This has been a good week for artist rights–the Turtles struck a major blow in the struggle against the new boss in their case against Sirius to protect the rights of artists who recorded prior to 1972. What should we expect now from new boss companies like Pandora, Sirius, YouTube and Clear Channel? When we remember that the new boss is far, far worse than the old boss, there are certain events we can anticipate. No money, bigger alliances against us and crony capitalism on steroids. I’d love to be wrong, but don’t be surprised if I’m right.
1. No Payments and Scortched Earth Litigation: While it would be the right thing to do, my prediction is that it will be a frosty day in Hell before the new boss will ever pay a penny to pre-72 artists, musicians or background vocalists without a final nonappealable judgement following absolute scorched earth litigation. The one advantage to artists about this is that the new boss litigation will bring into sharp focus exactly who these people are and whose side they’re on. Artists will get a reminder of who they’re dealing with every single day of the lawsuits–that could go on for many years. Yes–they have that much disdain for artist rights. You have to ask yourself when does disdain cross over into something much darker.
2. Alliance of Big Tech and Big Radio: Don’t forget that broadcast radio is directly implicated by the Turtles decision. Even though a Clear Channel was not a defendant, the decision could easily be interpreted to require a public performance license for pre-72 recordings at terrestrial broadcast radio. This is the very issue that the National Association of Broadcasters has been fighting for decades, spending probably over $100 million to stop artists getting paid for radio play–which just happens to be the damages award that the Turtles asked for in their case against Sirius. (So you have to ask, what if they just paid the royalty like every other country except a handful such as North Korea and Rwanda.)
As we saw with Pandora and Sirius’s disastrous adventure with the Internet Radio Fairness Act (“IRFA”) and the Internet Radio Fairness Coalition, the NAB no longer has to fight artists by themselves. No, they have company. Pandora is a member of the Digital Media Association (DiMA) for starters, which includes Amazon, Google and Apple as members. I would bet that the market cap fluctuation of DiMA members on a brisk trading day exceeds the worldwide market capitalization of the entire music business.
And this doesn’t include DiMA’s alliances with the Computer and Communications Industry Association and the Consumer Electronics Association. Here’s the panel at a recent “invitation only” DiMA “Congressional seminar” on Capitol Hill:
Expect to see the IRFA alliance reanimated to oppose us in litigation and especially in lobbying. And remember–friends don’t let friends get IRFA’d.
3. Crony Capitalist Lobbying: I would expect to see Pandora and Sirius trot out the old standbys of “platform parity” and “full federalization” seasoned with incantations of “innovation” and “don’t break the [FILL IN BLANK]”. It likely will be phrased like this: “We would be happy to pay if all platforms were treated the same to preserve innovation and consumer choice.” (It’s unlikely that any royalty payment increase will be passed on to consumers.) In the case of the Turtles, this will mean that broadcast radio has to pay for pre-72 on terrestrial. These statements will be greeted by tech industry lobbyists and publications as though someone had presented some self-evident wisdom. Google Shill Listers will likely trumpet this as an issue of fundamental fairness, don’t break the [FILL IN BLANK] yadda yadda. Or perhaps in the positive as in “Break the free market”, the DIMA mantra. A THREAT TO DEMOCRACY AS WE KNOW IT.
Because it’s so fair to take advantage of a self-defined loophole that at least one judge thinks is a mirage. And it’s so democratic to lobby your way to commercial advantage. (So I don’t want to hear a peep from any of these people about Citizens United or campaign finance reform.)
You can also expect to see the combined lobbying brainpower of companies with over a trillion dollars in market value introduce legislation written by their lobbyists that will compete with the Internet Radio Fairness Act for cruelty. This may well be an amendment to the RESPECT Act that will effectively gut it under the guise of “platform parity” or “full federalization”.
Understand what “full federalization” means. Pandora has been saying they’d support the RESPECT Act if it only provided for “full federalization” of pre-72 recordings. What that means is that Pandora wants the federal government to preempt any state law sound recording copyright protection. This would effectively “federalize” and gut state law so that all the federal defenses to copyright infringement would be available. Companies like Google would love that to no end. This is because Google does not get DMCA safe harbors on pre-72 recordings (I predict this is the next big artist lawsuit). How this helps Pandora, I don’t quite see, but then Google’s Doubleclick handles all their advertising–that is, controls their revenue–so go figure.
So when you hear “full federalization” think “fully formed opportunity to screw you over”. They will pass this off as supporting artist rights, by which they mean the “termination rights”–the rights of authors to terminate transfers and licenses established under the 1976 revision of the U.S. Copyright Act. (Specifically pursuant to Sections 203 and 304(c) for those who are reading along.) They won’t tell you that most recording artists will have a tough time qualifying for termination rights for a host of reasons starting with work for hire, the termination applies in the US only, and a few other things. Like they’ve never met an artist right they didn’t want to gut. Not that it’s not worth dealing with the termination issue for pre-72 at some point–it is. It’s just not worth giving up all the compensation rights for 50 years or so of recorded music in order to maybe get a handful of those artists covered. That issue can be dealt with in regular order and separately.
In other words–pre72 artists don’t have a termination right now, but they do have a right to be compensated. Like the bully in the playground stealing your lunch money, they want you to feel like they really do have your nutritional interests at heart if you’d just lick their boots clean.
Also known as ice in winter. Because whatever it is that Pandora and Sirius choose to do, we know from past performance it will not be the right thing to do.
So fasten your seat belts, kids, it’s going to be a bumpy night.
Register in September. Vote in November.
Music Technology Policy 
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