@SchneiderMaria Rolls Over YouTube in Her Copyright Infringement Case

By Chris Castle

It’s been just over two years since Maria Schneider sued YouTube for copyright infringement. But the court has now cleared a path for her to actually proceed with her main case by dismissing–emphatically–YouTube’s motion to dismiss for failure to state a claim.

According to Reuters:

Schneider sued YouTube in 2020 on behalf of a proposed class of small copyright owners, arguing the platform only protects large copyright owners from infringement while allowing pirated content from others in order to draw in users. The group said major companies have access to YouTube’s advanced Content ID software to scan for and automatically block infringing content, while individual creators are left “out in the cold.”

But that’s not the critical part. Maria’s lawsuit alleges that YouTube YouTube removed copyright management information (CMI) in violation of 17 U.S.C. § 1202(b)–potentially intentionally.

The amended complaint states that YouTube knew that files containing audio and/or video works routinely contain CMI, that CMI is valuable for protecting copyright holders, and that the distribution of works with missing CMI on YouTube has induced, enabled, facilitated, and concealed copyright infringement. The plausible inference from these and similar allegations is that YouTube removed the CMI from plaintiffs’ works with knowledge that doing so carried a “substantial risk” of inducing infringement. 

One could see how anyone who intentionally removes one brick from the complex wall that protects big infringers like YouTube from truly massive liability for copyright infringement would be in a whole heap of trouble for inducing infringement (which gets you into Grokster land).

Personally, it’s my view that this is exactly what YouTube and Google do on a massive scale and that they should pay the class damages that will dwarf all the fines these people have already paid for everything from violations of the Controlled Substance Act to competition law violations. Truly Carl Sagan level damages…billions and billions.

We’re lucky Maria’s on the side of the angels. Fight on.

Guest Post: The Royal Scam: Content ID and Google’s Massive Profits From Piracy and Crime

By Chris Castle

Google and YouTube have managed to create a scam that has gone both largely undetected and largely unpunished for a decade–illicit activity that can be both seen and quantified through the sale of advertising and is also unseen and unquantified through data scraping in the background.  (I leave it to you to speculate which is more valuable.)

It is rare for Google to get caught like they were with the massive multi-agency sting operation and grand jury investigation by the then-U.S. Attorney for Rhode Island that led to the $500,000,000 punishment and non prosecution agreement in 2011.  (Which led to a very expensive shareholder lawsuit against Google’s board of directors and bizarre settlement.  We’ll come back to the board of directors issue here.)

If you had to put your finger on a moment in time that Google began buying Washington in earnest, it was this sting.  It was also the closest that Larry Page ever came to going to prison with all its earthly delights.  That evidently got his attention.

Google has also faced down civil RICO claims for racketeering through the theft of intellectual property.  The last reported RICO case against Google offers a checklist for how to make a civil RICO claim stick against the Leviathan of Mountain View.  I like the YouTube case a lot better than the inventor’s case they beat back.

But most of the time Google just keeps the money when they get caught.  A prime example is YouTube’s standard practice of refusing to pay a revenue share retroactively after you catch them infringing your work using Content ID.  That unjust enrichment creates an incentive to sharply limit the number of artists or songwriters who get access to Content ID in the first place.  I think this is why Google massively overreacted to Mississippi Attorney General Jim Hood’s Civil Investigate Demand and subpoena that they never did respond to.  Maybe they were covering up the same crimes that got them prosecuted in Rhode Island and they did not want to go through that again.

And therein lies the rub and our topic today:  If Google never gets caught, Google quietly keeps all the money.   For our world, this happens because they’ve artificially limited the tools that independent creators can use to catch the massive infringements.  And even if the majors and a handful of independents get the Content ID tool, YouTube still has the incentive to make Content ID just good enough that they can say it works, but not so good as to actually stop the infringement before it starts.

The majors using Content ID have to employ still other means to catch them, sometimes manually, at great cost.  In fact, you have to wonder if net-net the total costs of administering the YouTube deals actually exceeds the minimum guarantee and royalty payable.  Those tools are simply beyond the reach of the creators, even the few who YouTube grants access to Content ID.

And of course, any user of Content ID (big or small) has to sign up to the take-it or leave-it shakedown deal that limits what you can do about it when you catch them.  Which is just another form of the protection rackets.

This criminal enterprise comes in two flavors (at least):  Ad sales for illegal products (like the drugs, counterfeit tickets and the like), and selling legitimate advertising around content that Google knows or should have known was illegal (like YouTube’s monetization of infringing works).  And, of course, Google scrapes data in the background on all these criminal activities to its great–and secret–profit.

As we saw with the drugs case, Google knew exactly what it was doing, and I’m not willing to believe their rudderless ad sales teams don’t also know exactly what they are doing (remember Google’s ad sales team gave credit terms to infringers, and the drugs sting operation also shows that they brainstormed many criminal dodges to deceive Google’s own best practices team).

What little evidence we can lay hands on in the open source demonstrates that Google must know very well that it engages in criminal behavior–why else was Eric Schmidt advised by then-counsel David Drummond to refuse to answer Senator John Cornyn’s questions regarding the drugs case when Schmidt testified before a 2011 Senate Antitrust Subcommittee hearing?  (Also known as “taking the Fifth.”)  After engaging in a weak attempt at misdirection.  Did they think this question wouldn’t come up so didn’t prepare for it?  I doubt that very much.  (If they cooked up this story without the lawyers, this might well have been a conspiracy.  Attorneys take note:  Crime/fraud execution?)

schmidt senate
Eric Schmidt Takes the Fifth on drugs case to Senator John Cornyn: ” I have been advised — unfortunately, I’m not allowed to go into any of the details and I apologize, Senator”

Now that the U.S. Senate is investigating the effectiveness of the safe harbors under DMCA, this would be a good time for the Department of Justice to investigate Google’s business practices and potential criminal activities.  Smells like RICO to me.

As independent composer (and MTP guest poster) Kerry Muzzey highlighted in his recent testimony before the United States Senate regarding Content ID:

My name is Kerry Muzzey, and I am a film and television and modern classical composer.

I am one of the very few independent artists who has access to YouTube’s Content ID system; and most of my experience with notice and takedown has been on YouTube. Content ID has become a core piece of my licensing business: it is the x-ray that reveals the theft of my music to me. This is why I am also nervous about speaking out today – because I fear retaliation by YouTube and Google. I am concerned that they may take Content ID away from me for raising my concerns publicly. The technology behind Content ID is nothing short of brilliant, and I don’t want to lose access to it.

Growing up, my mom always said: “You’re not allowed to complain unless you’re gonna do something about it.” Senators, my being here today is my “doing something about it.” Today, I have the most unique opportunity I have ever had in my lifetime. I have the opportunity to ask Members of my United States Senate to fix a broken law.

Let’s also not forget the way Google is governed (as is Facebook, Spotify and many others).   Larry Page, Sergei Brin and Eric Schmidt hold a special class of  “supervoting” shares, what SEC Commissioner Robert Jackson has called “corporate royalty”.

These insiders get 10 votes for every one share they own of a special class of supervoting stock.  This means that the insiders control over 60% of the voting stock and win all shareholder votes—including votes to appoint the board of directors.

Supervoting shares give insiders absolute control of Google–one of the most successful public companies in commercial history.  Because they control every aspect of Google’s operations, Google truly is their “alter ego.”  One purpose of Google’s lobbying spend must be to keep the corporate royalty out of prison.

These supervoting Google Class B shares are not available to the public.  The public can buy two classes of stock:  GOOGL shares are Class A (one vote per share) and GOOG shares are Class C (no votes per share).  (GOOG shares were issued in a dividend to GOOGL holders.)  GOOGL shares typically trade slightly higher than GOOG which may demonstrate that the market has priced in a lack of meaningful voting rights in GOOGL.

It should not be surprising that Google shareholder meetings are a one-way communication event. The supervoting corporate royalty tell the other shareholders how things are going to be and vote down any move by GOOGL holders to change the status quo—like converting supervoting shares into one share one vote.  As Floyd Norris reported in his New York Times “Economix” column, “Rarely has a shareholder vote been less suspenseful.”

So Google’s profit from evil is not an accident.  If Congress wants to fix the DMCA, let’s fix all of it.  And as U.S. Attorney Peter Neronha discovered ten years ago, that requires a grand jury.


Content Creators Coalition & MusicAnswers Applaud the Revision and Passage of the Music Modernization Act by the Senate Judiciary Committee — Artist Rights Watch

[A brief word–TheTrichordist and MusicTechPolicy are always there to provide a platform for the songwriters, artists, musicians and vocalists when grassroots needs to be heard.  We all have to thank the Content Creators Coalition, MusicAnswers and especially Maria Schneider for enduring the tactics used against them in their unwaivering fight for fairness and transparency for the creator community.  The good protective changes to MMA in Senate Judiciary are due to their efforts and the kind willingness of Senators Grassley and Feinstein to listen to compelling ideas presented by effective advocates.

We also thank all of our readers and supporters for helping to get the word out and taking action.  We would be nowhere without you.  If MMA passes, the collective’s operations will require hyperdiligence from the grassroots creator community around the world, so we commit to keeping the heat on for fairness, transparency and honesty.  In the end, the example set by these brave leaders C3, MusicAnswers and Maria teach us that community is the oversight.  We commit to doing our share of these future tasks and then some if called upon.  We invite you to do the same.]


[Washington, D.C.] – The Content Creators Coalition and MusicAnswers released today the following statement on the Senate Judiciary Committee’s vote in support of the Music Modernization Act.

C3 and MusicAnswers applaud the Senate Judiciary Committee’s vote to advance the Music Modernization Act, while incorporating key changes we had urged to make the legislation stronger, more transparent, and more equitable.

The MMA will strengthen the music ecosystem and all its participants, including songwriters, publishers, performing rights organizations, artists, record companies, music services and fans. It ensures digital music services will pay fair royalties for every song they stream, establish a better standard for determining royalty rates, and eliminate some out-of-date provisions of the PRO consent decrees. In return, digital music services get certainty, legal protection, and new streamlined tools to bring more music to more people at lower cost.

It’s a reasonable bargain, and, therefore, we have consistently and publicly supported the basic construct of the legislation.

We are especially grateful that the Senate Judiciary Committee, led by Chairman Chuck Grassley (R-IA) and Ranking Member Dianne Feinstein (D-CA), was willing to engage with our organizations on ways to improve the bill and include in the Managers Amendment approved today key protections for creators and the public.

As a result, the MMA now provides greater transparency, including rigorous audits to make sure that royalties are flowing to the correct parties, a commitment to educating all music creators about their rights and the royalties due them collected under the new Music Licensing Collective (MLC), a requirement to study and follow best practices in order to find the proper owners of unclaimed royalties, and increased clarity regarding who owns the data generated by the new system.

While we support the legislation and are proud of the changes we have achieved as artist and songwriter advocates, we continue to have concerns about three key issues: whether the entity that is designated as the MLC is being foreordained by the bill and precludes competition with the MLC; the composition of the Board of Directors of the MLC, which is unduly tilted towards major publishers; and the methods used to distribute royalties from works where even using best practices the authors could not be identified.  We urge the full Senate and the House to consider further improvements to those flawed provisions and we call on the Copyright Office to ensure in implementation of the final legislation that no stakeholder group can dominate the MLC and that all royalties are distributed in a fair and equitable and non-self-interested manner.

The process leading to this moment has been strong in many ways. But it has also included its fair share of divide-and-conquer tactics and efforts by powerful incumbent forces to crowd out grassroots organizations like ours and to divide the music community within itself.  We believe that we are strongest when we respect and support each other – a lesson too many in our business still have yet to learn.

We are deeply appreciative of the partnership c3 and MusicAnswers have forged. Together, we represent thousands of writers, producers, performers, and music business professionals, and over the past few weeks we have worked steadfastly to pursue improvements in the MMA. We look forward to future collaboration and welcome the involvement of other collaborative groups and individuals.

via Content Creators Coalition & MusicAnswers Applaud the Revision and Passage of the Music Modernization Act by the Senate Judiciary Committee — Artist Rights Watch

Guest Post by @schneidermaria: An Open Letter to David Israelite of the NMPA, and Anyone Interested in the Music Modernization Act


Dear Mr. Israelite,

I received your point-by-point response that you apparently shared with legislators and interested persons in response to my 10-point critique of the MMA. Thank you for your perspective. Perspective is important. But in my opinion, your letter contains misdirection, many important omissions, and inaccuracies. I explain this below, and in much greater detail in this downloadable PDF point-by-point response to your letter. I’m just giving my perspective, but I think it’s an opinion educated by years in the real trenches of the actual music business.

The letter below is long – I know. But THAT’S how many things are problematic with this bill in my opinion. I hope we all agree, expediency shouldn’t supersede getting things right for music creators and industry sustainability. I ask creators, industry people and lawmakers to read this entire letter with a mindset of getting this bill drafted right. I believe these points aren’t only optimal for achieving success, I believe they’re mandatory for achieving success.

Mr. Israelite, you used the word “confused” several times in referencing my open letter. I’m not confused. But, my perspective is very different than yours. I’m asking you to read my perspective which I know I share with countless musicians and songwriters in this country. I’m asking you to advocate for nine simple “fixes” that will ensure the MMA is a success for music creators, and ultimately, everyone.

We both respect and are deeply grateful for the amazing support we have received from our Congress. That’s wonderful. But the MMA, as currently written, is not yet wonderful. Congress is expecting the MMA to directly help music creators who have been severely damaged from the current streaming market, and I’m throwing out my ideas to get us to that goal.

Here’s a new sobering statistic: This recent article points out how 99% of all streaming on Spotify involves only 10% of all songs. If true, that means 90% of music is splitting only 1% of the financial pie. Who is living on molecules of pie? Musicians and composers I revere: Pulitzer Prize winners, MacArthur winners, NEA Jazz Masters, Grammy-nominees and winners (those you don’t see on the telecast), musical icons, contributors to American and world culture, masterful musicians and songwriters revered in local communities but that aren’t widely known, leaders of orchestras and bands, teachers at conservatories and colleges, and selfless mentors. We are in niche genres: jazz, classical, Latin, world music, as well as hip-hop, folk, gospel, blues, electronic, rock, indie, etc. It’s a massive and diverse group, the vast majority of songwriters in the U.S.

We, the 90%, are the collateral damage in the digital economy as presently structured. And much of it has come at the hands of the very same corporations that you trying to make sure will run this next MMA show. While the MMA has some strong ideas, it vests WAY too much power in the hands of the biggest publishers and streaming companies. Why am I so concerned? Because I and countless colleagues in these niche genres have learned painful lessons we’re not keen on repeating.

Lesson 1: The three major music companies that are locked and loaded to run the music licensing collective (let’s call it Corporation A) are the same companies that allowed themselves to be enticed by the self-serving Svengali, Daniel Ek, whose beginnings were built on infringement (uTorrent). The day Warner, Universal, and Sony bit a huge chunk of poison apple in the form of equity in Ek’s Spotify, they traded their contracted musicians’ and songwriters’ valuable creations for ads. That tectonic shift gave Ek most of the world’s music, it legitimized “free,” and it created a gaping conflict of interest for the Big 3.

Songwriters and attorneys argue if it was a “fiduciary breach.” In my opinion it is a massive breach of trust and ongoing conflict of interest. And as the 90% have suffered a huge collapse in income, inversely, we watch these companies celebrate their earnings from 10% of songs. That conflict of interest and breach of trust are very relevant to the MMA, and this history absolutely must not be ignored in writing the governance sections of the MMA. And, if that reality is painful or upsetting for industry to read, I can only answer that they themselves created it.

Lesson 2: There’s something else occurring as a result of streaming that’s critical to understanding the niche musician’s and songwriter’s perspective. It’s that many, if not the vast majority of record companies, are no longer advancing money for a lot of music on their labels. It’s now the artists and creators, in countless numbers, who are each sinking tens of thousands of dollars into making their own records. Many still go with a label despite having to front the costs themselves just to be part of a distinguished label roster. There are many fine small labels doing everything they can to make that a worthwhile trade, and some still struggle to front budgets. The point is, those niche labels and independent musicians face either a zero, or statistically insignificant, chance of a return on their investment through streaming. Many report barely paying for a sandwich with their royalties.

If one only cares about the top 10% of songs and launching superstars to the stadium echelon, and keeps the blinders on for the rest, I suppose one can claim some successes with streaming. But if one values the wide array of music our country and the world has to offer, then our biggest music corporations have failed us, and failed our culture of music as a whole, by cashing in on Ek’s unsustainable business model. Spotify’s IPO papers confirm to me the streaming model’s income and wealth inequality as well as unsustainability. The 90% knew this years ago.

Lesson 3: As I see it, those set to run the show under the current draft MMA have a terrible track record in this arena: The NMPA owned the Harry Fox Agency themselves and was already once tasked with solving the Spotify mechanical issue. In my opinion, that effort failed miserably: the feuding, in-fighting and finger-pointing that occurred between the NMPA, Spotify, and HFA, and the ugly lawsuits brought by independent songwriters and small publishers resulting from what seems to me to be a collective failure to properly handle and respect mechanical royalties, left these companies acting like the Keystone Cops. Yet ironically, it is the NMPA and the Digital Media Association (DiMA – companies like Google, Spotify and Amazon) that, in my view, are steering all power under the MMA to the same cast of characters, while conspicuously avoiding objective oversight and reasonable checks and balances.

I have no problem with the NMPA or its members and Spotify being involved in the solution. But I have a HUGE problem with them controlling the solution, and controlling the entities that will be formed under the MMA.

These three lessons frame many of our perspectives on the MMA. It’s a grim reality that explains why I don’t trust certain entities to run the show.

Below are simple, specific proposals that I think are rooted fairness and common sense that will greatly will improve the MMA’s actual chances of ongoing success for all of us.

1. Songwriter. If you’ve not yet amended the definition of “songwriter,” will you agree to advocate for a rewrite that would requires a “songwriter” to be someone with a recognized and substantial professional career based on songwriting or composition? By the current definition, even an employee of a publisher who long ago wrote part of a lyric of one song would qualify as a “songwriter.” A definition that gives songwriters and composers that assurance is necessary.

2. Equality. Imagine that Congress passed an Act that would set up a private entity to tackle the issue of “Women’s Health in the United States.” Then imagine that the board of directors was crafted to have only TWO women on the board of TEN people. Pretty outrageous, right? Now, further imagine that women were offered the prospect of the board being expanded to 14 total members, and instead of 2 out of 10 being women, it was now going to be 4 out of 14 (an 8% increase, but still a very small minority). Finally, imagine that the 10 male members were all executives at big Pharma, earning big salaries and bonuses from expensive and very controversial women’s pharmaceuticals. We’d all find that horribly outrageous, right? Now, imagine how infuriated women (and men of conscience) would be if the trade association for Big-Pharma consoled women who advocated for a balanced board, with the following catchphrase: “don’t let the perfect be the enemy of the very very good.” (your words at the end of your letter)

I hope this spot on analogy offers you and others perspective. Therefore, can we agree that the “Collective,” (I call it Corporation A) should have governance that, as between publishers and songwriters, has at VERY LEAST, 50% songwriters – songwriters chosen by songwriters themselves? Independent songwriters deserve an equal presence with publishers on a board that will control OUR works and economic future. Who wouldn’t support a 50/50 board?

3. Board Diversity. Can we agree that the Board for the “Collective” (Corporation A) would be MUCH better if it also had several “outside” totally independent voting board members, especially members who have actual experience and success in leading the development of new software, database and cloud based systems? There are countless such all-stars and experts. Corporation A is really a technology company that will be based on system design, program management, and vision in the field of data management and cloud services. To achieve success with that tall order, technology expertise must be included on the governance board itself, not relegated to some “advisory” committee, or worse yet, to some downstream subcontractor (who could be a conflicted DiMA member like Google).

What on earth are 10 publishers doing at the helm of a technology company? If our company was tasked to design and build a new artificial heart, we’d want the worlds’ best surgeons and bioengineers on the board, not 10 big insurance company representatives and 4 sick patients. Independent objective technology experts (e.g., obviously not Google or anybody else from, or related to, Corporation B due to conflicts of interest) will bring more value to this board than the songwriters and publishers combined. I am confident our elected leaders would agree that this would markedly increase the chance for this “technology company” to be a success.

4. Open Competition. Can we agree that a) the publishers should not have a veto power over who is selected to be Corporation A; and b) the members of DiMA should not have a veto power over who is selected to be Corporation B? The language in the MMA, “endorsed by, and … substantial support of,” (used for both Corporations A and B, pages 17, line 21, and page 58, line 8 of the Government PDF of the MMA) basically gives outright veto power to the big players. I am willing to bet that Congress would be more comfortable if the selection of these two entities was done in an open, competitive process, where creative and talented teams of people: small business, minority-owned, women-owned, technology-based collaborative teams could freely assemble and compete, and would be assured of a fair shot at winning this great opportunity.

The Register of Copyrights should be able to pick these two entities through an open market, not have her choice restrained by a closed back room. Replace the language, “endorsed and supported” with language requiring that each entity: “will be chosen by the CO through an open and competitive process, where selection is based on the strength and merits of each applicant, and where conflicts of interest are disclosed and addressed.” Our government mandates that same process even for choosing a vendor for toilet paper! Surely we’d expect just as much when entrusting an entity to guard the economic future of music creators. Wouldn’t we?

5. Business Continuity. Can we agree that if either Corporation A or B goes belly up, and/or the CO needs to pull the plug, the MMA should clearly state to everyone that none of the software, data analytics, or algorithms, belongs to the entity? We can all fairly agree that Spotify would not exist if not for the music, right? So then, considering that this whole investment is basically underwritten by revenue generated by the music that songwriters have written, we need to be assured of “business continuity” should things go sour.

The MMA is NOT intended as an opportunity for a private entity to build trade secret assets that could further cripple the industry. We cannot allow this huge investment in technology to be usurped by any party should Corporation A fail in living up to its expectations. It’s Business Continuity 101 stuff. So rather than assure us that somewhere downstream, there MAY be regulations that might clarify this as you suggest, let’s build that HUGE point right in the section of the MMA (page 31, line 16) that addresses the Database. Something simple, like: “All data submitted to the Collective will be owned by those parties submitting the data, and is licensed to the Collective for the sole purpose of fulfilling its duties under the MMA, and will not be assigned to any other party. All data analytics, algorithms, software, APIs, software tools, resultant data, and aggregated data developed by [the Collective] or its subcontractors will be held in trust by the U.S. Government, and will not be exploited or encumbered by [the Collective] for any purpose other than as authorized under this Act, and will not be encumbered or sold or assigned to any other party.” Should something unforeseen happen, we’ll all need to be protected.

6. Meaningful Audit Rights. Can we agree that meaningful audit rights for independent music creators are necessary? After all, the MMA IS stripping away our rights to bring a suit for infringement, so let’s look at the tradeoff: The current provisions (page 42, line 5, through page 45, line 20 of the government PDF) are great, if we’re talking about Sony, Universal, and Warner, that can afford Deloitte. But if I want to audit a $25 payment I received from Spotify, I can’t be expected to hire Deloitte for the impossibly complex multi-step process laid out in the MMA. Two simple requirements wouldn’t hurt anyone: 1) a streamlined audit right for small amounts (details could be ironed out through regulation), and 2) spot audits every six months of random independent music creators’ accounts, just so the CO is exercising some ongoing QA/QC on the Collective’s systems and performance. Both create great incentives for the Collective to do a good job, saving money in the long run, and increasing everyone’s confidence.

But there’s something else lurking in those audit rights: Today, if I sue someone for infringing my copyright, I have the right to recover attorney’s fees in certain cases. But under the MMA, not only is that absent, but I’d be required to hire a CPA and pay for my own legal and audit fees, even if I win. That’s not fair in light of what we’re giving up. We deserve the right to recover our reasonable costs if we’ve been wronged by Corporation A or B. It’s fair, and keeps entities on the up and up. That’s the purpose of the attorneys fees provision in the current copyright law. Why should we give that up?

7. Black Box. Independent creators will most likely be the ones who won’t know to sign up with the Collective, or who won’t have filed a registration with the CO. Their money, largely, will end up in the black box. I meet countless musicians and songwriters who know nothing about mechanical rights or copyright.

My opening statistic showed that 90% of the music on Spotify shares 1% of the pie. The black box money will most assuredly be out of that group. If Corporation A can’t control their budget, why should these unpaid creators unknowingly foot the bill? Shouldn’t the money be “borrowed” from those that MOST benefit from the MMA? (If it’s even legal for trustees to “borrow” money held in trust.) This bill needs to create meaningful incentives like this for the Collective to not overspend. (Not to mention this “borrowing” right of the Collective seems to be contradicted by the obligation to hold those royalties in a black box for 3 years.)

Secondly, the idea that this black box money should be distributed (after 3 years) to songwriters and publishers according to market share is absolutely abhorrent. I don’t often bet my life, but I’d bet my life that Kendrick Lamar, Taylor Swift, Bruno Mars, Lady Gaga – name any bigtime music creator – would not want to receive black box money belonging to independent music creators who haven’t received it because they didn’t yet know how to get it, or whose song had a wrong spelling, wasn’t filed at the CO, or whatever. No music creator would knowingly endorse something so skeevy. That money should be held until it is claimed, and if after many, many years, it’s still unclaimed, perhaps it could go to scholarships or something else worthy.

8. Immunity. Some legal commentators have given “just cause” to be concerned whether parts of the MMA are unconstitutional. Today, many creators don’t file copyrights: it’s expensive, and it’s not required under international laws. I have that right under the Berne Convention that the U.S. has signed. If a band of young kids in Peru, Canada, Nigeria, the UK, you name the country, records 10 of their songs, they submit them to Spotify, and it goes viral, are you telling me that they won’t get paid until they figure out that they need to first file the papers and possibly pay hundreds of dollars in fees to the U.S. CO to register the songs in the U.S.? That’s the way I read the bill. Can it be that we’d require the entire world to pay registration fees to the U.S. Copyright Office before they are allowed to get their first dime from Spotify? In addition to possibly being unconstitutional and in violation of rights under the Berne convention, it smacks of musical colonialism. I suggest the MMA be fixed so creators aren’t left with the short stick.

9. Immunity for the “Collective” (Corporation A). If you hired a financial planner for your mother, and that planner gave you a contract saying, “Even if I am negligent, sloppy or incompetent, and/or even if my services deviate from the standard of reasonable care, you and your mother can’t come after me when I lose all of your money,” you’d be shocked at their nerve. The same goes for surgeons, accountants, or anyone else in society that owes us a duty of care. So, I was shocked to read the fine print (page 93, lines 9-24) about the Collective’s lack of liability, should it screw up.

The MMA basically says that the Collective “shall not be liable to any person or entity” for negligence, sloppiness, or incompetence, but can only be liable if proven “grossly negligent.” “Gross negligence” is nearly impossible to prove. In fact, “gross negligence” basically requires conduct to be intentionally reckless – conduct so bad, and so rare, insurance companies won’t even insure against it.

As I read the MMA, the “Collective” (and its board) are basically immune from liability, even if they completely screw up the whole system through incompetence and negligence, and even if there are millions lost. In my opinion, that’s extremely irresponsible.

Let’s change the tricky phrase “in a manner that is not grossly negligent” to “in a manner that uses reasonable care, and is not otherwise negligent, or grossly negligent.” Let’s make sure Corporation A would be liable if it acted with incompetence, or negligence.
None of these points are unreasonable or illogical. Each directly reduces risk of failure. I would hope we’d all advocate for these common sense, simple language changes to the MMA.

Let’s create a new version of the bill that maximizes the chances of success, minimizes the chances of conflicts of interest and/or failure, and fulfills the fundamental goal of Congress to directly help the music creators.

And for anyone who received David Israelite’s letter and would like to read my point-by-point response, you may download it here.

You can read my original open letter, “The Music Modernization Act – The Devil is in the Details,” here.

Maria Schneider