Tag: CLASSICS Act

The CLASSICS Act is Not a Reversal of Copyright Doctrine

As the world mourns the passing of Aretha Franklin, we need no further discussion about the value of recording artists. The anthem of a generation, Franklin’s first hit, “Respect” was not written by her but by Otis Redding, who first recorded the song in 1965. But in 1967, Aretha made that song what it is—“owned it” as we say today—along with the work of producer Jerry Wexler, engineer Tom Dowd, and the studio musicians at Muscle Shoals Sound Studios, including King Curtis, who gave us that instantly-recognizable saxophone solo, and who was murdered in 1971.

We also need no further evidence that the somewhat arbitrary line in copyright law, which places pre-1972 sound recordings in a class separate from those made after February of that year, has little to do with the timelessness of many recorded songs. Who knows how many times Aretha’s records will be played over the coming decades via Sirius XM or Pandora or other non-interactive digital services, but is it truly unreasonable that these corporations should pay a license fee for that privilege? Is it wrong, for instance, that the heirs of engineer Tom Dowd, who passed away in 2002, receive some fraction of a royalty for his contributions to the sounds of Franklin, Coltrane, Mingus, Clapton, Charles, Rod Stewart, et al?

Some critics of the CLASSICS Act seem to think it is wrong on principle—that CLASSICS creates a royalty “windfall” that these authors never expected at the time in which they made these sound recordings. This is how copyright critic and scholar Annemarie Bridy described her antagonism toward CLASSICS via Twitter a couple weeks ago, and it is the reason she calls the bill a reversal of copyright doctrine. “My only dog in this fight is not wanting to see © created retroactively for existing works whose very existence is proof that their creators needed no copyright incentive for their creation. I see no doctrinal justification for it,” Bridy tweeted.

And I wouldn’t pick on one critic alone for her tweets except for the fact that I’m sure Bridy represents the views of many who feel likewise, despite the fact that her position—although posing as a statement of raw principle—is doctrinally unsound, historically inaccurate, just plain mean-spirited, and kinda dangerous as a rationale.

By dangerous, I mean to say that even if CLASSICS does represent a shift in legal doctrine (and I hold that it does not), why should this alone be an argument against its adoption? Doctrinal change is the reason Bridy has advanced degrees and a job at a university instead of being restricted to “women’s work.” Doctrinal change is the reason Aretha’s “Respect” became an anthem that added the essential ingredient of boogie to the civil rights movement. What exactly is wrong with doctrinal change? It’s the only way this country has ever managed to live up to the grand promises in its founding documents.

With regard to copyright law, Bridy’s premise is that because copyright’s purpose is incentive, it is therefore superfluous to establish a new copyright protection for works for which the incentive obviously existed at the time of their authorship. In my view, this is the mean-spirited part of her argument—and it is a view shared by others—which espouses a too-mercenary approach to copyright’s purpose. It is an extension of the sentiment that copyright is a “devil’s bargain” which society makes with artists in order to get them to produce what we want out of them. (And it is a sentiment I find especially unpalatable in context to artists of color.)

But in addition to this being a rather craven way to relate to any artist, it is also historically oversimple—particularly with regard to the public performance right and pre-72 sound recordings, which are technically protected by common-law copyright due to a rather muddled definition of the word “published” in the evolution of statutory copyright. (See new post by copyright historian Zvi Rosen for more details).

Suffice to say that Bridy poses an argument which, to the casual observer looks reasonable, but which the copyright expert recognizes as glossing over the complicated legal status of pre-72 sound recordings. Nobody I know disagrees that the 1972 threshold created a copyright mess, but Bridy’s opinion does little to untie that know when she conflates constitutional copyright (i.e. its foundational purpose) with statutory and common-law copyright in the service of blasting a very narrow, and very simple, amendment to the law.

A Doctrinal Shift?

As a broad rebuttal to Bridy’s premise that CLASSICS represents a dramatic shift in principles, it is neither settled legal doctrine, nor settled history, that copyright’s sole purpose is incentive. While the debate continues as to whether intellectual property rights are indeed grounded in natural rights, there is at least enough scholarship on this subject to reject Bridy’s over-reliance on the assumption that once incentive has been achieved, copyright has fulfilled its only value. (Moreover, even the incentive calculus entails a bundle of rights, enforceable over many years, and includes more than pecuniary transactions.)

But we don’t even need to get into the more theoretical aspects of intellectual property law, or debate the extent to which Lockean principles of property and labor informed the Constitution and the earliest American statutes. Because even without all that, CLASSICS is just a tiny amendment to the Copyright Act that accomplishes more or less what every amendment to copyright law has always done: respond to changes in technology.

Nearly every update to copyright law represents an effort to identify and protect the creative expressions of authors in the context of new technologies, whether these have been new means of producing and distributing works or new means of copying and potentially infringing works. And it is also worth noting that many of the limitations to copyright’s protections have also been written in response to new technologies.

So, when Bridy declares that the recording artists working before 1972 had no expectation of this royalty stream, she’s overstating what CLASSICS does by understating the obvious—that no artist working well into the 1990s likely imagined the expansion of non-interactive, digital streaming “radio” services. Yet, somehow the artists whose recordings were made after 1972—and are, therefore, receiving royalties from these services—are not the beneficiaries of a copyright “windfall” in Bridy’s view? She’s conflating a technological change in the market with an aberration in copyright history to make a case that this amounts to a doctrinal reversal.

As discussed in this post, the sound-recording right itself has almost never played much of a role between artists and their consumers. Artists like Aretha Franklin made sound recordings, consumers bought physical copies, and the radio broadcasters successfully argued against paying royalties on the (then not unreasonable) grounds that radio play sold records.

Today, digital streaming has largely replaced sales of recordings, and relatively new players like Pandora provide a radio-like experience, including thousands of pre-72 sound recordings because, like Aretha’s classics, they still kick ass. But they also earn revenue for these services, which can no longer claim that their play promotes record sales. And all CLASSICS does is insist that a portion of the revenue earned from streaming these songs goes back to the artists, supporting artists, and supporting creators who made them. That is anything but a reversal of copyright doctrine. It’s a reaffirmation of a founding principle of copyright: R-E-S-P-E-C-T.

Is the ACCESS Bill Mean-Spirited or Ill-Advised?

Last week, Senator Ron Wyden (D-OR) suddenly—and I do mean suddenly—introduced a bill in the Senate that many of the usual copyright-haters are applauding as an “alternative” to the CLASSICS Act.  It’s hard to decide whether Wyden and whatever narrow constituency he’s serving are using this bill as a political stunt aimed at killing CLASSICS, or if they’re really arrogant enough to believe this bill would not become the legal briar patch the authors of CLASSICS worked hard to avoid for the time being.  In fact, just dropping this bill in the Senate’s lap at the eleventh hour has the potential to upset the entire, multi-stakeholder-negotiated Music Modernization Act omnibus package—the one in which digital platforms like Spotify have a stake—and which passed the full House with a vote of 415-0.

Despite all that, Wyden unilaterally chose to disregard the many years invested by his colleagues in the House Judiciary Committee, the volumes of testimony and negotiations, and the 2011 recommendations of the Copyright Office, to introduce a counter-proposal called the ACCESS to Recordings Act.  The acronym stands for the Accessibility for Curators, Creators, Educators, Scholars, and Society.  Seriously?  I know legislation can get a bit agitprop in its nomenclature, but ACCESS?  The curators, creators, educators, scholars, and society have access!  We’re awash in access!  What we need is fairness in the commercial markets for the artists whose works we access all the time.

Anyway, the bills …

The function of the CLASSICS Act is fairly simple, and for good reason—because the current copyright status of these pre-1972 sound recordings, protected under myriad state laws, is complicated.  For instance in one state, the owner of a physical master recording may be considered the rights holder of the underlying work but not so in another state.  The list of potential variables is long, but suffice to say CLASSICS doesn’t address any of this common law complexity because, as noted in an earlier post, it would be an undertaking lasting many years, possibly achieving nothing.  By contrast, ratification of CLASSICS, as part of the MMA, means these legacy artists get paid immediately, and the relevant digital streaming services achieve legal certainty in a historically gray area that has incubated numerous lawsuits.

CLASSICS leaves the common law protections for these sound recordings in place, along with the existing copyright expiration date for all of these works of February 15, 2067.  The only thing CLASSICS does is to create a new federal protection exclusively for non-interactive (e.g. SiriusXM or Pandora) digital transmissions where these recordings are played all the time but without compensating the artists.  As Robert Levine, reporting for Billboard, writes, “…a few big companies will pay artists and labels a bit more money. That’s it.”

ACCESS is Sham Full Federalization

It is important to keep in mind that the detractors currently attacking CLASSICS cannot point to single constituency whose interests are in any way diminished from the status quo.  Yet,  rather than endorse a simple solution to compensate these relatively contemporary artists through one narrow licensing regime, the anti-copyright forces, including library organizations, have chosen to crash the legislative process with this bill.  ACCESS is a ham-handed version of what these parties really want—full-federalization of pre-72 recordings—but both the timing and substance of the proposal blithely glosses over the complexity of this more ambitious agenda.

For instance, ACCESS presumes to erase all common law copyrights and migrate these sound recordings into their own niche of federal protection with the stroke of a pen.  But as Levine observes in that same Billboard article, this could be interpreted as an unconstitutional “taking,” an obstacle which alone suggests the bill is not designed to pass so much as it is to stymie the MMA until it perhaps expires with the mid-terms.  Additionally, this over-simple proposal to federalize this collection of sound recordings could trigger a festival of litigation among artists and labels over issues pertaining to who owns what, all in reaction to such a radical and ill-conceived change in legal status.

The ACCESS bill proposes different expiration terms than CLASSICS for these works, namely a flat 95 years from publication date, even though the meaning of “publication” under the presiding 1909 Act is a bit of a challenge in itself.  While this proposal would mean more of these works falling into the public domain sooner, this would largely be a symbolic “victory” for the copyright haters providing little value to the general public and varying degrees of unfair treatment to the artists.  (And that’s if the act didn’t cause any other chaos.)

For instance, Don McClean’s “American Pie” would expire one year earlier under ACCESS than under CLASSICS; Smokey Robinson’s “Shop Around” would expire thirteen years earlier; and Artie Shaw’s “Stardust” would expire thirty-one years earlier.  And while all that may make some anti-copyright folks feel good about themselves, it is demonstrably irrelevant to us consumers because we already enjoy anytime-anywhere access to these popular recordings, and copyright term expiration cannot improve on 24/7 availability.  At the same time, it’s worth noting that for many of these recordings which are not commercialized, all the major labels have granted free licenses to the Library of Congress’s National Jukebox to provide free, public access to these works.

Finally, the ACCESS bill contains what can I best describe as a three-year grace period during which a major, corporate user may get away with all the infringement possible of these sound recordings.  The logic is labyrinthine, but it says that a rights holder must notify an alleged infringer no later than six months prior to taking action in a claim; and this limitation lasts for three years after passage of the act.  This provision can only be explained as a favor to the commercial digital broadcasters because, of course, they need Congress to protect them from the musicians.

What About Libraries?

The libraries have applauded the ACCESS bill, though it’s hard to fathom exactly why, other an appetite for futile defeat and antagonism.  While it cannot be denied that full federalization of these sound recordings would benefit libraries and archives, ACCESS will almost surely not achieve this goal.  Consequently, these organizations are either being naïve or callous in their support for Wyden’s tossing a legislative grenade at this late stage of the process.

The specific needs of libraries are entirely separate from the purpose of CLASSICS.  Yet, rather than engage in the normal legislative work needed to obtain the statutory exceptions libraries would like to see, they choose to back a dead horse and, once again, needlessly position themselves in opposition to a group of artists.  Then, as if to exacerbate the decision, they make inaccurate public statements that stretch way beyond their sphere of interest.  For instance, the Library Copyright Alliance published a letter signed by its member library associations, which states:

“While the ACCESS to Recordings Act provides more protections to artists than CLASSICS, it also provides more protections to libraries, archives, and museums.  The federal copyright standard provided by the ACCESS to Recordings Act includes important exceptions that permit digital preservation of pre-1972 sound recordings. These uniform exceptions would enable cultural heritage institutions to engage in critical preservation activities without concern about violating a multiplicity of different state law regimes.”

That first part of about providing “more protections” to artists is not exactly true from the artists’ perspective.  The libraries make this claim because ACCESS would transport all  the exclusive rights—reproduction, performance, derivative works—into federal protection, but the nation’s librarians are in no way qualified to say whether this is better or worse than the state laws currently protecting some of these works, thus implicating the aforementioned “takings” problem in the proposed bill.

As for the libraries, it is true that the common law status of many pre-72 sound recordings can be an obstacle to certain preservation activities, but none of that will be solved by endorsing a makeshift proposal that is almost certainly destined to fail.  Meanwhile, the CLASSICS Act explicitly extends library-focused exceptions that would enable these institutions to make recordings available that are otherwise not found in the commercial market.  (Isn’t that what the public really needs a library or archive to do anyway?)  But rather than win this small provision in CLASSICS today and collaborate on the more complex issues tomorrow, the library groups are going to endorse a fatally flawed bill and persist in their adversarial relationship with artists and authors for no imaginable reason.

What’s Really Behind This?

The ACCESS proposal cannot help but implicate the Gordian issues that legal experts, artists, and legislators sought to at least postpone with the narrowly-tailored CLASSICS Act.  It seems reasonable, therefore, to assume that Senator Wyden and his bill’s supporters know this to be the case and that the introduction of ACCESS is designed solely to run out the clock on the Music Modernization Act. Not only would this trash years of work by a lot of people, but there is not a single provision in the omnibus package which would negatively affect the parties suddenly endorsing ACCESS.  Hence, one can only conclude that this belated proposal is either mean-spirited or ill-advised.  Though it is arguably a bit of both.

Jeers of a Clone: Doctorow Lies About the CLASSICS Act

If Cory Doctorow writes an article about copyright, “it’s only there trying to fool the public.”

For instance, his recent missive about the CLASSICS Act in the venerable Boing Boing (which I assume is the sound inside its editors’ heads) is a fabrication rich in offensive overtones. Not only does he repeat the fiction that this bill extends copyright terms for pre-1972 sound recordings, but he actually invents a legislative process out of thin air.

As explained in more detail in this post, the CLASSICS Act is relatively narrow legislation that would allow musical artists who recorded songs before February 15, 1972—many of them are still living—to receive royalties in the current market for certain types of digital broadcast performances.  Quite simply, an artist with a song recorded after that date is eligible for royalties (e.g. from satellite radio), but the same artist with a song recorded before that date is ineligible for royalties for the same use.  In testimony supporting CLASSICS before the Senate Judiciary Committee, singer/songwriter Smokey Robinson presented the following:

“…some digital radio company lawyers found a loophole.  Those corporate lawyers asked, ‘What if we don’t pay for classic pre-72 recordings under the new federal license because they are covered under state law, and then what if we argued state laws are too old to cover digital radio?’  Then, they figured, they could profit off some of the most valuable recordings of all time, paying legacy artists nothing at all.”

Because a good story needs a good villain, Doctorow enigmatically cast Senator Orrin Hatch in this role and reported that the senator is personally responsible for combining CLASSICS with the otherwise-popular mechanical licensing bill known as the Music Modernization Act. This is imaginative to the point of incoherence. CLASSICS was in fact merged with the MMA and the AMP Act under the aegis of the House Judiciary Committee to form an omnibus music copyright bill, which passed the full House in April with an extraordinary tally of 415 to 0. It then moved to the Senate where it acquired 17 bi-partisan co-sponsors.  If for no other reason than the fact that Hatch is a member of the wrong chamber, he had nothing to do with “adding” CLASSICS to the MMA.

Perhaps Doctorow needs to review the whole House-to-Senate legislative process, but nearly all copyright legislation begins in the House Judiciary Committee.  Meanwhile, Cory’s style of blatant propagandism is especially obnoxious coming from pundits who imagine themselves champions of democratic principles in the digital age.  By “Hatching” this bogus narrative, he obfuscates the real process whereby a bill like CLASSICS emerged after several years worth of hearings held in multiple cities, and after gathering testimony from a variety of stakeholders. Even a rudimentary knowledge of Congress belies the absurdity of claiming that Senator Hatch personally—not to mention belatedly—has been pulling strings on Capitol Hill for his pals Smokey Robinson and Dionne Warwick.

In fact, to emphasize Doctorow’s hypocrisy, readers might notice that the URL for his “article” doesn’t even mention the legislation but is simply titled “orrin-fucking-hatch.” Why? Because Boing Boing isn’t a source of information.  It’s a click-bait site using SEO as a fly-catcher to grab readers already opposed to Senator Hatch on policy unrelated to music copyright.  I don’t have much in common with the senator’s views myself, but Doctorow arrogantly piling garbage on this bonfire of bullshit should be disabused of any notion that he’s doing the Republic any favors.

“The records of the 50s and 60s aren’t called ‘classics’ because of their age.  They’re called classics because of their greatness.  They still resonate today.  They add value to our lives and bring people together.  They define America.”  — Smokey Robinson —

In Doctorow’s version of the CLASSICS Act tale, not only is a senator authoring bills in the House, but he is allegedly also extending copyright to 144 years for all pre-1972 sound recordings.  (This is like saying Cory Doctorow is entirely responsible for that alien attack in Poughkeepsie.)  As addressed in my earlier post—and in considerable detail by Terry Hart on Copyhype—CLASSICS actually leaves in place the same 2067 expiration date that exists right now for this body of sound recordings.

Nothing in the public domain is being re-protected, and no new ambiguity is being introduced that will adversely affect librarians and archivists.  To the contrary, CLASSICS would serve to clarify important protections for these institutions that only exist in the federal statute but which do not apply under state law.

Beyond the key facts being misrepresented, there is another dimension to the recent assault on this bill that is hard to overlook.  Many of the artists who stand to benefit from CLASSICS happen to be people of color because the period between the 50s and the 70s is the same era when artists of color gained wider mainstream acceptance in the market. (Hell, if this were just the Ray Charles Act alone, it would be worth considering.)

When I think about the indispensable music created by artists like Smokey Robinson, The Supremes, Otis Redding, Marvin Gaye et al, and then contrast all those beautiful sounds against the whinging noise of Doctorow and his pals at EFF and Public Knowledge, the duplicity of these privileged, ivory-tower “activists” takes on a whole new shade of offensiveness.  It is truly fascinating to see Doctorow and his friends insist that the quirky history of sound recording copyrights must continue to disenfranchise this particular group of artists from a share in the revenue generated by certain corporations broadcasting their music.

That’s some bizarre logic coming from the same people who love to repeat the refrain that music copyright is irrelevant because the labels “always screw artists anyway.”  Not only is this talking point an oversimplified cliché, but in this context, it’s tantamount to calling the individual artists who have endorsed CLASSICS a bunch of liars about their own careers. Moreover, the critics who portray this bill as just another “gift to labels” fail to mention that the royalty split under the §114 statutory license is 50% to the recording owner, 45% to featured artists, and 2.5% each to non-featured vocalists and non-featured musicians.

I don’t like to insert race where it doesn’t belong, but in this case, the optics are little too blatant to ignore. There are plenty of opportunities for opinion, debate, and theory on the subject of copyright law, but here’s the meat-and-potatoes of the fairly uncomplicated CLASSICS Act as Robinson put it:

“Now, I fully recognize I have been blessed and I’ve been lucky. But for many legacy musicians and their families, this issue is far more urgent. I’m 78 years young, but many artists I came up with are unable to tour or make appearances or record new material to earn a living. They should be able to rely on income from the recordings used by digital radio companies to attract listeners and earn profits. For so many, especially at this point in their careers, this is how they make ends meet. It’s how they pay their mortgage and their medical bills. It’s how they feed their families.”

Are Doctorow and his entitled entourage really comfortable saying Robinson is just wrong? And then further twist this improbable narrative by introducing Orrin Hatch as the legislative knife in Smokey’s hand? I think Cory and Friends should find something else to boing-boing about, and anyone with a basic sense of fairness should “second that emotion.”