Stop the Copyright Royalty Board, Big Tech abuse and claim your money NOW!


Chris Castle explains why he thinks you should fight big tech companies and demand your contracts and royalties.

Op-Ed by CHRIS CASTLE of Music Technology Policy

As I posted recently (“Google’s Shameful Bullying Tactics Shown Up in CRB Again“), Google has once again unleashed its lawyers to trample on songwriters in their latest lawsuit, this time the Copyright Royalty Board in setting rates for mechanical streaming. They’re using their bottomless litigation budget to treat the government’s rate-setting agency like it’s a federal court hearing a copyright case in which Google was determined to steal the product. of someone else’s work (like the widely criticized decision in Google v. Oracle). The same goes for Google and its grotesquely maniacal legal team. File it under Goolag News.

The latest attack from Google bullies is to force participating publishers to hand over copies of royalty statements and licenses so Google can prove what we all know – songwriters have been harassed by digital services like YouTube ever since Google has decided to fight its way to a “DMCA”. License.” That’s right – after the government stripped songwriters of the right to set their own prices with the compulsory license, Google is now using the government’s tariff tribunal to prove that songwriters are being overpaid.

Read this again: Google is now using the government’s own rate tribunal to prove that songwriters are being overpaid.

That’s right, sick puppies run the kennel. And there’s an endless supply of sick puppies on display at the Copyright Royalty Board.

So that’s the world we live in now. The government takes away – we repeat this word – your rights and your freedom to contract and consequently the government forces you to submit to the decisions of their “rates tribunal” which establishes perpetual controls on wages and prices. Why? Because at the turn of the century, something happened that looked like a market failure by any standard at the time. And oh, that’s right – “turn of the century” is the turn of the 20th century, not the 21st. So we currently have to live by rules set in 1909 when the proverbial rules of the game were much fairer than they have been for a very long time and no one can remember what was the original sin that required generational punishment . We are way beyond “sins of the father” now.

Today, we have to follow the same process in the Copyright Royalty Board (which had many predecessors and different titles, but all did essentially the same thing at a high level – telling you what you could charge for a song). The difference is sick puppies. The difference is that before streaming, users of the license were primarily record companies who had a vested interest in songwriters being supported if not successful and surviving to create new works. Record labels were (and are) tough negotiators, make no mistake about it. But they weren’t like services and their obsession with trivializing everything their networks touch, that is, everything.

Radiohead’s Thom Yorke has a striking sound interview in the Guardian in which he summarizes the band’s accomplishments on what David Lowery calls the “The reality of the new boss:

“[Big Tech] have to keep commodifying things to maintain the stock price, but in doing so they have rendered all content including music and newspapers worthless in order to earn their billions. And this is what we want? I still think it will be undermined one way or another. It makes no sense to me. Either way, all watched over by machines of loving grace. The commodification of human relations through social networks. Surprising!”

He is of course absolutely right. What exactly does this “commodification” or Americanized “commodification” mean?

In a prescient 2008 review of Nicholas Carr’s book The Google Enigma (entitled “Google the Destroyer“), antitrust scholar Jim DeLong gives an elegant explanation:

Carr’s Google Enigma made a familiar point of business strategy: companies that supply one component of a system like to commoditize other components, add-ons to their own products, because that leaves more of the value of the total stack available to the commoditizer …Carr noted that Google is unusual because of the large number of products and services that can complement the search function, including basic content production and distribution, as well as anything that can be used to collect eyeballs for advertising purposes. Google’s incentives to cut add-on costs in order to reap more eyeballs to see the ad are immense….This point is indeed true, and is therefore an additional point. In most cases, the commoditizer’s goal is limited by the knowledge that there must be enough money left in the system to support the creation of the add-ons. [in our case, the writing of songs]….

Google is in a different position. Its major complements already exist [called “catalog” or “evergreens”], and he doesn’t have to worry about the flow continuing in the short term. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A host of other works are waiting to be digitized – books, maps, visual arts, etc. If these run out, Google and other internet companies have discovered the concept of user-generated content. [under the “DMCA license”] and social networks, in which users are sold to each other, with even more advertising attached.

So overall, Google can still do well even if it leaves its add-on vendors gasping like fish on a beach.

Are you surprised that Google over-lawyers the Copyright Royalty Board is using the law to smash songwriters into an economic pile-driver and leave them “panting like fish on a beach”? You shouldn’t be, because that’s what monopoly looks like. But what can we do to stop it?

Besides a Congressional campaign to overhaul the entire system to end CRB abuse, songwriters can take direct action. First, you can write to copyright judges and tell them you don’t want Google digging into your statements under the protection of a court order. But there may also be contractual protection that you can request from publishers.

First, understand the problem in its simplest form: the government takes away your rights, instructs the CRB to guess what a free market rate would be when there never was a free market rate for mechanical royalties (since 1909, but let’s call that “never” for our purposes). This unenviable task forces judges to guess what that rate would be. A common way for judges to guess is for lobbyists representing publishers to give them “benchmarks” or examples of other deals that were negotiated outside of the legal license. This is usually accompanied by an argument that the guideline must rise to reach free market rates given the benchmarks. (Which inevitably leads to a dispute over whether publisher lobbyists pick the benchmarks and so on.). This allows everyone to pretend not to guess at a pace, which of course it is.

What Google is digging into your statements is trying to refute pins hurt you. The assumption is that all songwriters from all publishers were included in the reference references, which is probably true.

Let’s take it as a given that the whole process is dumb and an extraordinarily timid way (or something like that) to go about it. Since no one has ever asked you if you want to be included, how can you step back and retain some privacy from the greatest privacy aggressor in human history represented by rabid lawyers rampages who intend to devastate any possible shred of your sense of self just so you understand who really is the boss here? Or at least who is far richer than you thanks to the government’s inability to shield you from the DMCA notice and income shifting. (MTP readers will recognize what I call the boredom of learned helplessness.)

The first thing you can do is try to prevent your publisher from including your offers and claims in any CRB benchmarking exercise. Since all of these particular and offensive CRB subpoenas are based on benchmarking, if you don’t allow your editor to include your treat in their reference, there is at least one argument at this point that your statements and licenses should not be produced because they are not relevant to the whole reference exercise. Your statements should be excluded from either side of the evidence because they were not included in either side of the evidence in the first place.

In any case, if for any reason your publisher is required to produce your licenses and declarations, he must agree to inform you before doing so and give you the possibility of trying to stop this production, which takes usually in the form of a request to stop (or “cancel”) the subpoena at least as to you.

Publishers clearly don’t ask their authors (past or present) what they think or want on the face of it. But there must be something songwriters can do to #StopCRBAuse by Google and its henchmen.

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