Now BMI takes on the US Radio industry

Last month, Irving Azoff’s US collection society, Global Music Rights (GMR), launched a legal attack on the Radio Music License Committee (RMLC), which represents over 10,000 commercial radio stations in the United States. The suit followed an action by the RMLC that moved that GMR be enjoined from licensing its catalogue of songs for more than a rate that represented the pro-rata share of its catalogue against those of the other PROs (primarily BMI and ASCAP, and SESAC) while its broader antitrust action is aimed at establishing an appropriate mechanism for determining those rates in the future - and forcing the rights agency to submit to independent arbitration to set the rates broadcasters must pay to play the songs it represents. Azoff formed GMR in 2013 to compete with ASCAP and BMI, which together control approximately 95% of music copyrights. The other independent and privately owned PRO in the USA, SESAC, recently entered into a settlement of with RMLC, following an antitrust action similar to the one filed against GMR.

Against a background of many songwriters and music publishers believing that commercial radio stations in the USA and elsewhere are paying far too little to use their work, GMR's lawsuit accused the RMLC of operating a ‘cartel’ which deliberately suppressed royalty payments to songwriters for music used across its network and targeted over 10,000 radio stations with an action that would have forced the stations to acquire a license in order to play music associated with any GMR songwriter artist (GMR have published a roster that includes Jay Z, The Eagles, Pharrell Williams, Adele, Daft Punk and hundreds more). One blip was that in response, heavy metal band Anthrax penned an open letter to Azoff for mistakenly including the band in the GMR "fair pay for fair play" lawsuit against the radio stations. The band suggested that whilst they have performed one song which is a composition by members of Metallica and Megadeth (the latter being represented by GMR) they are not represented by GMR and the error could discourage radio stations from playing Anthrax songs. 

On December 24th, GMR offered RMLC stations a temporary license to play songs by its clients. In a statement GWR said

"Today, GMR has offered a license to all radio stations represented by the RMLC allowing the stations to play GMR's repertoire in exchange for specified license fees. This license extends ‪through September 30th, 2017 and gives everyone additional time to negotiate long-term licenses with GMR. GMR offered this license to the RMLC last month, but the RMLC refused it and, instead, chose to sue and seek an injunction. With today's agreement, the RMLC has withdrawn its request for an injunction and radio stations across the country will have the opportunity to offer their listeners GMR's quality music."

Elsewhere, fellow PRO ASCAP has since re-signed a deal with RMLC for the next five years, covering its repertoire at a mutually agreed rate.

But the other major (and regulated) PRO BMI hasn't been so amenable.  The society has now filed an action in Federal Rate Court to set interim fees for radio stations represented by the RMLC – while BMI and the RMLC negotiate the terms of a new five-year deal beginning in 2017.

BMI said that the RMLC had "proposed an interim rate well below BMI‘s previous deal, the effect of which would have a significant impact on the royalties BMI pays to its songwriters, composers and music publishers" saying "The RMLC has justified its proposed rate based upon incomplete and incorrect information regarding BMI‘s radio performances. BMI disagrees fundamentally with the RMLC’s proposal and, consistent with past practices, is asking the Court to maintain its most recent rate while new terms are negotiated."

Mike Steinberg, Senior Vice President of Licensing for BMI, told reporters: “We attempted to negotiate in good faith with the RMLC for many months, and just before the end of the year, the RMLC presented an interim rate that significantly undervalues the work of BMI’s songwriters. Given the unmatched caliber of BMI‘s repertoire, our superior market share on radio, and the ever-increasing value that BMI music brings to the radio industry across all its platforms, we believe the RMLC’s proposal falls well short of what is in the best interests of our affiliates."

In an extreme version of a similar situation,  albeit here with a public service broadcaster, Bulgarian press reports said that as of 00.01 on January 1, 2017, Musicautor, Bulgaria’s non-profit society of composers, lyricists and music publishers, took action that has forced the country's national radio to play only music produced before 1945:  indeed, instead of hearing the official Bulgarian anthem at midnight, as they do every year, listeners to Bulgarian National Radio (BNR) heard an alternative version performed by BNR’s own choir and symphonic orchestra - and now have a diet of folk, classical and some jazz music. Musicautor, which hold the copyright to over 14,000,000 songs from Bulgarian and worldwide artists, suspended its contract with BNR and BNR is prevented from playing much contemporary Bulgarian and foreign music until the fee issue is resolved. The PRO has asked for a threefold increase in its payments, saying this would bring payments into line with those made by other European public radio broadcasters to use music.

http://www.balkaninsight.com/en/article/bulgarians-listen-to-classics-thanks-to-copyright-war-01-04-2017

http://www.musicbusinessworldwide.com/bmi-files-legal-action-radio-music-license-committee-royalty-rates/

http://www.rollingstone.com/music/news/anthrax-pen-open-letter-to-irving-azoff-over-licensing-w456455

http://variety.com/2016/music/news/global-music-rights-radio-rmlc-cartel-lawsuit-1201936083/

http://www.prnewswire.com/news-releases/global-music-rights-announces-license-extension-deal-with-radio-music-license-committee-300383532.html

US radio industry accuses Global Music Rights of monopoly abuse http://www.musiclawupdates.com/?p=7048

UK student faces extradition on infringement charges

A UK student faces extradition to the USA after District Judge Quentin Purdy ruled that the extradition could go ahead at Westminster Magistrates Court. Richard O'Dwyer, a 23 year old studying at Sheffield Hallam University faces charges relating to his 'TV Shack' website that allegedly linked to infringing films and television programmes that could be found on other internet sites. No infringing material was held on the site although allegedly after it was closed down for the first time, O'Dwyer simply re-started it the next day and made substantial financial returns from selling advertising on the site. District Judge Purdy ruled that "there are said to be direct consequences of criminal activity by Richard O'Dwyer in the USA, albeit by him never leaving the North of England" adding "such a state of affairs does not demand a trial here if the competent UK authorities decline to act and does, in my judgment, permit one in the USA". O'Dwyer's lawyer, Ben Cooper, said the matter would be appealed to the High Court. In a completely separate action Christopher Tappie, a retired businessman, who faces extradition to the USA on charges of conspiring to sell batteries used in Iranian missiles, failed to halt his extradition before Lord Justice Hooper and Mr Justice Cranston and said he will now appeal to the Supreme Court. An independent review of the extradition treaty between the UK and USA by Sir Scott Baker concluded last year that the extradition arrangements were balanced and fair, but many criticise the legislation for favouring the USA and the case of Gary McKinnon, the alleged computer hacker, raised a number of concerns.

http://www.telegraph.co.uk/technology/news/9013961/Piracy-student-Richard-ODwyer-loses-extradition-case-over-TVShack-website.html

Terminal blues for the record labels?

There has been a lot of excitement in cyberworld as the US press wakes up to the rather interesting idea that an ever growing list of major recording artistes and songwriters are looking to reclaim their copyrights from record labels and music publishers.

The New York Times focussed on a number of 1978 hit albums such as Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” which of course have generated tens of millions of dollars in sales for record companies and music publishers alike. Why the story then? Well thanks to "a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels and music publishers out in the cold". And the list nas grown and currently includes Bryan Adams, Bob Dylans, Tom Waites, Kris Kristofferson, Kool & The Gang, Fleetwood Mac and now Victor Willis, frontman and songwriter with the Village People (he was the naval officer!) who is seeking to regain control of over thirty of the band’s hits including Y.M.C.A, from two music publishing companies who are contesting the move.

The background to this is the revision to US copyright laws in the mid-1970s, when musicians and songwriters, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark. But don't expect the music industry to just hand over the rights! The Recording Industry Association of America have issued a statement saying with General Counsel Stephen Marks saying "We believe the termination right doesn't apply to most sound recordings." The labels are preparing to argue that the albums they released were "works for hire," that musicians were effectively employees and the fruits of their labors always belonged to the companies saying We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?_r=1


http://www.nytimes.com/2011/08/17/arts/music/village-people-singer-claims-rights-to-ymca.html?_r=1 (A Village Person Tests The Copyright Law)

http://www.perthnow.com.au/business/media-marketing/music-legends-reclaiming-recordings/story-e6frg2rc-1226116806582

http://www.techdirt.com/articles/20110816/09574115549/dear-musicians-riaa-is-about-to-totally-screw-you-over-again.shtml

Out with the Acting, in with the Doing

The news is a few days old, but it hasn’t appeared here yet and it should.  This past week the United States got a new Register of Copyrights: Maria Pallente.

Maria has been serving as the Acting Register since the previous Register, Marybeth Peters, retired at the end of the last year.  As of the first of this month, Maria is now the full, official, not-just-acting-but-being, Register.

The US Register of Copyrights works under the Librarian of Congress and does a lot more than just registering things.  Her role does includes developing procedures within the Copyright office for registering works, researching registrations and other such things.  But her increasingly more important role is to provide input and analysis on copyright law and issues relating to copyright, both domestic and international.

Already Maria has testified before Congress about potential changes to the US copyright regime.  Her first day as Register, she appeared before the Subcommittee on Intellectual Property, Competition, and the Internet to discuss various types of online infringement.  She had testified about similar issues before the same subcommittee has Acting Register in March.

Marybeth Peters is often hailed for her many achievements as Register of Copyrights, and I’ve often heard her spoken of fondly by both sides of the great copyright debates.  Maria has some big shoes to fill, but it looks like she’s jumped right in and is ready for the challenge.  Welcome to Maria!

For a full description of the US Register of Copyrights duties: 17 U.S.C. §701

US IP Czar wants illegal streaming to be a felony

The White House's Intellectual Property Enforcement Coordinator, Victoria Espinel, has submitted 20 recommendations to Congress aimed at cracking down on copyright infringement on items ranging from drugs to music and military equipment – calling for more effective law enforcement and tougher penalties for people convicted of copyright infringement. In particular Espinel urged Congress to make illegally streaming copyrighted content online a felony saying that online piracy and counterfeiting are "significant concerns" for the White House causing "economic harm and threaten the health and safety of American consumers".

Espinel has recommended that Congress act to "clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances." Bob Pisano, president of the Motion Picture Association of America (MPAA) commented "Closing the legal gap between two methods of equally destructive illegal behavior - unauthorized downloading and streaming -- adds more clarity to intellectual property law and, frankly, makes good common sense”.

Espinel own Report states that "Foreign-based and foreign-controlled websites and web services raise particular concerns for US enforcement efforts. We are aware that members of Congress share our goal of reducing online infringement and are considering measures to increase law enforcement authority to combat websites that are used to distribute or provide access to infringing products."
The list of proposals suggests that Congress legislates for longer sentences for many counterfeiting offenses, including selling fake military or law enforcement items, trade secrets and bogus drugs. The White House also calls for wiretap authority in counterfeiting and trademark investigations.

The recommendations gathered widespread praise from a range of groups, including the US Chamber of Commerce, which urged the Obama administration to make the US a "miserable place for counterfeiters and pirates". Perhaps unsurprisingly MPAA also applauded Espinel for "recognizing the danger posed to our workforce by theft, both in the online and physical marketplace, and by making the protection of the creative workers and their craft a top priority.

Espinel also included a proposal to allow a levy on terrestrial radio stations for playing recorded music in a move that will bring the USA into line with Europe and which drew support from the Recording Industry Association of America although US broadcasters were less than impressed.

http://www.dmwmedia.com/news/2011/03/15/us-quotip-czarquot-espinel-make-unauthorized-streaming-felony

Image: Ian Britton: freefoto.com