New bill threatens artists’ rights
Volume 117, No. 8September, 2017
As many musicians already know, there has long been an effort to amend copyright law to ensure that the Digital Millennium Copyright Act and other statutes better protect musicians and other content creators. However, big tech companies and their allies in Congress continue to attack the rights of artists by lobbying for legislation that preserves the ability to exploit content for free. Among the latest attack is the Transparency in Music Licensing Ownership Act (HR 3350), a bill that on the surface appears to reform copyright law for the better, but in effect places a heavy burden on content creators. We ask musicians to educate themselves by reading David Newhoff’s op-ed below. Then use the Local 802 legislative toolkit found at www.bitly.com/2wuDM19 and join the Local 802 Artist Rights Caucus by sending an e-mail to ArtistRightsCaucus@gmail.com. For more information, contact the Political Action Department at (212) 245-4802, ext. 176.
I have said a few times that contemporary politics in the United States is increasingly reminiscent of the turbulent 19th century. We only have 2.4 centuries of existence as a nation, and it took half of that time just to begin to fulfill the promise of equality – principally by advancing of the rights of labor relative to the power of capital. Now, sadly, we seem to be moving in the opposite direction; and a new bill in the House reveals that big capital – shiny digital-age capital – is not quite done eviscerating the rights of songwriters and musical artists.
As long as U.S. public policy is in a general state of chaos, we might as well write a bill that would allow corporations the size of Google and Amazon to steal from songwriters with impunity. That’s not how Rep. Jim Sensenbrenner’s (R-WI) “Transparency in Music Licensing Ownership Act” (HR 3350) is being presented by its proponents, of course, but that’s basically what it is. And sources tell me there are murmurs within the Judiciary Committee about applying the same rationale (to use the word kindly) to all copyrightable works in addition to music.
A BIT OF CONTEXT
Songwriter David Lowery (of Cracker and Camper Van Beethoven) led a class-action suit against Spotify for publicly performing unlicensed songs. The streaming company claimed it had made every effort to find the correct parties to pay license fees, but could not locate them. Normal behavior would suggest that you don’t use the work until you get the license; but asking permission is just not the Silicon Valley way. Hence the lawsuit, which was settled this past May with Spotify creating a $43.4 million fund to compensate the publishers and songwriters whose works were used without license.
Then, as reported in detail by attorney Chris Castle, major music-streaming services – Google, Amazon, Pandora, and Spotify – have been exploiting a provision in the copyright act that was originally designed for single-use, good-faith actors, but which is now a giant loophole for predatory corporations with big computers. Section 115 states that if the USCO record does not contain address information where a rights holder can be served, a prospective user of a work may instead file a Notice of Intent with the Copyright Office.
The big data companies have been abusing this provision by filing millions of NOIs against songs whose authors can very much be found, if one actually looks. As Lowery notes in a recent post on The Trichordist, Google allegedly could not find Brian Wilson and so filed an NOI for an obscure ditty called “Surfer Girl.” Think of this NOI maneuver as a temporary liability shield for mass infringement – not an outright exemption so much as an elaborate stall tactic – a hack – that can only be achieved by companies with big computing power. Meanwhile, creating an outright safe harbor for mass, corporate-scale infringement requires legislative action, and that’s where Rep. Sensenbrenner’s bill enters the story.
H.R. 3350 IS NOT WHAT IT SEEMS
On the surface, Sensenbrenner’s bill looks like a modernization initiative. Ostensibly, the proposal would amend the copyright act by mandating that a new database for musical works and sound recordings be created and maintained by the Register of Copyrights. The bill is being sold as a means to more efficiently get artists paid by updating and fixing the public records. And while nobody can claim the current, searchable database of the USCO is up to par, this is A) not the reason Google can’t find Brian Wilson; and B) not an issue that will be ameliorated by this half-baked legislation. Most insidiously, this bill threatens rights holders’ ability to enforce their copyrights at all.
Copyright Office modernization is a much-desired, highly-politicized, and underfunded goal that has been in the proverbial works for years. As such, it seems hardly efficient to introduce legislation, which implies that there is now some urgency to create this database for two categories of works. Suddenly, we need to develop a music database (which happens to be redundant to those maintained in the private sector) outside the context of any broader agreement about USCO modernization and the appropriations necessary to achieve that outcome.
This suggests that the urgency of Sensenbrenner’s bill is driven by the combined $1.5 trillion worth of corporate entities represented by a lobbying group called the MIC Coalition. Comprising the above-mentioned music streaming companies, terrestrial radio networks, consumer electronics companies, and hotel and retail giants, what these industries like about HR 3350 is that it directly weakens a rights holder’s ability to enforce his copyrights, period.
While many critics complain about statutory damages, they are fundamental to any rights holder’s ability to enforce a claim of copyright infringement. Proving that an infringement has occurred is often quite straightforward, while proving exactly how much harm a specific infringement has done to the owner is far more subjective. For instance, some harm may be qualitative and hard to value in monetary terms. Thus, the federally-mandated penalties for infringement act 1) as a deterrent; and 2) as an incentive to settle the majority of relatively simple cases in which attorneys for both parties typically know what the outcome of an otherwise costly trial would be.
Registration with the USCO is already required in order for a rights holder to be eligible for statutory damages in a prospective litigation. But the provision in Sensenbrenner’s bill would mandate that rights holders register via this new database or forfeit their eligibility for statutory damages. So, among the unanswered questions this bill begs is what it would cost rights holders to newly register and/or maintain their records in this as-yet-undeveloped database. For instance, would an out-of-date phone number automatically nullify a rights holder’s eligibility for statutory damages in a litigation? And what would it cost a rights holder like a photographer, with thousands of copyrights, to change every record – depending on how the database is designed?
In a piece for NPR, Andrew Flanagan calls HR 3350 “opaque” and quotes attorney Lisa Alter as saying, “It’s basically a prophylactic for copyright infringement.” And that’s exactly what it looks like to rights advocates – a preemptive measure to evade liability for mass infringement of works, disguised as a modernization mandate. It even has the word transparency in its name to help with that confusion.
ALL CREATORS SHOULD REJECT THIS BILL
To quote Chris Castle, “It’s rare that the Congress can accomplish the hat trick of an interference with private contracts, an unconstitutional taking and an international trade treaty violation all in one bill.” But he asserts that HR 3350 would achieve all three of these feats in a single act. In previous writing for IllusionOfMore, I proposed that Napster gave us Donald Trump, which was just a provocative way of saying that I believe we accelerated the devaluation of labor and labor rights relative to capital when we presumed to reject the copyrights of musical artists and literally gave the artists’ money to tech VCs and criminal organizations. Apparently, that narrative is still being written. Songwriters and musical artists are still the proverbial canaries in the coal mine; and it’s unclear if anyone will notice if they stop singing.
© 2017 David Newhoff. All rights reserved. Reprinted with permission. David Newhoff is a writer, copyright advocate and blogger for The Illusion of More, a blog that is part original editorial, part investigation into the world of copyright protection and the digital ecosystem. The blog is essential reading for people particularly interested in copyright and intellectual property, and can be found at www.IllusionOfMore.com.