammer, posing as a selfless warrior for the public good. Meanwhile, he is sitting on over 100 million dollars in his related Kahle-Austin Foundation. Who gave him that much money? What on earth did he do to make himself that rich? I mean aside from policy washing for Silicon Valley billionaires.

However I was frankly surprised to see Boston Public Library President David Leonard sign on to support this dubious endeavor.  I’ve had a couple email conversations with him, and although I don’t agree with many of his copyright positions, I found him intelligent and willing to engage in a polite manner.  He doesn’t seem like the kind of person that would get involved in this sort of sketchy policy washing by Silicon Valley elite.  Nor does he seem like the type of person to exploit a crisis the way the Brewster Kahle might.  Perhaps I’m missing something here. Therefore I have chosen to direct my questions about the “Emergency National Library” to Mr. Leonard as he has been reliable and helpful in the past.

Questions for David Leonard President of Boston Public Library

Q1. How is this fair use? It seems to fail on all four elements.  The entire work is copied. HIghly unique fictional works copied. It competes directly with/is identical to commercially licensed royalty generating services.  Technically Internet Archive is a non-profit but in 2017 it took in 17 million in grants and donations. Board members receive six-figure salaries. The closely related Kahle Austin Foundation is sitting on $109 million dollars. Hardly a neighborhood branch library or storefront church. 

A.?

Q2. If you believe that distributing these authors’ books without permission and compensation is “fair use” why doesn’t the Boston Public Library directly digitally distribute these books instead of relying on the Internet Archive?  Is this a sign that the Boston Public Libary finds the fair use claim dubious and wants to avoid litigation?

A.?

Q3. The statement makes the argument that the “National Emergency Library” is fair use because this is a national emergency. The statement proposes a time limit on how long this permissionless royalty-free lending will go on further emphasizing this is “temporary” fair use.  Under US copyright law or jurisprudence, how does something become fair use in an emergency when it is not normally fair use? 

A.?

Q.4 If this is legitimate fair use why are authors allowed to opt-out?  Again why shouldn’t we read this as an admission this is a dubious and opportunistic endeavor likely to end in litigation?

A.?

Q.4 If most poor students are unlikely to have high-speed internet access at home how does this help them? Doesn’t this disproportionately benefit wealthier families?

A.?

Q.5 Are you personally still receiving a salary from Boston Public Library during this crisis? It seems to me most people who signed the letter are probably still receiving their salary. Why should authors that on average make $20k a year be forced to carry the entire financial burden of the National Emergency Library? To show good faith would you agree to forgo say 1/2 your salary till this crisis is over?

A.?

Q.6 Fair use is a North American only legal concept.  With a few exceptions, it is not an available defense in the rest of the world. We tested the National Emergency Library in a number of jurisdictions. It appears to be available globally. How is the library legal in say Germany, Japan, Sweden or France?  By endorsing, publicizing and linking to it aren’t you breaking the law in many of these countries?

A.?

Q.7 Have you or any of the cosigners considered you are advocating the violation of a number of our obligations under intellectual property and trade treaties?  Ultimately the US taxpayer or US businesses would end up paying the penalties (See penalties applied to the US for Fairness in Music Licensing Act). How is that fair?

A.?

Q.8 The 2008 Higher Education Opportunity Act puts strict obligations on institutions that receive federal financial aid to actively discourage copyright infringement.  Now it seems we have dozens of university libraries seemingly encouraging copyright infringement.  Do you think this is wise? Some jackass like me could file a complaint with the Department of Education that they would be obliged to investigate.  Thoughts?

A.?

Q.9 How committed to this cause are you? Will, you use city resources to defend Internet Archive in the event of legal action by authors?  For instance by filing amici curiae? If so how will Boston or Massachuesettes taxpayers benefit? 

A.?

Q.10  Will BPL receive stimulus funds from the federal government? If so will you be devoting any of these funds to help poor students without access to books? Can you detail these efforts? Show authors you are just as committed to spending your funds as you are to giving away their work? 

A.?

Q.11  Professor Devlin Hartline at GMU Law commented on twitter that Internet Archive is “literally committing criminal copyright infringement under Section 506(a)(1)(B).”  He tweeted that at the DOJ. Hartline is not a bomb-thrower like me.  He’s normally pretty reserved.  Does this give you pause? Does this make you rethink your endorsement? 

A?

Q.12 It’s obvious that this campaign and document were professionally organized. Can you tell us who led this effort? Who came up with the idea? 

A?

We hope to hear from you soon.  We will publish your reply completely unedited.  Thanks for indulging us.

 

 

 

 

 

 

 

 

 

by Dr. David C Lowery

Guest Post Blake Morgan: The battle is upon us, but we will not give up

Reprinting Blake Morgan’s inspirational social media post from earlier today:
To my sisters and brothers in NYC music, and beyond…
The Irish tell the story of a man who arrives at the gates of heaven asking to be let in, and Saint Peter says, “Of course! Just show us your scars.” The man says, “But…I have no scars,” and Saint Peter answers, “What a pity. Was there nothing worth fighting for?”
We musicians are used to fighting. For our livelihoods, for our families, for our hopes and dreams, for our calling. For our profession.
In recent years we’ve fought battles we’ve neither sought nor provoked. Battles against powerful corporate forces attempting to devalue music’s worth, streaming companies attempting to lower our micro-penny payments even further, and AM/FM radio which, in the Untied States, makes billions of dollars each year off of our music while paying nothing––zero––to artists for radio airplay.
But now we face a different battle.
Musicians’ road ahead is narrowing because of the crisis of the present. However challenging the future of my profession would have been without the current pandemic, it’s becoming clear now that for music, the future isn’t what it used to be.
Like so many in this country and around the world, we’re facing economic hardships, uncertainty, and danger. Unlike so many others, musicians are facing the tomorrows to come without health insurance, without eligibility for unemployment insurance, without any savings, without any system of fallbacks. Without a way to bounce back. Our “gig economy” has failed to bolster the already-weakened financial options of working musicians.
We will have to fight like never before, in a landscape which––even once this immediate health crisis subsides––we may not even recognize.
The battle is upon us, but we will not give up.
We will not give out.
We will not give in.
We will hold fast. To each other, and to ourselves.
We will light the torches of our inspiration, and we’ll meet these challenges with determination.
And years from now, should someone ask how we got these well-won scars, we’ll say, “From fighting.”
#IRespectMusic
by Dr. David C Lowery

#DoStuffAtHome To the Rescue!

You probably know DoStuff as Do512 or DoLA or another of their many handles as the premier local events website.  Now that artists are starting to hit the virtual venue space as a real thing, DoStuff has responded with DoStuffAtHome.com which is a directory of the many virtual shows around the country.

A good example is DJ Mel’s Living Room Dance Party which features a DJ set by Austin’s own DJ Mel which he hosted on his Facebook page and draws over 6,000 people for a fabulous community dance party on Saturday night.  And he raised money for good causes with a $10,000 boost from Tito’s Vodka.  Shout out to Tito’s!

Check it out, list your event, keep the faith.  This will be our finest hour.

by thetrichordist

Press Release: @SoundExchange, entertainment community ask Congress for financial relief during coronavirus pandemic

PRESS RELEASE

March 20, 2020

Today, SoundExchange joined organizations from across the entertainment community to ask Congress to address the unique nature of our community’s work when it develops an aid package in response to the coronavirus pandemic. Payroll tax holidays, paid leave, and other types of assistance have been raised for consideration by our nation’s leaders, but they may never reach the many workers in the music industry who don’t have a single, long-term employer.

You can find the full text of the letter below or download a pdf here.

—

Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:

As united representatives of the large and diverse American entertainment community, we offer our sincere gratitude for your immense efforts to address the COVID-19 pandemic and to provide much needed aid.

We understand the sacrifices our country is making and appreciate our shared responsibility. We will make the necessary adjustments to our lives but, unfortunately, there is no option for many in the entertainment community to work from home. Our home is on the road, on the studio lot or in the theater, in venues across the country that must close during the pandemic, in front of live audiences or with cast members who cannot gather. For now, those performances – and our jobs – have vanished, along with the costly and personally devastating investments we can never recover. Without help, we know that many in our community will find themselves homeless, hungry, and unable to tend to their medical needs.

The economic pain cuts even deeper, touching not only performers and musicians, but also managers, producers, promoters, stagehands, drivers, and countless others who are feeling the immediate repercussions of this new reality. This unprecedented economic loss caused by canceled performances and production shutdowns is being played out in bars, nightclubs, theaters, stadiums, concert halls, studios, and festivals in every state, sidelining thousands of workers.

The entertainment community will do what it can to support its members, but this moment calls for the unmatched capabilities of Congress. As you navigate the difficult path to providing necessary aid to distinct sectors of our economy, we ask that you specifically address the unique nature of our work. Payroll tax holidays, paid leave, and other typical assistance may never reach many in the entertainment community; in fact, direct financial aid remains one hopeful – and perhaps best – solution to replacing lost income and offering some semblance of economic sustainability. 

We propose a similar benefit to the Emergency Paid Leave in Division C of HR 6201, along with emergency unemployment insurance access, available to those who cannot work due to a canceled performance or a production shut down. This fund and expanded unemployment insurance access and benefits would ensure that hundreds of thousands of families across the country can continue to pay rent, put food on the table, and care for their children during this public health emergency. In addition, we encourage you to be as inclusive as possible when crafting emergency paid leave, tax credits, and other programs – the unique nature of our industry means rules that require beneficiaries to have had a single, long-term employer will simply leave our entire workforce behind.

We all look forward to the end of this crisis. Certainly, entertainment will help us get through it. But we must take care of the many people in the American entertainment community who will help us heal, rebuild, and bring us back together, in public and in spirit.

Thank you very much.

Sincerely,

Actors’ Equity

Alliance for Recorded Music (ARM)

American Association of Independent Music (A2IM)

American Federation of Musicians (AFM)

Americana Music Association

Artist Rights Alliance (ARA)

The Azoff Company

The Broadway League

California IATSE Council

Christian Music Trade Association (CMTA)

Country Music Association (CMA)

Gospel Music Association (GMA)

CreativeFuture

Department for Professional Employees, AFL-CIO (DPE)

Digital Media Association (DiMA)

Directors Guild of America (DGA)

Entertainment Union Coalition

Full Stop Management

Global Music Rights (GMR)

Independent Music Professionals United (IMPU)

International Alliance of Theatrical Stage Employees (IATSE)

International Bluegrass Music Association (IBMA)

Live Nation

Music Artists Coalition (MAC)

Music Business Association (MusicBiz)

Music Managers Forum – US

Nashville Songwriters Association International (NSAI)

National Music Publishers’ Association (NMPA)

Paradigm Talent Agency

Recording Academy

Recording Industry Association of America (RIAA)

Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA)

SESAC

Songwriters of North America (SONA)

SoundExchange

Southern Gospel Music Guild

United Talent Agency (UTA)

William Morris Endeavor (WME)

Writers’ Guild of America, East

by thetrichordist

Google’s Charm Offensive Comes to Senate IP Subcommittee

Guest post by Chris Castle

[This is a version of a letter I sent to the Senate Subcommittee on Intellectual Property on March 10 to call attention to various discrepancies in the proposed witness list, especially the undisclosed presence of the Pirate Party at a hearing at the world’s greatest deliberative body.  And typically, Julia Reda never disclosed her affiliation in her witness bio or in her written testimony.  Why so secretive?  You can watch the video of the hearing here.  Apparently the rules of the subcommittee prevented Senators from questioning the witnesses, which allowed Google’s amen chorus to simply spew propaganda into the hearing record.]

I want to thank the Subcommittee on Intellectual Property for holding the referenced hearing.  Digital piracy is of ongoing concern to all contributors to the creative community be they photographers, film makers, authors, songwriters, musicians or featured artists.  This is particularly true after catastrophes like the cancellation of SXSW in the Live Music Capitol of the World.  Creators very often feel overwhelmed by the forces that use the Internet and the U.S. banking system to unlawfully extract value from their copyrights.  Digital piracy seems to benefit everyone in the piracy supply chain except the creators of the works driving these racketeering operations.

Unfortunately, the hearing witness list seems to indicate an overwhelming influence of Google and Google proxies as well as a representative of the Pirate Party.  However gloomy this turn of events may first appear for creators, it presents an opportunity for the Subcommittee to question the witnesses about the influence of Big Tech on efforts to reign in pirate operations, particularly off shore pirate operations.  I raise a few points of reference that I hope may prove useful to the Subcommittee and respectfully ask that you request that this letter be made a part of the Subcommittee’s record for the hearing.

Off Shore Pirates Profit by Interfering in US Markets

Unlike the historical pirates who were declared hostis humani generis under admiralty law, or the modern pirates who hijack cargo ships such as the Maersk Alabama and are stopped by Operation Allied Protector, digital pirates defy the nation state relatively openly and brazenly.   Digital pirates leverage anonymity, geography and extradition treaties to wrap themselves in the laws they cherry pick and use as loophole-driven alibis.  They also engage in lawfare and have organized political movements from Kim Dotcom’s Internet Party to the Pirate Party.  Pirates also embrace a host of academics and corporate legal departments that push their views.  For example, Stanford hosted a July 2007 Pirate Party cash-preferred political fundraiser for anonymous donors that also had stops at the Googleplex[1] and the O’Reilly conference.  The examples go on and on.

Despite the penetration of streaming services, music piracy is still a major problem for creators.  According to the IFPI, “forty percent of Internet users access unlicensed music content.”[2]  The Subcommittee’s focus on the issue is of great public policy importance.

There is a long history of pirate websites locating themselves outside of the United States but marketing themselves to U.S. users in a deceptive manner that makes it difficult for consumers, including both consumers and brands, to distinguish an illegitimate site from a legitimate one.  As the UK’s Serious Organized Crime Agency warned advertisers, “By incorporating advertising from recognized brands the website administrator attempt[s] to make the site appear legitimate.”[3]

This practice is most pronounced with sites that profit from U.S. content by selling advertising or subscriptions to enrich themselves from trafficking in pirated works.[4]  There is a continuing controversy regarding the source of the advertising[5]published on these illegal sites coming from Google entities through various intermediaries and resellers[6] as well as the use of the banking system to fund the pirates.[7]

The leading torrent site to this day is The Pirate Bay which has a recent Alexa rank of the 169th most visited site on the Internet.[8]  Founded in Sweden 17 years ago[9] contemporaneously with the Pirate Party, The Pirate Bay personifies the off-shoring of piracy and has been consistently mimicked by hundreds of other pirate sites such as YTS.It, 1337x, RARBG, NYAA.si, Torrentz2, EZTV.io, LimeTorrents, FitGirl Repacks and Tamil Rockers.  Pirate streaming sites follow the same offshoring practice and are an even bigger source of piracy than torrents.

These pirate sites invariably purport to wrap themselves in the DMCA safe harbors but locate themselves in havens outside of the U.S. that are well outside the reach and resources of creators forced to play the Superbowl of international whack-a-mole.  These pirate sites have no intention of subjecting themselves to the jurisdiction of U.S. courts but want the benefits of U.S. law, all the while marketing themselves in the U.S. in direct competition with the creators, including creators, whose works they steal.[10]

The digital pirates’ fascination with creating these offshore “pirate utopias” (or “Temporary Autonomous Zones” or “TAZ”) dates back to the 1991 hacker’s handbook by the anarchist Peter Lamborn Wilson entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism.”[11]  Julian Assange promoted the idea of a TAZ-type “offshore publications center” for Wikileaks in the 2009 document “Here be Dragons: Going from Defense to Attack.”[12]   Assange proposed Iceland as an offshore center and pirate utopia that would allow Wikileaks to operate freely.  Birgitta Jónsdóttir, a founder of the Iceland Pirate Party,[13] was one of the sponsors of the “Icelandic Modern Media Initiative”[14] that would have essentially codified Assange’s goals and is gradually coming to fruition at the Icelandic Parliament.  Again, the idea was to establish an off-shore haven for activity that would otherwise be illegal—a geographical safe harbor or TAZ well beyond the legislative safe harbors that largely accomplish the same purpose inside major economies like the United States in the name of protecting “intermediary liability” for the largest corporations in commercial history.

Pirates embrace the nation they spurned once they get caught.  Companies like Megaupload[15] located themselves in Hong Kong but put up a smokescreen of complying with the DMCA notice and takedown procedures while marketing themselves in America.  They often use the U.S. banking system to receive illicit payments from users or advertising revenue from companies like Google and Adbrite.[16]  Even in the handful of cases where copyright owners are able—at great expense beyond the means of most creators–to get these massive infringers in front of a U.S. judge such as with the Panamanian company Hotfile,[17] the defendant tries to wrap themselves in the protection of the DMCA safe harbor.

The Justice Department’s well-known experience with trying to extradite the Megaupload conspirators since 2012 is a prime example of the lengths to which these brazen racketeering organizations will go to avoid U.S. justice while simultaneously claiming the protection of U.S. law.  If the Megaupload conspirators ever do find themselves before Judge O’Grady, they will no doubt seek the protections of the DMCA because they argue Megaupload is “just like Google.”  In fact, Google submitted an amicus brief in the Hotfile case arguing that massive infringers should be protected by the DMCA—which makes Google’s shadowy presence at the Subcommittee even more telling.

Drafters of the DMCA would probably never have thought of themselves as creating a pirate utopia, but the safe harbor concept is near and dear to the Pirate Party, its backers and supporters.  Statutory safe harbors—or protection from “intermediary liability” as Google might call it–are more than a little reminiscent of the TAZ.  It is thus striking that the Subcommittee is to hear from Julia Reda, the long-time representative of the Pirate Party in the European Parliament, as well as so many other beneficiaries of Google’s support.

Julie I am the pirate

Pirate Party Witness Will Offer Big Tech’s Anti-Copyright Propaganda

I find it hard to understand why the Subcommittee has invited a leader of the European Pirate Party to testify at a hearing devoted to learning from efforts to reign in digital piracy in other countries.  I also find it rather odd that Ms. Julia Reda failed to disclose her German Pirate Party association in her public witness biography or her witness statement when last accessed today, which is ambiguous at best and misleading at worst. And typical of the duplicity we have come to expect from her.

Ms. Reda was the sole representative of the Pirate Party in the European Parliament for many years.[18]  Her Pirate Party affiliation is directly relevant to her testimony.  The Pirate Party, as the name implies, is closely tied to promoting piracy using the tiresome shibboleth of “sharing culture” in the words of Ms. Reda, or conversely the equally empty vessels of making copyright “progressive” and “fit for the future,” or simply the vague “access to knowledge” meme favored in Open Society Institute circles.[19]

Or just make international copyright even weaker—to the great detriment of the property rights of creators already under attack from multiple sources. [20]

It also must be said that Big Tech has tried for years to get creators to believe that digital piracy actually helps artists and songwriters because it drives fans to shows and movie theaters.  Digital music services would have us believe that the artist data they can generate helps with routing tours and that benefit makes up for low royalties.  However implausible that assertion is, if there’s no touring or touring is severely cut back due to public health concerns, then both piracy and the income transfer to pirates becomes even more important to all creators.

Julia Child Lobbying

The Pirate Party has had a close connection to the notorious criminal infringer The Pirate Bay.  In fact, the Pirate Bay’s co-founder Peter Sunde ran for the EU Commission Presidency on the Pirate Party slate at the time of his arrest, conviction and imprisonment in Sweden for massive copyright infringement.[21]  The Pirate Party reportedly offered to host the Pirate Bay on the servers of the Swedish Parliament.[22]

According to Wired Magazine,[23] the Pirate Bay inspired the creation of the Pirate Party in 2006—regardless of whichever came first, the two are synonymous today.  The connection between piracy and the Pirate Party is abiding and sustained over a generation.  Indeed the German Pirate Party’s youth operation—“Junge Piraten”—is devoted to the ongoing generational transfer of its goals.[24]  Anyone who observed the Pirate Party’s tactics in the recent European Copyright Directive debate at the European Parliament should have no doubt that Ms. Reda is a dedicated opponent of copyright and an equally dedicated supporter of piracy masquerading as “sharing culture” or “progressivism.”

helga google interfere

Plus, it must be said that Ms. Reda’s efforts to stop the Copyright Directive were as close to Google’s own lobbying effort as one is to two.  This includes such extreme tactics as spamming MEPs, lobbying the children of elected officials through Twitter to try to persuade their parents to oppose the Copyright Directive (sometimes referred to as #Article13) and promoting the #saveyourinternet spamming and Twitter bot campaign along with Google and particularly YouTube.[25]  Google was caught spamming Members of the European Parliament on the Copyright Directive by the Times of London in an independent investigation.  According to The Times, “Google is helping to fund a website that encourages people to spam politicians and newspapers with automated messages backing its policy goals[,] intended to amplify the extent of public support for policies that benefit Silicon Valley[.]”.[26]  This may sound reminiscent of what the U.S. Congress was subjected to during SOPA.

Given Google’s éminence grise at the hearing, it is no surprise that of all the elected representatives who the Subcommittee could have invited, it is Ms. Reda who finds her way into the U.S. Senate.  Reda-watchers assume she will be dining out on the platform afforded her in the Senate for years to come.  Hopefully, Ms. Reda does not intend to export her European Parliament lobbying tactics against Senators in the United States.

Google Dominates the Subcommittee Witnesses

It is also striking that Google is so well-represented among the witnesses at the Subcommittee’s hearing—yet its name is never mentioned.  Texans are asked to pay no attention to who is behind the curtain.  A little bit of research reveals the connections.

Professor Smith’s own Carnegie Mellon biography[27] lists four separate research grants from Google.  The Carnegie Mellon Privacy and Security Lab received a $1,050,000 cy pres award[28] in the controversial Google Referrer class action as well as a $350,000 cy pres award in the Google Buzz settlement.

Google is a leading member of the Computer and Communications Industry Association[29] which is a frequent critic of artist rights advocates and a reliable amicus brief for Google’s extreme business practices alongside NGOs like the Electronic Frontier Foundation, R Street and Engine Advocacy.

Daphne Keller is a former Google senior lawyer responsible for Google’s crown jewel of search and now works as “Director of Intermediary Liability” at the Stanford Center for the Internet and Society PACS.[30]  The Center was itself was launched with at $2 million gift from Google.[31]

As Ms. Keller well knows, Google’s own Transparency Report[32] shows the company has received over 4 billion DMCA takedown notices for infringing material in Google search alone. This is what is meant by “intermediary liability” (or more appropriately, no liability for self-defined “intermediaries”).  Is there another company in commercial history that when told it has infringed 4 billion times views the same ongoing infringement technique as a feature not a bug?  Does anyone believe that Google’s search algorithm is not behaving foreseeably exactly as designed due to lack of resources, complexity of scale or any other reason?  Or is Google instead distorting every possible safe harbor loophole and copyright exception to maximize its profits by maximizing the value gap?  Google would no doubt argue that the reason they receive so many takedown notices is because of the scale of Google’s monopoly operation–which is like the arsonist arguing that they should be excused from punishment because they light a lot of fires.  Perhaps fighting digital piracy begins at home.

Both Professor Samuelson’s Berkeley Center for Law and Technology and the Samuelson Law, Technology and Public Policy Clinic received $500,000 and $200,000 respectively from Google as part of the controversial Google cy pres awards recently called into question at the U.S. Supreme Court in the Frank v. Goes case.[33]  Of course, Google is a major benefactor of the Berkeley law school.  Professor Samuelson is a prime mover[34] in the American Law Institute’s controversial end run around the Congress with its nascent “Restatement of Copyright” as the Subcommittee well knows.[35]

Cy Pres
Recent Google and Facebook Cy Pres Awards

And if Ms. Reda’s past devotion to piracy were not evidence enough, she is now associated with the Berkman Center, which itself has received sustained corporate funding from Google including $500,000 and $750,000 in two separate cy pres awards from Google in controversial class action settlements.

As the sole connection to a foreign government whose practices are evidently intended to inform the Subcommittee, Ms. Reda seems an odd choice, certainly when there is no countervailing representative of which there were many (such as MEPs Helga Truepel or Axel Voss or Commander Karen Baxter of the City of London Police).

I hope that some of this information may prove useful to you in questioning the witnesses on behalf of creators and in achieving the goals of the hearing.

 

[1] Rick Falkvinge, Google TechTalks available at https://www.youtube.com/watch?v=08gfh_6sbQI
[2] Tackling Music Piracy available at https://ifpi.org/music-piracy.php
[3] Criminal Finance from Third Party Advertising on the Internet, [UK] Serious Organized Crime Agency Alert A2A725N (Nov. 2012).
[4] U.S. Remains the Top Traffic Source for Pirate Sites, Torrentfreak (Mar. 1, 2020) available at https://torrentfreak.com/the-u-s-remains-top-traffic-source-for-pirate-sites-200229/
[5] Note that Google’s Chrome browser promotes a browser extension that blocks ads and banners on thepiratebay.org https://chrome.google.com/webstore/detail/remove-ads-from-pirate-ba/imkpamgpfalmdaikobnkefcmmkpgljjd
[6] Starting in 2019, the City of London Police Intellectual Property Crime Unit coordinates with the Trustworthy Accountability Group in “Project Brand Integrity” that alerts advertisers when their ads are published on pirate sites by ad network sellers and resellers.  TAG and Creative Future has operated a similar program in the U.S. since 2016.  Press Release: Trustworthy Accountability Group Launches New Anti-Piracy Initiative to Protect European Brands, City of London Police (Feb. 12, 2019) available at http://news.cityoflondon.police.uk/r/1194/trustworthy_accountability_group_launches_new_ant
[7] European Union Intellectual Property Office, Money Laundering and Copyright Policy (Sept. 4, 2019) available at https://euipo.europa.eu/knowledge/enrol/index.php?id=3550 (“[A] significant stream of new case law in Europe developed in Europe, dealing with interesting elements of the online infringing models as well as with the relationship between online piracy and other associated crimes, as money laundering.”).
[8] Top 10 Most Popular Torrent Sites of 2020, Torrentfreak, available at https://torrentfreak.com/top-10-most-popular-torrent-sites-of-2020-200105/
[9] The Pirate Bay, Wikipedia, available at https://en.wikipedia.org/wiki/The_Pirate_Bay
[10] Joint Supplemental Comments Of The American Association Of Independent Music And Future Of Music Coalition In Response To Request For Empirical Research, Copyright Office, In the Matter of Section 512 Study, Docket 2015-7 (2015)(Study shows that over 70% of respondents fail to enforce their rights due to lack of resources).
[11] The Temporary Autonomous Zone, Wikipedia available at https://en.wikipedia.org/wiki/Temporary_Autonomous_Zone
[12] Wikileaks Release 1.0, YouTube available at https://www.youtube.com/watch?v=VWNfIvG4z-g&feature=emb_logo
[13] Birgitta Jónsdóttir, Wikipedia available at https://en.wikipedia.org/wiki/Birgitta_Jónsdóttir
[14] Icelandic Modern Media Initiative, Wikipedia available at https://en.wikipedia.org/wiki/Icelandic_Modern_Media_Initiative
[15] Jonathan Bailey, Megaupload’s DMCA Shell Games, Plagiarism Today (January 23, 2012) available at https://www.plagiarismtoday.com/2012/01/23/megauploads-dmca-shell-games/
[16] Indictment and Summary of Evidence, United States v. Kim Dotcom and Megaupload Limited et al, at 34 (Crim. Case No. 1:12CR3, E.D. Va. 2012).
[17] Hotfile, Wikipedia available at https://en.wikipedia.org/wiki/Hotfile
[18] Ms. Reda promotes herself as “My name is Julia, I’m the Pirate in the European Parliament” and does to this day on her website juliareda.eu
[19] Pirate Party founder and Bitcoin promoter Dick Greger Augustsson also known under the alias Rick Falkvinge says “The events unfolding now will not just crumble today’s power structures, but put them in the kitchen blender and set it to ‘Disintegrate,’ happily leaning against the kitchen counter with one hand on the blender lid while leisurely whistling folk songs.”  Access to Knowledge in the Age of Intellectual Property(Information Program of the Open Society Institute, available at http://www.soros.org/initiatives/information/focus/access/articles_publications/publications/age-of-intellectual-property-20101110/age-of-intellectual-property-20101110.pdf); see also “Bitcoin will Hit $5 million—Rick Falkvinge” available at https://www.youtube.com/watch?v=vdPWnYnpEOw and “Right on the Money: Bitcoin hits $3,000  or 1000x my entry point six years ago” Falkvinge on Liberty (June 11, 2017) available at https://falkvinge.net/2017/06/11/right-money-bitcoin-hits-3000-1000x-entry-point-six-years-ago/
[20] A recent large study of 1,564 independent musicians based in Austin sponsored by the City of Austin documented that 44% of respondents stated digital music sales “Contributes None” to their income.  Titan Music Group LLC, The Austin Music Census 27 (Fig. 5) (June 1, 2015) available at https://www.austintexas.gov/sites/default/files/files/Austin_Music_Census_Interactive_PDF_53115.pdf.
[21] Julia Reda, Solidarity with Peter Sunde, Julia Reda Blog (May 2014) available at https://juliareda.eu/2014/05/solidarity-with-peter-sunde/
[22] Duncan Geere, Pirate Party to Run Pirate Bay from Swedish Parliament, Wired (July 5, 2010) available at https://web.archive.org/web/20100708152621/https://www.wired.co.uk/news/archive/2010-07/5/pirate-bay-swedish-parliament
[23] Special Report: The Pirate Kings of Sweden, Wired (Aug. 17, 2006) available at https://www.wired.com/2006/08/a-nation-divided-over-piracy/?tw=wn_index_13
[24] Young Pirates (Germany) Wikipedia https://en.wikipedia.org/wiki/Young_Pirates_(Germany)
[25] Le Tatou, Ce Qu’on Ne Vous Dit Pas Sur l’Article 13  (What No One Tells You About Article 13) YouTube (Dec. 12, 2018) available at https://www.youtube.com/watch?v=fAdhXb1NR_o
[26] Matthew Moore, Google Funds Website the Spams for its Causes, The Times of London (August 6, 2018).
[27] Available at https://mds.heinz.cmu.edu/bio-vita/
[28] See, e.g., Roger Parloff, Google and Facebook’s New Tactic in the Tech Wars, Fortune (July 30, 2012) available athttps://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/ (“If the Electronic Frontier Foundation, the nation’s preeminent digital rights nonprofit, had disclosed last year that it received a cool $1 million [cy pres] gift from Google — about 17% of its total revenue — some eyebrows might have been raised.”).
[29] Google Trade Associations and Membership Organizations available at https://services.google.com/fh/files/misc/trade_association_and_third_party_groups.pdf
[30] Available at https://pacscenter.stanford.edu/person/daphne-keller/
[31] Available at available at https://news.stanford.edu/news/2006/december6/google-120606.html
[32] Google Transparency Report available at https://transparencyreport.google.com/copyright/overview
[33] The Google Street View class action settlement is also being opposed by nine state attorneys general as well as a class objector.  Objection of David Lowery, In Re Google LLC Street View Electronic Communications Litigation (Civ. Case No. 3:10-md-02184 N.D. Calif. S.F. Div. Jan. 20, 2020).
[34] Letter from Pamela Samuelson to Director of American Law Institute (Sept. 12, 2013) available at https://musictechpolicy.files.wordpress.com/2018/02/letter-re-ali-council-010918.pdf
[35] Letter from Chairman Thom Tillis, Sen. Ben Cline, Reps. Deutch, Roby and Rouda to Director  of American Law Institute (Dec. 13, 2019) available at https://musictechpolicy.files.wordpress.com/2019/12/tillis-et-al-letter-to-ali-re-restatement-of-copyrights.pdf

by thetrichordist

2019-2020 Streaming Price Bible : YouTube is STILL The #1 Problem To Solve

Here we go with the current year update.

This data set is isolated to the calendar year 2019 and represents a mid-sized indie label with an approximately 350+ album catalog now generating over 1.5b streams annually. Streaming is now a fully mature format, and it is also the number one source of revenue for recorded music. Streaming in all configurations now accounts for 64% of all recorded music revenues. Head on over to the RIAA US sales database [here] to check out the numbers. Pro Tip: Remember to adjust for inflation!

We are keeping a simplified chart again this year. We’ve extended to the top 30 streamers which represent 99.87% of all streaming dollars. The Top 10 streamers account for over 93% of all music streaming revenues (down from 97% last year). The Top 5 account for over 83% of all streaming dollars (down from 88% last year). The drop in overall revenues in the Top 5 and Top 10 are the result of YouTube’s Content ID pulling down the overall revenues / per stream.

The biggest takeaway by far is that YouTube’s Content ID, shows a whopping 51% of all streams generate only 6.4% of revenue. Read that again. This is your value gap. Over 50% of all music streams generate less than 7% of revenue.

 

This is the first time we have not seen the Spotify per stream rate drop since the service launched a decade ago. The Spotify per stream rate has stabilized moving up just slightly to .00348 from .00331.  In other words Spotify is paying out about $3,300 – $3,500 per million plays. We’re working with a very large sample that has aggregated all streams and revenue against both subscription and ad supported revenues for a single per stream average. This overall average is helpful for anyone who wants to calculate gross revenues by simply looking at the numbers on Spotify itself. For those who may not know, there is a simple “trick” to see the streams of any song on Spotify. On the desk top app, go to the album view and hover your mouse/cursor over the ||||||| at the far right side of any song, just to the right of the song length. Once there the plays for the song will materialize just below the song length.

 

Using our average, the song above has earned between $4,026 – $4,270.78 (gross before distribution fees) on Spotify at 1,220,224 plays.

Apple Music is again the best value per stream accounting for nearly 25% of all streaming revenue on only 6% of consumption. Spotify generates the most overall revenue of any streamer (no surprise) at 44% of all streaming revenue on 22% of consumption. As stated before, and which can not be overstated enough, You Tube’s Content ID is the major issue limiting growth contributing only 6% of revenues on over half of all streams, at 51% of total consumption. That’s a staggering statistic.

Apple’s per stream rate also stabilizes this year hitting a per stream rate of .0675 which is much closer to where it was two years ago at .00783. Our numbers from 2018 showed a dramatic drop in Apple’s rate at .00495 which we attribute to an expansion into new territories and a large number of 90 day free accounts that had not matured to fully paid subscribers.

In looking at the per stream rates for song and album equivalents, you might want to read this article by Billboard (as of 2018) on the current calculation of how many streams equal an album for the purposes of charting. The report states that, “The Billboard 200 will now include two tiers of on-demand audio streams. TIER 1: paid subscription audio streams (equating 1,250 streams to 1 album unit) and TIER 2: ad-supported audio streams (equating 3,750 streams to 1 album unit).” Our numbers suggest however it would be more fair to average all revenues, against all streams (including content ID), and that actually lands at about 3,516 streams per album across the board.

 

These numbers are from one set of confidentially supplied data for global sales. If you have access to other data sources that you can share, we’d love to see it.

  • HOW WE CALCULATED THE STREAMS PER SONG / ALBUM RATE:
  • As streaming services only pay master royalties (to labels) and not publishing, the publishing has to be deducted from the master share to arrive at the comparable cost per song/album.
  • $.99 Song is $.70 wholesale after 30% fee. Deduct 1 full stat mechanical at $.091 = $.609 per song.
  • Multiply the above by 10x’s and you get the album equivalent of $6.09 per album
[EDITORS NOTE: All of the data above is aggregated. In all cases the total amount of revenue is divided by the total number of the streams per service  (ex: $5,210 / 1,000,000 = .00521 per stream). In cases where there are multiple tiers and pricing structures (like Spotify), these are all summed together and divided to create an averaged, single rate per play.]

[royalties][streaming royalties][music royalties][royalty rates]

by trichordist

Guest Post: MLC Metadata Showdown: What’s in a Name? Your money.

Guest post by Chris Castle

There is an unsurprising discussion going on about song titles in the metadata deliberations regarding the regulations mandating the conduct of the Mechanical Licensing Collective quango.  The least surprising part of the discussion is that the services change song titles as it suits them.

This explains why you can get your song metadata all nice and pristine and yet your payments are still screwed up because somehow the titles got changed.  It’s not a surprise–they’ve been doing it for years.  Unless the services are prohibited from continuing this boneheaded..there I said it..practice, their supposed great yearning for the database in the sky will come a cropper.

The MLC recently raised this issue with the Copyright Office:

The DMPs do not have the same method for altering metadata, and their alterations significantly increase the difficulty of matching. There was a discussion of the DLC’s example of changing the sound recording licensor’s metadata for the “Radio Edit” version of the song “Hello,” so that the song title becomes “Hello (Radio Edit).” It was noted that the MLC’s musical works database will have the musical work title “Hello.” Whereas the unaltered sound recording licensor’s 5-character title “Hello” will be a direct match to the MLC’s musical works database title, the 18-character “Hello (Radio Edit)” is much less of a match in the eyes of an automated string comparison algorithm. Similarly, the MLC does not see merit in the DLC’s argument that each DMP should be allowed to alter metadata such as to remove characters that they deem “illegal” (and there is no standard or consensus on what is an illegal character) as this will only hamper matching efforts.

Let’s acknowledge that there’s nothing new here–this problem has been around for years and was allowed to fester into a business practice.  I first wrote about it in the context of the “address unknown” debacle where all concerned allowed services to change song titles and then claim they couldn’t find a copyright registration for the title they changed.  Sound Kafka-esque?  Mais certainement.

Here’s an example from the address unknown filings that started in 2016.  Google filed an address unknown for “Fragile’ by Sting.  Bizarre, you say?  Yes, of course.  But here it is:

Sting Fragile Live

Notice that Google affirmed that Google was not able to find “Fragile” written by Sting in the public records of the Copyright Office.  (Leave aside the absurdity that “Google can’t find [X]”.)

And yet, guess what I found in the public records of the Copyright Office after about a 20 second search:

Sting Fragile

Dang.

What do you know, “Fragile” written by Sing is in the public records of the Copyright Office.  But of course Google only affirmed they couldn’t find “Fragile (Live)” which at best is the title of the recording, not the song.  But it’s the song title Google chose to look for, not the actual title of the song–and the compulsory  mechanical license available under the address unknown theory is for the song not the sound recording.  So wouldn’t you think that the party relying on that compulsory license should have to search for the correct work?  Or else…what?  Maybe for starters they don’t get to rely on the address unknown because they had the address available to them and chose not to look.  And you know what they say–you can’t find what you don’t look for.

Google, Spotify and other services (but not Apple) got away with this loophole of a loophole because they were allowed to.  And this isn’t the only one, by the way.  There are likely hundreds of thousands of songs that the services claimed they couldn’t find in the Copyright Office records because the service changed the name of the song and then looked for the name they made up.  Some might call this fraud (or a violation of 18 USC Sec. 1001, making false statements to a Congressional agency).  (I wrote a pretty extensive article on this in 2017 for the ABA Entertainment & Sports Lawyer.  I wish it were old news.)  So why were the services allowed to get away with this?  Don’t let the revolving door hit you on the way out.  (And speaking of revolving doors, see Is it Time for the Inspector General to Review the Copyright Office’s Administration of Address Unknown NOIs?)

Now after all the hoorah of the Music Modernization Act Title I (the MLC part) the services are still trying to get away with this hogwash.  And who can blame them?  They were allowed to get away with it before so why not keep doing the fraud?  Of all the predictable insults, this one is probably the most predictable because the services were allowed to get away with it in the millions of “address unknown” songs at a time when serious and sustained opposition might have stopped it.  Some things are worth suing over more than others.

Should they keep getting away with it?  It will likely just make the black box bigger. Parce que l’enfer, c’est les autres.

by thetrichordist