By Chris Castle
Right on cue, SiriusXM attacks the Music Modernization Act at the 11th hour with a frothy op-ed in Billboard stringing together what I would argue are a lot of half-truths and misrepresentations in a desperate effort to fool both artists and the Congress into preserving the Sirius crony insider deal on subsidized royalty rates.
Sirius’s whingey Billboard post is a failed dezinformatsiya campaign focusing on a feigned concern for artist welfare that’s about as convincing as an ivory poacher joining PETA. Sirius then makes mysterious assertions about how artists have given up getting a broad performance royalty for terrestrial radio which Sirius surely knows is false as negotiations continue between MusicFirst and the National Association of Broadcasters, and for a big finish adds some rhetorical bobbing and weaving that seems to boil down to kvetching about why can’t Sirius get recordings and songs for free.
Only a monopolist could pull off this kind of rhetorical thimblerig with a straight face and only a media consolidator like Sirius’s and Pandora’s owner Liberty Media could feel entitled to do so. Sirius is getting bad advice–yet again.
The Charade of Horribles Begins Here
Sirius starts off with a blatant misdirection–somehow the monopolist satellite radio operator is oh so very concerned about how artists are paid under Sirius’s “licenses” for pre-72 works. According to Sirius, “The Company wants to make sure that a fair share of the monies it has paid, and will pay, under these licenses gets to performers.” Sounds good, right?
Wrong. The statement is pure deception. Sirius leaves important facts out of the argument: the only reason that Sirius is paying anything at all on pre-72 artists is because The Turtles and the major labels each sued Sirius in litigation that Sirius fought for years with all the wrath of big law firms trying to crush uppity artists.
The Sirius post in Billboard addresses the major label settlement of that lawsuit which itself had two components–a lump sum payment of $210 million that the labels have distributed or have committed to distributing to artists, and also a go-forward license. (The Turtles got even more for the class action settlement–check here to see if you’re in the class.)
When Sirius refers to a “license” without also referring to the lawsuit that produced the license, it sounds like the “license” is just normal course business. Not true–Sirius had to be dragged kicking and screaming through courts in California, Florida and New York to get to any conclusion at all. So pretending there was a license without the lawsuits that drove Sirius to the table is quite the equivocation.
And frankly if it weren’t for The Turtles there probably would be no solution at all. It sounds quite different to say that Sirius is so concerned about artists that they allowed themselves to be sued and are cheesed that artists still mistrust them as royalty deadbeats, right?
Not to mention–it’s unclear that there actually are any licenses to pay on in the first place if you think a license should actually have like, you know, terms and stuff. Sirius evidently is taking extreme positions in a negotiation with the major labels that is very contentious according to the New York Times. So the reality doesn’t exactly comport with the Sirius fantasy. Shocking, I know.
Now Sirius wants to run to Congress at the 11th hour to use the MMA to amend a private settlement agreement because they are so concerned about payments to artists under private contracts? Sorry, that dog won’t hunt. If there’s a royalty dispute between artists and labels, it’s not going to get fixed by either SiriusXM or the U.S. Congress. It will get fixed by artists, their managers and lawyers just like always.
What Sirius want to do is gin up a fake 11th hour issue to try to derail the MMA altogether. Why? They’re doing it partly because it looks like MMA is going to limp across the finish line in the coming weeks, but they’re doing it mostly because they think we’re all idiots.
So don’t come crying to me about how much Sirius care about artists when they would be happily stiffing artists to this day if the artists hadn’t sued them into submission. (Safe harbor fans take note.)
My, What Big Teeth You Have
Sirius then goes on to spread squid ink about the Congress getting out of the free market by ending the Sirius subsidized royalty rate–subsidized by the very artists who they profess to care about so much–in favor of the “willing buyer/willing seller” standard which tries to approximate a free market negotiation. You have to love the irony in this line from the Sirius op-ed:
The willing buyer/willing seller standard functions well in competitive markets. In fact, it would work great if there were 100 labels to buy music from, but there isn’t — in an overwhelming majority of cases there are only three.
Actually–there are well over 100 labels to “buy music from”, and saying otherwise is an insult to independent labels around the country and all over the world. But…there’s only one monopoly satellite radio carrier–SiriusXM, which itself is a combination by takeover of Sirius’s competitor XM Radio which we remember fondly as the brainchild of one of the greats, Lee Abrams.
Sirius’s point is exceptionally ironic and some might say entirely disingenuous when you consider the company’s control over Pandora acquired as a result of corporate hard ball in its head fake merger negotiations with Pandora–which strangely enough also took the Sirius position on stiffing pre-72 artists and got sued right along side the satellite monopolist.
And of course it must be said that all of these machinations are orchestrated by media consolidator Liberty Media, the massive conglomerate whose CEO Greg Maffei “…is chairman of Sirius-XM, Pandora Media, Live Nation Entertainment (which owns Ticketmaster), Liberty TripAdvisor and Qurate Retail — the recently rebranded owner of QVC, HSN and Zulily. He’s a director of Charter Communications, the No. 2 cable operator (Liberty is the largest stockholder), and online real estate service Zillow” according to Variety. “[Maffei] last year made $19.8 million — up 17% over 2016 and equal to 223 times the $88,786 that the average Liberty Media employee collected.”
And then there’s the persistent story about Liberty Media acquiring iHeart (see term sheet here). So that’s all pretty cozy cronyism.
It will come as no surprise to Sirius that when you ask someone to invest in your company, that usually results in that investor getting shares of stock–like when an artist subsidizes the Sirius royalty rate. I see no shares of Sirius on offer here, and it’s just the usual drivel that is based solely on “I don’t wanna goo goo goo.” The free ride is over (hopefully).
As if the trip to Sirius’s alternate universe weren’t weird enough, we now have this nonsense statement that requires a trip back to messaging for the failed Internet Radio Fairness Act supported by Pandora, SiriusXM and Google Shill Listers, the Electronic Frontier Foundation:
SiriusXM is asking the simple question: “Why are we changing the rate court evidence standard for musical compositions in this legislation?” So, artists have agreed that they do not want to fight for terrestrial radio to pay sound recording royalties, SiriusXM has accepted that decision. But why is terrestrial radio given another break in rate court for the musical composition rights?
Let’s disabuse Sirius of the idea that artists have given up anything on the fight for artist pay for radio play. Those negotiations are on-going and last time I looked the #irespectmusic campaign was alive and kicking. It’s a marathon not a sprint.
I can understand that Sirius is envious that Big Radio has succeeded in administering an ass kicking to artists for a long time, but those days are ending. Thanks to Ranking Member Jerry Nadler and his “Fair Play Fair Pay” bill, radio may soon be paying their fair share in the new Congress. And remember–for quite some time, Sirius has not wanted broadcast radio to be royalty-paying like Sirius, instead Sirius wanted to be royalty-free like broadcast radio. Sorry, the answer is artists have not given up anything on fairness.
The change to the rate court evidence standard for songs is hardly a break for terrestrial radio given the package of rate court relief in MMA–if anything, it allows songwriters a greater opportunity to argue for higher rates. More rhetorical magic tricks at the thimblerig table.
Let’s be clear–Sirius is using rhetorical tricks and sleight of hand to draw artists’ attention away from the prize. Whatever problems we may have in the family, we’re not going to take advice from them in their starched white shirts using forks and knives to eat their bacon.