The Trichordist

Remember Mike Masnick appeared on the so-called  Oracle vs Google “shill list.”   See here:

http://www.theregister.co.uk/2012/08/24/google_amended_shills_list/

Since Mike addresses the Trichordist directly,   let me answer directly.

I am all for the 100% licensing rule because it will break the exploitative and unconstitutional music licensing system. I will educate every songwriter on how to exploit this to our advantage.  We have nothing left to loose.  Why not cause absolute chaos for the music users?  Let them feel our pain.  And it’s all perfectly legal.  It simply requires us not do something the DOJ can’t make us do.   And it may even allow writers to selectively window their works on streaming services. Something that was impossible until now.  Stay tuned for that!

And it has also shined a light on corruption and Google control of DOJ antitrust division.

Kully who was nominally in charge of this DOJ rule is suddenly gone?   His position appears vacant.  This happened yesterday.

The chaos has started!

(Editor note:  Masnick thinks so much of himself that he offers to shut down Techdirt forever if someone pays him $100 million dollars.  See below)

 

Songwriters should embrace the chaos.   The DOJ really thinks that BMI and ASCAP have always performed 100% licensing.  Even though they seem to contradict that by offering the  PROs one year to comply with 100% licensing.  Fuck these idiots just let them have it.

The new rule will force hundreds of thousands of songs, if not millions of songs to be dropped from the BMI and ASCAP catalogues.  Especially Hip Hop songs and songs with Samples because of private co-administration contracts.  Radio stations, television stations, bars, restaurants, malls, football stadiums, cable networks, interactive and non-interactive services will either have to drop the songs, buy direct license for these songs, or buy licenses from an alphabet soup of new PROs that will appear on the scene with none of them subject to consent decrees.  Even if the DOJ tried to managed to put 26 new PROs under the consent decrees it would require a vast expansion of their staff.

Careful what you wish for fuckwads.

Also imagine the calls to the DOJ, congressmen and the lobbyists that thought this was a good idea.

“Are you fucking telling me I need 26 PRO licenses instead of 3?  This is a fucking improvement?”

In the meantime it will be absolute chaos.. No one knows what they can or can’t play.

What have we got to lose anymore?  The DOJ hates songwriters.   They will never do right by us. They are making it impossible to make a living as a songwriter.

So let’s enjoy what we can.
I say just chill and enjoy the show.

Who IS running the shop over at DOJ Antitrust Litigation Section III? Really doesn’t it just makes a lot more sense for Google to directly pay/control the section rather than having to go through all the rigamarole of pretending to have an impartial and independent division, with revolving door Google lawyers? 

You got to wonder.

Why is it that for the previous 75 years of DOJ antitrust supervision BMI/ASCAP were allowed to fractionally license music?    Surely it didn’t escape notice that BMI/ASCAP were fractionally licensing songs?   Fo 75 years they allowed ASCAP BMI songwriters to write co-administration agreements that require fractional licensing.   I mean if the DOJ consent decree judge can issue a legal opinion that notes publisher Marty Bandier in a certain photo was wearing “short sleeves and smoking a large cigar” (clearly the judge intended this as a personal smear)  surely the DOJ and rate court judges should have noticed the fact that for 75 fucking years songwriters have been writing private co-administration contracts that require fractional licensing and BMI and ASCAP have been obliging.  Clear

So is the current crop of Berkeley/Harvard/Stanford/Silicon Valley DOJ antitrust lawyers just smarter than the previous 75 years of lawyers that were employed in the DOJ ATR Division?

Alternately are they more stupid?   Like dangerously stupid.  Like take their law licenses away because they don’t even understand fundamental things  like the constitution, separation of powers and private contracts.  Maybe I should be kinder. Perhaps the entire department suffers from a mass learning disability that makes it so they have a hard time understanding the Copyright Office report on the effect of 100% licensing on the existing music market. That the economic and structure of millions of private contracts concerning the administration of songs, would require pulling hundred of thousand if not millions of songs from BMI and ASCAP producing the exact opposite effect of what they intended with 100% licensing.

Or are they simply corrupt.  Occam’s Razor would suggest so.  It requires fewest assumptions to be added!  I’m only half joking here. Consider the facts. It does seem to only benefit Google.  This head of the Antitrust division is a former Google lawyer (Renata Hesse) and she appears to have pushed through the 100% licensing rule. And as Music Tech Policy notes in their devastating timeline of events, Google seems to have orchestrated a takeover of Antitrust division by Google friendly lawyers following the FTC investigation of Google.

So readers what do you think?

 

 

 

Let’s look at the implications of the  DOJ 100% rule for the writers of the 5th most popular Hip Hop Song in the US this week.

These are the four samples in For Free, by DJ Khaled featuring Drake.    Each of those sampled songs also has multiple writers.  Consequently the list of writers for the composite work is quite long.  In this case there are 13 Songwriters, 4 BMI publishers and at least 3 non BMI publishers.    6 writers use ASCAP to license performing rights.  6 writers use BMI and one writer is Canadian so they use SOCAN.   As is always the case with works composed of samples,  these writers have a co-writer agreement to spell out ownership percentages and then an agreement that specifies each party will license and collect it’s own fractional share.    “You do your business and collect your money, I do my business and collect my money”

This is how the “Tax” comes in.   The DOJ 100% licensing rule says fractional licensing is “illegal” under the BMI/ASCAP consent decrees so two things could happen.

1. All thirteen writers and 7 publishers must throw out the old agreement and come together and negotiate a new co-writer agreement that allows either BMI/ASCAP to license this song in full, and either pay writers directly or pass it through to the other PRO.  That’s 20 entities that may all have to agree on this final document.  What if one ASCAP writer will only accept payment from ASCAP  another ASCAP writer is cool with being paid from BMI to limit overhead deductions.    Imagine if each of these parties are represented by a lawyer?  What are the legal fees?  $20,000k?  This is the first tax on hip hop.
2. If the 20 parties can’t agree?  Or what if one of the authors is deceased?  Maybe the heir can’t be found or the estate is unsophisticated and says “no re-negotiation?”  Then the work violates the DOJ rule and  can no longer be part of the ASCAP and BMI repertoires.  This song becomes “stranded.”  It will not be possible to perform this song in the US. No ASCAP or BMI royalties.  That’s the second tax on hip hop.

Further I worry that because Hip Hop uses so many samples and co-writer deals that require fractional licensing that music users (radio stations, tv etc) begin to avoid the entire genre because they aren’t sure which tracks are “stranded” and hence unplayable in the US.

Maybe that’s a third tax on  hip hop.

 

Getting the right result for our corporate masters.

We need to get the OIG to investigate or even recommend the disbanding of the DOJ Antitrust Litigation Section III over their handling of the 100% song licensing rule.  This is getting totally ridiculous.

First: there is the very real chance of corruption here as this appears to have been  rammed through at the behest of Google by former Google lawyer Acting Assistant Attorney General Renata Hesse.   See full timeline of Google takeover of Antitrust Division:

https://musictechpolicy.com/2016/08/09/how-google-took-over-the-justice-department-antitrust-division-renata-hesses-timeline/

The DOJ Antitrust Division Litigation Section III/AG Lynch/And WhiteHouse needs to get the shit FOIA-ed out of them on this alone. Everybody involved in this sorry episode needs to be investigated.

Second:  Look at how stupid/Juvenile the DOJ division is.  In a brief to Judge Stanton in defense of their 100% licensing rule they arrogantly take a potshot at the US Copyright Office because they dared to oppose the DOJ on this. In reference to this Kelsey Shannon says:

“the question at issue, however, is one of antitrust law and decree interpretation, not copyright law.”

The reason this is so arrogant is because the Copyright Office was not in disagreement with the DOJ on copyright issues!   The Copyright Office was weighing in on the structure of the music licensing market as it stands and the effect of the DOJ rule on private contracts between songwriters; administration costs; downstream licensing and loss of repertoire to BMI and ASCAP.   In short the Copyright Office noted it would be extremely disruptive and result in less competition and less efficiency.

The DOJ knows this.  But these idiots are now further disgracing themselves by trying to mount a false and misleading PUBLIC RELATIONS campaign against the US Copyright Office for opposing them.  (Appears letter was leaked to journalists before making publicly available, hence public relations campaign).

This is the bureaucratic  equivalent of telling the Copyright Office “Shut the fuck up we are the anti-trust division.”

The argument has no substance.  Who are these clowns over their anyway?

Investigate them.  Prosecute them. Fire them all.

 

 

 

Some casual reading on set top box proposal. But it’s important to note that the issue here is remarkably similar to the DOJ 100% licensing rule.

1) non-legislative likely unconstitutional attempt to establish what is essentially a statutory license.
2) interferes with private contracts.
3) comes at the behest of Google int the 11th hour of Obama administration.

You may not realize this yet but the new 100% DOJ licensing rule, attempts to put an enormous financial and compliance  burden on BMI/ASCAP songwriters.  Read the rule folks. Within the next year we are required to indemnify our PROs and the services that use our songs, that our co-writers won’t sue if they start licensing 100% of a co-written song.  IF YOU HAVE  CO-WRITER AGREEMENTS THAT SAY EACH WRITER ADMINISTERS THEIR OWN SHARES YOU WILL HAVE TO RENEGOTIATE THOSE AGREEMENTS.

I have a remarkably small number of songs in my catalogue of 400+ songs that will require this fix.  But I estimate it will be a minimum $1,000 in legal fees for each of those agreements.  If you are a professional songwriter in Nashville, instead of a performer/songwriter like me it is likely that you have a lot of co-writer agreements to modify. You could be facing tens of thousands of dollars in legal fees to renegotiate those co-writer agreements.

Fuck these people.  I’m sick of it. Aren’t you?

We tried to reason with these fucks and explain just how disruptive this 100% licensing bullshit was gonna be.

THE FUCKING US COPYRIGHT OFFICE TOLD THEM IT WOULD BE CHAOS.

Yet they didn’t’ listen.

The DOJ Antitrust Litigation Division Section III appears to be completely in the pocket of Google so they just went ahead and did it anyway.  Because it fucking helps Google, no one else. It is the only logical explanation.

Maybe we should bring on the chaos?  If songwriters are gonna be locked in a Kafkaesque nightmare with no due process, no appeal, no reasoning and no recourse?  Maybe we should bring the whole system down. Break the entire music licensing system.

Fortunately I think the DOJ overreach on this one may have given us the monkey wrench we needed.

See songwriters can’t really strike.   We aren’t considered laborers so we can’t form unions.  The closest thing we have to unions are our non-profit  “performing rights societies”  or PROs. The largest and most well known of these are ASCAP and BMI.   And these have been under “temporary” justice department consent decrees for 75 years,  basically because there was essentially previous threat of something like a strike.

Because we are not unions and we produce a good, if we collectively decided to withhold our goods I suppose the US Government (and Google controlled)  DOJ Antitrust Division Litigation Section III could come after us for collusion or some other trumped up charge.  And given their thuggish, corrupt and unconstitutional behavior since ex-Google lawyer Renata Hesse arrived to oversee this division you can bet they WOULD  come after us.

However I think the DOJ over reached on this one.  Here’s how we get away with it.

We don’t do anything.

Look at the clause below.

You see even though this is a Kafkaesque nightmare, the DOJ still seems to realize they can’t go back in time and make previously legal private contracts between songwriters illegal.  Something to do with the constitution….   But they can require PROs to ask songwriters to give them “assurances” that there are no longer co-writer agreements that prevent 100% licensing.    But the DOJ can’t make us give those assurances.

What if we didn’t?  What if we did nothing?  Give no assurances and provided no information on co-writes and whether co-administration agreements exist that prevent full work licensing. Remember we are not legally required to respond.  And if the DOJ tries to force us to respond…well that is exactly how autocracies get started.

See here is the thing.  We call their bluffs.  This isn’t like we are dealing with the Counter Terrorism part of the DOJ, these are a bunch of pussy assed Harvard/Yale/Berkeley political appointees that would cross the street or lock their car door if they saw a musician walking down the sidewalk towards them.

Is the DOJ Antitrust Litigations Section III, really just gonna let all millions of songs in the BMI and ASCAP catalogues disappear from radio, tv, syndicated television shows, bars, jukeboxes, streaming services,  and webcasting services?  Especially considering many of these services are locked into four, six even eight year contracts with BMI and ASCAP.  There just went their cushy revolving door job at Sirius XM, YouTube or Cox Media!

We should just sit back eat some popcorn and enjoy the show.  Let’s make Renata Hess and the DOJ explain to music users what the fuck just happened.

DO NOTHING. MAKE THEM FIX IT.