Category: Music

Public Knowledge Attack on CLASSICS Act Typically Unsound

In my last post on this subject, I asked why an organization like Public Knowledge would criticize the CLASSICS Act when there is no apparent downside for consumers if the bill becomes law. That post suggested PK’s motivation is more marketing for the service providers rather than advocating a public interest; but as promised, I will try to kick the tires on the specific law/policy claims being made against this bill.

To do this in a somewhat concise post, though, I have to concede that CLASSICS is a narrowly-tailored amendment to the copyright law, one designed to allow the majority of relevant (i.e. most likely to be played via commercial platforms) pre-1972 recording artists to participate in the current market. In practical terms, that’s what the act will achieve. In a more theoretical/historical context, CLASSICS is not a complete answer to the oddball history of U.S copyright vis-a-vis sound recordings since at least the 1920s.

So, it’s important to keep in mind that some of the criticisms of CLASSICS rely on more than hypothetical circumstances; they rely on alternate histories for the simple reason that the works we’re talking about have never been part of federal copyright protection. To make matters more complicated, the exclusive right addressed in the bill—public performance of sound recordings—was not part of the federal statute until 1995, and only then established for certain types of digital transmissions.

The CLASSICS Act seeks to harmonize some of the inconsistency in the law for the sole purpose of enabling certain, relatively contemporary, owners of sound recordings to share in the digital streaming market. For instance, it’s simply illogical that the author of a hit from 1970 is not entitled to the same royalties as the author of a hit from 1973. To achieve this goal, CLASSICS eliminates the 1972 threshold while leaving the existing terms and limitations intact. Nevertheless, as the bill moves to the Senate, critics are now responding as though it represents a substantial change that will exacerbate faults they already find lamentable in U.S. copyright law.

Doesn’t CLASSICS Extend Terms?

The claim most likely to get the attention of most people is that CLASSICS creates a major term extension for pre-1972 recordings. This usually comes with the eye-popping bullet point that works are being granted 144 years of protection! But the fact that one cannot extend terms which never existed is a point of more than semantic relevance. While it is true that 2067 minus 1923 does equal 144, Public Knowledge’s own post states that all pre-1972 sound recordings, currently under common law copyright, are already federally mandated to terminate on February 15, 2067.

That’s the same termination date called for in the CLASSICS Act. So, regardless of how one feels about copyright terms in general, this bill leaves the current terms in place for this particular class of sound recordings. At the same time, it is not at all clear that these sound recordings presently enjoy a public performance right under common law copyright (see Stephen Carlisle’s posts on the Flo & Eddie case in Florida as an example). As Terry Hart points out in yesterday’s post on Copyhype, “Say, for example, CLASSICS passes this year and goes into effect at the beginning of 2019, that gives pre-72 sound recording artists and owners an effective digital performance right ‘term’ of 48 years (2067-2019=48).”

It’s also worth noting that common law copyright is theoretically perpetual. But without wandering into the marshlands of potential litigation stemming from that legal bugaboo, suffice to say the CLASSICS Act should mollify critics because at least it establishes an expiration date for these works that is decidedly sooner than never.

Why Not Just Federalize All Pre-1972 Sound Recordings?

Public Knowledge’s argument that CLASSICS is “bad law” seems to rest substantially on the premise that it is inadequate in contrast to bringing all pre-72 sound recordings under federal law. This appears reasonable enough on the surface. All recordings “published” before 2/15/1972 would expire 95 years after their publication dates, and we would know what’s protected, what’s in the public domain, and where the expiration dates are, subject to the terms of the 1909 Copyright Act. This would certainly mean that a lot of sound recordings currently slated to fall into the public domain in 2067 would enter the public domain much sooner, BUT…

Although PK is correct that the Copyright Office in 2011 advocated a path to full federalization of pre-1972 sound recordings, that report also outlined the substantial legislative burden involved in migrating, for instance, state law determinations of ownership over to the federal system. Full federalization of these sound recordings is a monumental task that, at best, would be a very long slog in Congress, if it survived at all. While that played out, the copyright status of the sound recordings would not change—they would remain protected until 2067—and the pre-72 artists would continue to enrich the playlists of subscription services without reaping any of the benefits.

Not to be callous, but the process of legislating full federalization of these recordings could easily last longer than the remaining lifespans of many of the artists CLASSICS is designed to compensate. So, there’s a reasonable and moral argument to be made that effecting a narrow change now to support these artists in the current market is worthwhile. In this regard, it doesn’t seem at all reasonable for PK to label CLASSICS “bad law” (because it doesn’t harm anyone) simply because it happens to be a narrow law.

Does CLASSICS Create Uncertainty for Libraries & Archives?

Public Knowledge states …

“Libraries, archives, and researchers are the ones hit hardest by this situation. Initiatives like the Internet Archive’s Great 78 Project, or the Boston Public Library’s sound recording collections, operate under a legal sword of Damocles; they can keep going only at the mercy of common sense and a benevolent (or apathetic) recording industry.”

This statement is about the status quo and not about the CLASSICS Act. So, even to the extent the declaration is true—and that’s a big discussion—CLASSICS neither ameliorates nor aggravates any legal ambiguity for these institutions. Organizations like Public Knowledge and the EFF do this quite often: they attack a new proposal, which might entrench the status quo, by making it sound like a dramatic change backed by the nefarious “industry” in question. (See EFF on copyright in the TPP.)

One could predict that CLASSICS forecloses the possibility of full federalization of pre-72 sound recordings; but one could just as easily argue the opposite—that it may serve as a prelude to full federalization. In either case, the majority of commercially-viable sound recordings targeted for protection by this bill are—almost by definition—outside the sphere of interest where libraries and archives serve the public. Also, libraries and archives are afforded certain exceptions under copyright that are not available to for-profit entities. Both fair use and the carve-outs for libraries under Section 108 are explicitly stated in the CLASSICS Act.

Why Doesn’t CLASSICS Address Termination Rights?

Finally, Public Knowledge rallies general animosity for the recording industry in order to color its criticism that the CLASSICS Act is silent on the issue of termination rights. In simple terms, these are the conditions by which an author/artist terminates the transfer of copyrights to another party like a label or publisher. PK states the following:

“The sad reality is that the RIAA has exponentially more leverage with Congress than artists do, allowing them to dictate the terms of engagement. Legacy musicians thus face an impossible choice: abandon their push for termination rights in exchange for finally receiving the revenue they’re owed; or advocate for good policy at the expense of the potentially life-saving income.”

PK uses the subject of termination rights to emphasize the notoriously abusive contracts employed by record labels. But the fact is that sorting out the termination rights relative to all the pre-1972 state contracts would be just one component of the aforementioned slog to full federalization of these recordings. Public Knowledge makes this sound simpler than it is by alluding to copyrights reverting to the artist after 35 years, but this actually refers to the current statute, which does not govern these sound recordings. For now, the CLASSICS Act divides the royalties between the recording artist(s) and the sound recording owner, no matter what contracts are in place. So, PK’s implication that the bill is only for labels and not for artists is misleading at best.

Underlying all of that, of course, is the fact that Public Knowledge is exclusively hostile to copyright and has a history of making up all kinds of crazy nonsense rather than, say, providing knowledge to the public. In fact, I was struck by their reference to the wisdom of the Copyright Office on federalization of pre-72 sound recordings since is was Public Knowledge who had orchestrated a hatchet job attacking the credibility of the entire USCO and Register Pallante in the Fall of 2016. Ironically, that whole attack was predicated on accusations of “cultural capture,” which is funny because I wonder what psychological condition explains PK’s assault on this particular bit of legislation.

What does Public Knowledge have against the CLASSICS of music?

On April 25, a pretty extraordinary thing happened. Especially in a time of staggering political dysfunction, it was pretty impressive to see the House of Representatives pass an omnibus bill overhauling copyright law for music in the digital market with a vote of 415-0. Now headed to the Senate, the bill, known generally as the Music Modernization Act (MMA), combines three major pieces of legislation that have been in development for several years—the MMA, the CLASSICS Act, and the AMP Act.

In very simple terms, the legislation achieves the following results: 1) better and more accurate payments by digital service providers (e.g. Spotify) to songwriters (MMA); 2) federal protection for certain digital public performances of pre-1972 sound recordings (CLASSICS); and 3) compensation for engineers, mixers, or producers where they contribute to co-authorship of sound recordings (AMP). The entire package represents unprecedented examples of compromise between the digital service providers (DSPs) and the music industry; and in simple terms again, what the DSPs get out of the deal is an easier licensing regime and a new blanket liability protection that will put an end to the types of class-action lawsuits that Spotify faced for streaming unlicensed songs.

As the entire bill moves to the Senate, certain critics like Public Knowledge are now targeting the CLASSICS Act as “bad law,” recommending the Senate “consider” it separately from the rest of the omnibus bill passed by the House. Of course, if PK thinks CLASSICS is “bad law,” then I assume we can read “consider” to mean “kill,” which is certainly the assumption made by David Lowery in this post on The Trichordist. “Now it appears that through the use of proxies and two-faced lobbying DiMA [Digital Media Association] is trying to abrogate the entire compromise by stripping out the Pre-1972 and producer/mixer protections,” Lowery writes.

For an organization that claims to be a public advocate, Public Knowledge demonstrates remarkable consistency in advocating copyright policy most favorable to the business interests of internet service providers; and their objection to the CLASSICS Act is just the latest example. I’ll address a few specifics in a subsequent post, but the bottom line for the average consumer is this: having the digital service companies pay license fees to stream pre-1972 recordings will not in any way negatively affect the quality of our music-streaming experiences. I mean you don’t walk into a coffee bar with its comfy couches, free WiFi, and friendly service and say, “Wait a minute! They sell fair-trade coffee in this place?? I’m outta here.”

What the CLASSICS Act Addresses

Sound recordings were added as a category of works protected by federal copyright law on February 15, 1972. But for reasons nobody is quite sure about, recordings fixed prior to that date were exempted from the federal statute and left to the protection of common law copyright in each state. At the time, all copyrights and works were still subject to the 1909 Act until the new federal law, the 1976 Act, went into effect for works created after January 1, 1978. And although sound recordings were a protected category, the radio broadcasters successfully lobbied against licensing for “public performance” of sound recordings on the then not-unreasonable claim that radio broadcast played a substantial role in record sales.

Later, with advances in digital and subscription services, a 1995 amendment added copyright protection (§106(6) of the statute) for “public performance of sound recordings by means of digital transmission.” But this still did not apply to recordings made before February 15, 1972. Fast forward to the current market, when digital streaming now owns a huge portion of the “radio” market and obliterates the need for record sales for a growing number of consumers, and this leaves performance licensing as almost the only source of revenue for sound recordings. Meanwhile, more than a few great sound recordings were made before 1972 that consumers are going to stream millions of times. So, the CLASSICS Act creates a means by which the performing artists who made those recordings can share in the new market.

Why Does Public Knowledge Care?

If streaming services have to pay royalties for these sound recordings, that’s as it should be; and if it has no bearing on consumers (in fact, it is more likely to improve our listening experience), why is Public Knowledge even piping up on the issue? It’s tempting to say that organizations like this just plain hate copyright and will, therefore, assail any proposal that strengthens the position of any rights holder. Or one might conclude, as Lowery does, that PK is acting as an industry-funded proxy to save the streaming services money by trying to kill this bill in the Senate.

Still, PK and other critics have presented a few law & policy arguments, and I’ll look at those in my next post on this topic. As a prelude, let me say for now that pre-72 recordings is an oddball in copyright law, allowing critics to cite a lot of draconian-sounding theory, even fogging the discussion by alluding to Edison’s 1877 sound recordings as remaining in a theoretical state of perpetual copyright. In practical terms, the CLASSICS Act is simply about compensating the artists (most likely active from the 1950s-1970s) who made the sound recordings you and I listen to all the time. And in legal terms, the bill actually appears to solve some of the problems Public Knowledge cites in its objections. But that’s for the next post.

Blurred Lines in More Ways Than One – Part III

As mentioned in Part II, I didn’t expect to write several posts about this litigation, but it turns out that “Blurred Lines” (Williams v. Gaye) raises several copyright issues—doctrinal, cultural, and historical—worthy of consideration and not easily condensed into a single article. In the first post, I alluded to an editorial written in 2015 by scholars Lateef Mtima and Sean O’Connor supporting the outcome in Williams from a historical perspective, asserting that traditional means of registering works and identifying infringement disfavored artists of color.

Citing this OpEd drew some criticism from a few readers, particularly musicians, who noted that people of color comprised two-thirds of the authors of “Blurred Lines” and that the Mtima/O’Connor opinion seems to be a matter of looking for a problem that doesn’t exist, comparable to often-overwrought and ahistorical complaints about “cultural appropriation.” But discussions about cultural cross-pollination in art are largely separate from the issues these scholars are raising about copyright law. Still, for context, we must  acknowledge that a vast amount of American popular music in the 20th century—jazz, blues, rock, funk, soul, R&B, rap, etc.—is more deeply rooted in African-American traditions than Euro-American traditions.

The amicus brief Mtima and O’Connor wrote with colleague Steven D. Jamar was submitted to the Ninth Circuit in 2016 on behalf of the Institute for Intellectual Property and Social Justice. It argues for affirming the jury’s verdict in Williams, concurring in part and dissenting in part with regard to the evidence admitted at trial. Although the jury arrived at the opinion favored by the brief’s authors, the reasons why Gaye’s sound recording was not admitted as evidence points to the fact that “Got To Give It Up” is among thousands of musical works that happen to fall within an abstruse window in copyright history that, the authors argue, especially disfavored artists of color. For concision I’ll refer to the amicus brief as the IPSJ Brief, which states …

“For reasons not fully known and not linked to any further change in the statute, at some point (in the 1930s we believe) the Copyright Office began requiring written notation deposits, before again allowing deposits of phonorecordings for musical compositions beginning in the 1980s, and again not linked to statutory changes.”

Like many artists who did not receive formal training, least of all in European staff notation, Marvin Gaye composed by getting the music that was inside him to come out through the instruments and the players and then record the finished sounds in the studio. Many composers—regardless of race or culture—work this way today, of course, and their sound recordings are both valid for copyright registration and as evidence in a prospective infringement litigation.

But Gaye’s 1977 hit was subject to the 1909 Copyright Act, and it predated the apparently inscrutable shift in USCO policy that finally allowed sound recordings as registration deposit copies in the 1980s. Although the IPSJ Brief cannot fully explain a rationale for the fifty-year period when only written-notation scores were accepted for deposit (e.g. the statute did not mandate this), the brief’s authors do allude to lingering, judicial ambiguity stemming from White-Smith v. Apollo, which held in 1908 that piano rolls were not copies of compositions because they were not readable by humans.

Had that ruling gone the other way, it might have set a precedent for accepting sound recordings as deposit copies much earlier in the 20th century. And although SCOTUS held that sound recordings are, constitutionally, “writings” in Goldstein v. California in 1973, there is apparently no clear explanation as to why the Copyright Office did not amend its deposit requirements for musical works for nearly another decade.

As a matter of social justice, and in the service of demanding that copyright must empower the broadest diversity of authors, the IPSJ Brief asserts that the seemingly arbitrary emphasis on written notation between the 1930s and the 1980s was especially harmful to artists of color, who composed almost exclusively in aural traditions. Certainly, it is hard to miss the fact that this period encompasses the span of time when certain styles of black music sneaked into the mainstream via white artists beginning in the 1950s and slowly gained wider acceptance as black music by black artists through the 1960s and 70s.

Partly because written-notation scores were required as registration deposit copies, composers like Gaye relied on other parties to transpose their sound recordings into musical notation. This practice led to two recurring problems, according to the IPSJ Brief: 1) the scores did not always adequately represent the compositions; and 2) unscrupulous managers, label owners, et al sometimes exploited the opportunity to falsely assert co-authorship of the compositions. The brief states …

“The Copyright Office should have accepted phonorecordings as registration deposits throughout the entire period in which the 1909 Act was in effect. Neither Gaye nor other composers should today be penalized by restricting evidence of their compositions to a stripped-down lead sheet deposit created to comply with an extra-statutory administrative practice, especially where that deposit does not match the work composed by the author in the studio.”

In the “Blurred Lines” case, the jury was not allowed to compare the two sound recordings but was allowed to consider the “lead sheets” and expert testimony by musicologists. As the IPSJ Brief explains, lead sheets are somewhat rudimentary versions of musical scores that are generally of use only to professional musicians, who can interpolate what’s not on the page and play the song (by ear or from memory) the way the composer meant for it to be played. To get an idea of the difference, I’ll borrow a reference cited in the Brief and direct you to the musicnotes.com page for “Got To Give It Up,” where you can play a computer’s interpretation of the score and decide how much those lifeless and literal beeps and bloops sound like the Marvin Gaye song you know.

The IPSJ Brief asserts that only the sound recording correctly represents the originality (ergo the protectable aspects) in Marvin Gaye’s composition—and that the same is true for thousands of compositions made by artists, who worked in aural traditions rather than standard notation during the roughly half-century at issue. Thus, the brief’s authors support the evidence presented by the Gayes’ musicologists, asserting that these experts correctly identified the protectable elements in the work, giving the jury fact-based reason to find infringement. Nevertheless, the authors remain critical of the fact that the sound recording of “Got To Give It Up” was not admitted into evidence.

The IPSJ Brief also argues that the outcome in Williams does not, as many fear, “copyright musical style.” To the contrary, the authors assert that the lines separating “style” (idea) from “originality” (expression) have instead been too often drawn incorrectly due to bias tilting toward certain musical traditions. In practical terms, this means that a composer like Gaye can arrange a dozen unprotectable ideas in a manner that is uniquely expressive, and this can only be analyzed in context to his studio-based process rather than on paper alone.

Whether or not one agrees with this analysis—or with the jury in Williams—Mtima, O’Connor, and Jamar offer an intriguing discussion about copyright history and practice during one of the most prolific, experimental, and culture-shattering periods in Western music. As much as it would be absurd to overlook American musicians of color between the 1930s and 1980s, it seems likewise inappropriate to ignore this aspect of the “Blurred Lines” case rather than to view it in tandem with the subjects of infringement doctrine, case law, and circuit court splits that this litigation has inspired other scholars to address.