We welcome Mark Mulligan’s Music Industry Blog to the blog role, a good starting place is “Why The ‘Music As Free’ Argument Just Doesn’t Hold Water” (and neither does the Music is Water argument!)
(Thanks to Dean Kay for the t/o)
Roy Disney is underway once again. A great sailor, a great fan of sailing, and an all around stand up guy. And then there was that movie company.
It will be interesting to learn more about the how, when and why, and more importantly who about this case.
Oh, I’m sorry, that’s “Google Set To Market Own Phone Next Year“. How do you spell “tying arrangement”? Sherman Act, Sherman Act…I know I had it somewhere….
Not to kick a guy when he’s down (although I can’t say as the courtesy has ever been reciprocated), the judge in the Tenenbaum case summed up the fair use analysis of Charlie the Gambler and the entire bunch of poker players from the law school whose name cannot be said:
“Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web,” Gertner wrote. Because of her concern about the imbalance of resources between the music-industry plaintiffs and Tenenbaum, the judge wrote, she did everything in her power to permit him to make his best case for fair use. She was even prepared, she said, “to consider a more expansive fair use argument than other courts have credited.”
But the defendant would have none of it. Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent. … Defendant’s version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.”
When are these people going to start getting the message that they have all (from Google to Tenenbaum) gotten really truly awful advice? How many more cases do they have to lose?
Remember this: Utterly standardless and wholly without support.
Attention law students: Avoid having a judge use these words to describe your work product. You can only do this if you are a tenured professor at that law school.
The very well funded Michael Geist and the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic are really seriously barking up the wrong tree if Geist’s most recent op-ed is to be believed–although he’s already acknowledged “an embarassing math error“–but it seems that there is an embarassing copyright law error as well.
Apparently, there is a class action suit brewing in Canada against the major labels over pending and unmatched mechanical royalties, and class action counsel are—you guessed it, the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP. (Followers of the trade will recognize “Samuelson-Glushko” as a cabal of anti-copyright academics in the States that has recently begun exporting their brand to Canada.)
As Geist acknowledges “[He is] adviser to the Canadian Internet Policy and Public Interest Clinic, which is co-counsel [to the class action], but [he has] no involvement in the case. (I wonder if the “Canadian Internet Policy and Public Interest Clinic” is the same thing as the “Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic”? Why wouldn’t Geist use the full, glorious title in this important op-ed?)
Geist, like many others before him, makes a fundamental mischaracterization, or perhaps…a mistake. He seems to be confounding the “song” with the “sound recording”, that is the musical composition (©) copyright, controlled by publishers or songwriters, with the sound recording ((P) copyright), usually controlled by record companies but sometimes by artists.
Here it is: “[T]he names of the songs on the CDs are placed on a “pending list,” which signifies that approval and payment is pending. The pending list dates back to the late 1980s, when Canada changed its copyright law by replacing a compulsory licence [for songs] with the need for specific authorization for each use [of the song]…. Over the years, the size of the pending list has grown dramatically, now containing more than 300,000 songs.” (emphasis mine)
So far so good. Geist is still comparing apples to apples.
But now here come the oranges: “From Beyonce to Bruce Springsteen [who I don’t believe is even represented by CMRRA], the artists waiting for payment are far from obscure, as thousands of Canadian and foreign artists have seen their copyrights used without permission and payment…. After years of claiming Canadian consumers disrespect copyright, the irony of having the recording industry face a massive lawsuit will not be lost on anyone, least of all the artists still waiting to be paid.”
Notice what just happened—Geist just switched from talking about the copyright in the songs to the copyright in the sound recordings—songs have writers, recordings have artists. Totally different sets of rights. The compulsory license Geist refers to? Song not sound recording. Repeat after me: Songs have writers. Recordings have artists. Songs have writers. Recordings have artists. Songs have writers….
The point isn’t that the artists are obscure, the point is that for some reason—usually because the publisher hasn’t come forward—the label hasn’t paid the royalties they have accrued for the songs. This is, of course, a very important plank for the anti-copyright crowd to sustain because their “two wrongs make a right” attack on artists frees them to rob artists blind because “Hollywood” is already doing it. So once Hollywood has finished raking artists over the coals, it’s OK if file sharers and the Alcan of IP finish them off. Boy, that makes sense.
And here it comes: “[The potential for statutory damages] may sound outrageous, yet they are based on the same rules that led the recording industry to claim a single file sharer is liable for millions in damages.”They actually are not based on the same rules at all. Because of the bad advice that file sharers got from Geist’s fellow travelers, these people got no license at all and were defiant about whether they even were subject to licensing laws. Again, apples and oranges.
Yet, Geist doesn’t seem to care enough about his subject to actually get it right. I simply cannot believe that he doesn’t know better. That would such a shallow level of research that it is beneath the very well funded Canada Research Chair that he holds. Yet like so many other academics—starting with both Samuelson and Glushko–Geist has no idea how the business operates—and doesn’t take the time to find out. Geist’s lack of curiosity about the way things work also causes him to mischaracterize the number of pending tracks and also the number that have been paid.
This dynamic process causes the total number of pending tracks to change on a daily basis, and can only be determined on a snapshot basis with access to the actual accounts–which Geist doesn’t have.
Record companies and publishers just settled this issue in the US without incident, by the way–and also without the help of the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.
One can’t help but think that if the settlement is extended to Canada (which these things usually are), that’s going to knock a big hole in the plaintiff class which probably isn’t so good for whatever the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic is getting out of the deal. So maybe that explains why Geist is getting worked up about the issue now.
Let’s remember that the issue in the case is the “pending and unmatched” mechanical royalties for songwriters that are sitting on the record company’s books. Here’s what actually happens:
Artists typically have the contractual obligation to obtain mechanical licenses for every song they record. Record companies pay the mechanicals for the records they sell under the terms of these mechanical licenses. As an accommodation to their artists, record companies usually undertake the licensing process, but the obligation lies with the artist in 99% of the cases.
Artists also grant mechanical licenses in songs they write, and those licenses are granted under their artist agreements. However—artists frequently co-write with others who “outside” (meaning not a member of a group artist) and may “cover” songs written entirely by others. The artist may or may not provide their record company with complete information (percentage ownership, name of co-writer and contact information for the co-writer). This is the inception of the pending and unmatched mechanical royalties.
The way these matters typically get resolved is when the big licensing authorities—CMRRA in this case—review payments from the record companies, make demands and/or settle these claims. (CMRRA also exercises its audit rights occasionally.) This is particularly appropriate in the case of CMRRA because unlike the Harry Fox Agency, CMRRA represents 90% or so of all writers and publishers in Canada.
That’s really it. If the pending songs become millions of dollars, there’s really only one entity to look to—the publishers. The pending doesn’t get to be millions because publishers are diligently looking for the money. Not only should the publishers look for their money, the writers who are not published can rely on CMRRA to collect their money, or they can go after it themselves.
Here are some typical reasons why songs end up in the “pending and unmatched”:
Some but not all of the writers have been identified by the artist and the producer;
One of the writers has agreed to license 100% of their undivided interest;
The artist has identified all of their co-writers but one or more of the co-writers have not responded to a request for a license;
The artist has identified all of the writers, but a writer’s publisher has not yet responded to a request for a license;
The artist’s co-writers have not responded to an advice letter;
The writer cannot be found (particularly true with songs that are old but are in-copyright);
There is a sample that was discovered after the release and the owners of the copyright cannot be found; and
Publisher disputes over splits or ownership (big publishers may have as many as 100 subpublishing groups (not to mention co-publishers).
If the artist’s recording is released on a major label and many independent labels, the label accrues a royalty at the statutory rate or the music publishing mechanical in Canada and when the writer is found or the agent for the writer settles an audit covering the pending work, the writer is paid.
This is essentially what just happened in the US.
The idea that Michael Geist—someone who works tirelessly to undermine copyright everywhere he can—is somehow a friend to artists or to songwriters is simply a pathetic joke.
The idea that Geist is trying to twist David Basskin’s testimony around to feather his own anti-copyright nest makes about as much sense as Charles Nesson’s defense tactics.
As Professor Richard Epstein said of the U.S. Supreme Court’s review of In re Bilski, “If intellectual property is going to be put in the hands of a bunch of stand up comics, we are in serious trouble.”
Somebody get the hook.
I freely admit that I haven’t gotten around to reading the latest and greatest by Google VIP Patry, and I also admit to having had some fun with it (I have at least read the title–”Moral Panics” or as we call it around here, Don’t Be Moral). Others have had the pressure of actually reading it.
Even the EFFluviati have some limits as they strain to be at least somewhat complimentary in their review of Don’t Be Moral at the the Deep Thoughts blog. (Although I’m not quite sure what the downside is of being critical as it is unlikely that the EFF would ever get disappeared in Google search.)
But in the “if I only had a brain” category, IP Watch manages to come up with a big slobbering wet one full of straw men of the fallacy kind for the Don’t Be Moral World Tour–the VIP was in Geneva (a trip paid for by his publisher, I’m so sure) and gave yet another unintentional justification for why the ACTA negotiations are not being held there. (Funny–Montreaux is just across the lake. So much music history and so much music hate within shouting distance of each other. Well…boating distance.)
“I would not be just a nothin’ my head all full of stuffin’
My heart all full of pain
I would dance and be merry, life would be a ding-a-derry,
If I only had a brain….”
[If I Only Had a Heart music and lyric by Harold Arlen and E.Y. Harburg, EMI Feist Music Publishing, from The Wizard of Oz, Warner Bros. Studios]
In researching a piece on the well funded Michael Geist, I was searching for his “LawBytes” columns on Industry Canada. The search results happened to bring up some search results from within the Industry Canada contracts online database.
Several results, in fact.
October 1 to December 31, 2004
Contract 5014050 – 2004/12/20 – 2004/12/20 – $24,985.00 – http://www.ic.gc.ca/app/ic/cr/lstCntrcts.do?lang=eng&qrtr=4
April 1 to June 30, 2005
Contract 5015474 – 2005/05/12 – 2005/06/10 – $18,725.00 – http://www.ic.gc.ca/app/ic/cr/lstCntrcts.do?lang=eng&qrtr=6
July 1 to September 30, 2005
Contract 5015851 – 2005/07/18 – 2005/10/31 – $10,700.00 – http://www.ic.gc.ca/app/ic/cr/lstCntrcts.do?lang=eng&qrtr=7
April 1 to June 30, 2007
Contract 5019637 – 2007/05/09 – 2007/09/14 – $21,200.00 – http://www.ic.gc.ca/app/ic/cr/lstCntrcts.do?lang=eng&qrtr=21
July 1 to September 30, 2007
Contract 5019981 – 2007/08/13 – 2007-09/10 – $10,176.00 – http://www.ic.gc.ca/app/ic/cr/lstCntrcts.do?lang=eng&qrtr=41
Not one mention of the well-funded Geist by name, but 5 contracts for what sound essentially like some sort of nondescript “consulting” type services (e.g., “Other professional services not otherwise specified” or “management consulting”).
$85,786 in total of what appears to be government money paid to “Lawbytes, Inc.” directly.
Now what is Lawbytes, Inc.? The only associations that I can find in Google are between Industry Canada and this company. Otherwise, the company does not seem to have ever done anything.
Where else do we find the name “Lawbytes”? A few places, the odd newsletter here and there around the world, but the main place you find “lawbytes” associated with Michael Geist is his column and webaddress (which now resolves to his blog), and the only place you find it associated with Industry Canada is with nearly $100,000 of payments for unspecified consulting work.
I wonder what Lawbytes, Inc. did for that money and who its officers and directors are. For that matter, where—if anywhere—was it incorporated? If anyone has any ideas about how to find this out, I’m all ears.