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It's Time To Upgrade "Notice And Takedown"

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Daryl Friedman
Advocacy
Jun 21, 2017 - 8:14 am

The Digital Millennium Copyright Act's notice and takedown process needs a takedown of its own. At least until it can undergo an upgrade.

Section 512 of the DMCA is supposed to provide a process by which creators can work with Internet service providers to control illegal use of their work online. But today it is out of balance, placing the burden of policing the Internet for infringement on the creators themselves while limiting the liability of infringing websites through "safe harbors" when they do the bare minimum to qualify under the law. 

Enacted in 1998, the DMCA was originally designed in part to provide music creators and other intellectual property owners with a course of action for removing infringing content from the Internet just at the time when digital and online platforms became an emerging mode of distribution. However, since its establishment the DMCA has become a source of ongoing frustration for creators. Even when a notice is successfully served and infringing content is removed, the same material is often reposted to the same site. Bold reforms are needed. The current system clearly does not allow creators to enjoy the protections copyright was intended to provide.

Yet, many ISPs, online services and websites continue to allow users to upload unlicensed content while thousands of music professionals who should spend time and money creating, instead find themselves squandering these resources on  preparing and serving complicated takedown notices to have that content removed.

This is why the U.S. Copyright Office's December 2015 announcement of an in-depth study of the DMCA's Section 512 is welcome news. In March 2016, the Copyright Office further announced it will conduct a pair of two-day public roundtables in May to gather additional input on the matter from stakeholders. The Recording Academy has filed comments with the office expressing our views on the law, with first-person accounts by Academy members regarding their notice-and-takedown experiences.

This isn't the first time The Recording Academy has publicly weighed in on the DMCA's provisions.

The House Judiciary Committee's ongoing review of copyright law turned its attention to the effectiveness of the DMCA's safe harbor and notice-and-takedown provisions in March 2014, when the House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the issue. Maria Schneider, a GRAMMY-winning jazz/classical composer and a member of The Recording Academy New York Chapter Board of Governors, gave compelling testimony at the hearing about her ongoing struggle to control online infringement of her work via the DMCA guidelines.

"Taking my music down from these sites is a frustrating and depressing process," she said. "The DMCA makes it my responsibility to police the entire Internet on a daily basis. As fast as I take my music down, it reappears again on the same site —like an endless Whac-a-mole game."

The task of using the notice-and-takedown process to remove infringing content is more than most artists like Schneider have the resources to tackle.Further, Schneider explained that creators who serve takedown notices are sometimes vilified by visitors to that website, who are disappointed or angered by having free access to copyrighted materials blocked by the author.

While commending YouTube for its takedown process, Schneider noted, "I took down something the other day, and now this is what the link sends to you. ... It says, 'This video is no longer available due to a copyright claim by Maria Schneider,' and then there is a sad face. Now, I find that that is designed to turn animosity toward me."

In its current filing, The Recording Academy expands on recommended upgrades to the DMCA's Section 512 first made by Schneider during her IP Subcommittee testimony:

Do Not Upload: Creators of content should be able to prevent unauthorized uploading before infringement occurs. The technology to block unauthorized works already exists, such as the Content ID program used by YouTube. Every creator should be able to register their music once through a system and have their ownership recognized across every online platform. Just like the "do not call" list, creators of content should be able to say "do not upload." 

Streamline The Process: The takedown procedure should be more streamlined and consistent to lessen the burden on the victims of infringement. To upload music on most sites, website users simply click a box saying they acknowledge the rules of the site. On the other end of the spectrum, the rights holder must embark on a multipart procedure to have the material taken down, including preparing a notice for each site, certifying documents under penalty of perjury and spending hours learning the sites' unique rules for serving the notice.

Educate Consumers: Internet service providers, hosting websites and online music services should better educate consumers, more clearly informing them it is a violation of law to upload content they do not own. 

Take Down Should Mean "Stay Down": Once a service has been notified of an infringing work, it should keep the work off of its site for good, regardless of the different names or forms it appears in. 

These reforms would make the DMCA's notice-and-takedown process far easier for creators to navigate and be more effective in limiting online piracy and infringement. An upgraded DMCA would provide the fairness and protection of an effective copyright law. 

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Recording Academy And Leading Songwriters Ask DOJ To Improve PRO Licensing

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Daryl Friedman
Advocacy
Jun 21, 2017 - 8:14 am

Imagine a world in which lone songwriters are regulated by the federal government, while major radio conglomerates and publicly traded tech companies are treated as a protected class. 

Welcome to the world of the American songwriter.

Songwriters affiliated with performance rights organizations (PROs) ASCAP and BMI, including thousands of professional songwriter members of The Recording Academy, are paid performance royalties subject to consent decrees, decades-old mandates issued by the Department of Justice. These decrees were originally designed to prevent monopolistic practices that would subject small mom-and-pop radio stations to paying fees they deemed too high. As a result, rather than songwriters and their representative organizations negotiating pricing and licensing agreements based on what creators consider fair compensation and what the market can bear, the mandate-based system requires mandatory rate court proceedings. These proceedings allow the courts to set rates when parties cannot agree.

Decades later, you can imagine how this system plays out to benefit corporations at the expense of songwriters. While technology and music delivery systems have created a sea change within the industry, the consent decrees have not been updated to keep pace. Instead, the consent decrees keep royalty rates paid to the creative class artificially low, while protecting giant corporate radio companies, dominant Internet radio players and monopolistic satellite radio companies. The balance of power has been turned upside down — where once the mom-and-pops asked for protection, now it is those who make music who must be safeguarded. 

That is why The Recording Academy, which represents 23,000 professional members, including thousands of composers and songwriters, filed comments with the Department of Justice asking for modifications to these outdated consent decrees. Joining us are six of our member songwriters, representing a cross section of our songwriting community: Darrell Brown, Sue Ennis, Sean Garrett, Lukasz "Dr. Luke" Gottwald, Harvey Mason Jr., and Greg Wells. These successful songwriters — responsible for millions in sales across the rock, pop, R&B, and country genres — want to ensure that a vibrant marketplace will exist in the future, allowing the next generation of songwriters to earn a living from their craft.

So where do we stand on the ASCAP/BMI consent decrees? We propose that the consent decrees be modified so that ASCAP and BMI can continue to serve their (and our) songwriter members and the marketplace. Below are The Academy's proposed modifications:

  1. Fair Market Rates
    Our first concern is that songwriters receive fair market value for the public performance of their work across all media channels and services, from traditional broadcast to digital transmission media. Since ASCAP and BMI are still restricted from negotiating licenses in the free market, modifications to the consent decree should ensure that any alternative rate-setting process results in royalty rates still approximate to what would have been negotiated in the free market.
  2. Arbitration
    Modifications to the decrees should provide for the most efficient licensing process possible, so that the process is quick and inexpensive to creators and provides them fair and timely compensation. In the absence of free-market negotiations, an alternative could be an arbitration process that would streamline the rate-setting process in a manner that is faster, more cost-effective, and that produces results that are more reflective of the current marketplace when compared to the current rate court process.
  3. Bundling Rights
    Further, The Academy supports allowing rights holders to grant the PROs rights in addition to public performance rights, such as mechanical rights. 
  4. Partial Rights
    Finally, we also believe that ASCAP and BMI's members should be able to grant those organizations partial rights, as the current "all or nothing" restrictions could lead to complete withdrawal to the detriment of songwriters.

Songwriters and composers create the very DNA of the music we love. If they cannot make a viable living from their creative work, the music we love is at risk and the entire marketplace could collapse. The PROs must have the ability to modernize so that they can continue to protect songwriters and secure fair market value for creative work. The consent decrees must allow the PROs to do this. 

 

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Sunshine On A Grain-y Day: 5 Things Creators Can Be Thankful For During This Difficult Thanksgiving

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As we approach Thanksgiving, here are five things music makers can be thankful for during this difficult year
Advocacy
Nov 23, 2020 - 4:51 pm

During this holiday season, music creators are not looking for a gift, they are in need of an economic lifeline. The COVID-19 pandemic impacted the music community swiftly and has continued to limit creators’ access to traditional sources of revenue.

While this is a holiday season unlike every before, there is much to be grateful for but also much work left to do. With support from our members, the Recording Academy continues to lobby Congress for the inclusion of essential financial relief and key creative protections in any end of year COVID relief package. Here are five things music makers can be thankful for during this difficult year:

1. COVID-19 Relief: Tur-Key To Helping Music Creators Survive

When the pandemic started, Congress acted quickly to provide necessary aid to the entire music ecosystem. The $2 trillion CARES Act relief package contained a number of key provisions to help music makers survive the initial impact of the pandemic, including a new pandemic unemployment assistance program for eligible self-employed workers, new small business loan programs, and a $75 million supplemental fund for the National Endowment for the Arts (NEA), among others.

But these programs were only temporary—many have expired, or will expire by the end of the end of the year-- leaving millions of creators with growing financial strain and without essential lifelines. From saving our stages to fixing our unemployment system for gig workers, Congress must pass another relief package to aid creators and to help ensure that music plays on after the lockdowns are lifted.

2. Mechanical Licensing Collective: Helping You Collect A Helping Of Royalties

Part of the Music Modernization Act (MMA), the Mechanical Licensing Collective (MLC) was established as the new entity tasked with administering blanket mechanical licenses, collecting mechanical royalties from digital streaming services, and distributing those collected royalties to the right songwriters, publishers, composers, and lyricists.

The MLC will officially start collecting royalties on January 1, 2021, and distributing those royalties to songwriters and publishers in the months following. For more information on how the MLC works for creators, watch the Academy’s webinar with Kris Ahrend, CEO of the MLC.

3. HITS Act: Incentivizing Music Makers To Corn-tinue Creating Records

The Help Independent Tracks Succeed (HITS) Act will jumpstart the creation of great new music by incentivizing creators to safely re-enter the studio. Designed with independent music makers in mind, the bipartisan HITS Act would allow artists and producers to deduct 100% of their production expenses in the year such expenses are incurred, a departure from the current policy requiring production expenses to be amortized over the economic life of a sound recording.

The HITS Act was introduced in the House of Representatives by Reps. Linda Sanchez (D-Calif.) and Ron Estes (R-Kan.) on July 30, 2020. Let’s hope the HITS Act will be passed into law in order to help support independent records during the pandemic.

4. DMCA Reform: Combatting Online Pie-racy

The Digital Millennium Copyright Act (DMCA) was created to increase innovation and combat bad actors online. Since the bill’s passage in 1998, the internet has significantly evolved and the DMCA needs to be updated to reflect the current internet landscape. This year, Recording Academy Chair and Interim President/CEO Harvey Mason jr. and Yolanda Adams, a four-time GRAMMY winning singer/songwriter and co-chair of the Academy’s National Advocacy Committee, testified in support of DMCA reform before the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Subcommittee Chairman Tillis (N.C.) has spent the past year listening to stakeholder groups and plans to issue draft legislative changes next month.

5. Recording Academy Members: Nothing Is Feast-ible Without You!

Throughout this difficult year, the Academy has continued to call on you, our members, to voice support for creator-friendly legislation, resulting in thousands of letters sent to Congress and hundreds of meetings with Congressional offices. Congress has been receptive to the needs of a struggling music ecosystem and our community will continue to push policymakers to stand firmly with music makers until we recover from the impact of the pandemic.

As you gather around the Thanksgiving table with your household, or share a virtual meal with family and friends from a far, send thanks to Congress for the aid they’ve given and urge them to give more assistance and protections to the music community in need.

Lastly, learn more about the issues impacting the creative community on the Academy’s Issues & Policy page and take action on the Act page.

Recording Academy And Music Community Coalitions Continue Advocacy For COVID-19 Relief

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District Advocate Day 2020

 

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District Advocate Day Unites Music Makers & Lawmakers Toward Pandemic Relief

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Nearly 2,000 Recording Academy members – including GRAMMY winners and nominees – took part in over 250 meetings today in the year's largest grassroots music advocacy movement
Advocacy
Aug 12, 2020 - 9:39 am

Worlds collided today, as across the country the Recording Academy's seventh annual District Advocate day brought together the professionals who make the music we love and the members of Congress who make the laws affecting their livelihoods. Academy members engaged in a series of virtual meetings with their elected officials to discuss pressing issues impacting the music community, such as providing pandemic-related relief and assistance to the creative community, pushing for equitable treatment and social justice reforms, and ensuring that the rights of all creators are always protected.

District Advocate Day participants included GRAMMY winners Yolanda Adams, Brandy Clark, José Feliciano, John Legend and Ziggy Marley and GRAMMY nominees Victoria Monét and Offset, plus nearly 2,000 other music professionals.

The event marked the crescendo of the Academy's "Summer of Advocacy," an ongoing effort to help provide pandemic relief for music creators, to support survival of music businesses and to promote positive social change through legislation.

And it’s working. Earlier this year, Academy members helped secure important provisions in the CARES Act that provided critical support for the music community dealing with the COVID-19 pandemic. Today's conversations between Academy members and their Senators and Congressional Representatives took the next big step to ensure the music community is heard at a critical time for legislative support.

"District Advocate Day has always been an important initiative for music advocacy and it's especially true now," said Harvey Mason jr., Chair and Interim President/CEO of the Recording Academy. "Creators are among the hardest hit and first out of work, yet music is what brings the world together in hard times — and for many, it brings hope. Today, we raise our voices to remind legislators of the vital role music plays during this pandemic and, equally as imperative, the creators behind it who are struggling and desperately needing a helping hand from this country's leaders."

With District Advocate day, the Academy continues to amplify the voices of creators and small businesses, while also endorsing and developing additional legislation to deliver aid to creators. For instance, developed and endorsed by the Recording Academy alongside Rep. Linda T. Sánchez (D-Calif.) and Rep. Ron Estes (R-Kansas), the Help Independent Tracks Succeed (HITS) Act would allow individuals to fully expense the cost of new studio recordings on their taxes, up to $150,000, within the same year of production. Academy members encouraged their representatives to co-sponsor the HITS Act during today's meetings.

Members also advocated for passage of the Reviving the Economy Sustainably Towards a Recovery in Twenty-twenty (RESTART) Act, a loan program that would provide funding to cover six months of payroll, benefits, and fixed operating expenses for businesses that have taken a substantial revenue hit during the COVID-19 pandemic. For independent workers with mixed-income types, a category which includes many music creators across the country, the Mixed Earner Pandemic Unemployment Assistance Act proposed a solution to ensure unemployment relief and assist freelance workers unable to receive just unemployment aid. 

Members discussed these key issues and more today in year's largest grassroots music advocacy movement. District Advocate, along with the Recording Academy's annual GRAMMYs on the Hill in April, which is on hiatus this year due to COVID-19, are the Recording Academy's premiere advocacy events, and are credited by bipartisan legislators with helping to pass the Music Modernization Act into law — the largest update to music legislation in the past 40 years. 

For more information about District Advocate Day and Recording Academy advocacy initiatives, visit www.grammy.com/districtadvocate.

Take Action Today: Learn About The Key Issues Facing Creators And How You Can Help

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The Digital Millennium Copyright Act Revisited: Keeping Music Policy Modern

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A Senate Judiciary Intellectual Property Subcommittee hearing takes a hard look at how the ever-important DMCA is holding up in today's ever-changing music industry
Nate Hertweck
Advocacy
Feb 12, 2020 - 4:16 pm

In 1998, Chumbawamba topped the charts, MySpace was created, and the Digital Millennium Copyright Act (DMCA) was enacted to, "manage piracy risks and encourage the creative industries to "experiment, innovate, and benefit from the digital revolution," according to one of its writers, former Congressman, and a past Chairman of the House Judiciary Committee, Lamar Smith (R-Texas). Twenty-two years later, this core intention of the DMCA remains, even as the music industry and technology it governs have changed.

But keeping the DCMA relevant takes work. On Tuesday, the Senate Judiciary Intellectual Property (IP) Subcommittee held its first DMCA hearing titled “The Digital Millennium Copyright Act at 22: What Is It, Why Was It Enacted, and Where Are We Now?” with the aim of exploring ways the U.S. can better promote the creative economy in the 21st century.

The Senate’s IP Subcommittee heard from two panels and a total of eight witnesses. Chairman Thom Tillis (R-NC) kicked things off by, "discussing DMCA’s origins and stated that the hearings are intended to result in finding a bicameral and bipartisan solution to update the legislation. Ranking Member Chris Coons (D-Del.) addressed piracy, pointed out the DMCA was enacted before Google existed, and stated digital video piracy costs the U.S. economy $29 billion and 250,000 jobs per year, not small amounts.

The first panel set context for the DMCA's genesis with testimony from those who created it. The discussion focused on shining light on the rationale for the policy and how they envisioned the policy growing over time.  The second panel looked at the reality of the DMCA today and addressed the shortcomings of the legislation in practice on a legal basis, while discussing the gaps that exist under the law.

True to Chairman Tillis' intent for the hearing, the juxtaposition of the two panels, one focused on its origin and one on its modern applicability, provided for dynamic perspective to understand the purpose of the DMCA and its current reality in full before introducing any updates or modifications. In this spirit, Chairman Tillis and Ranking Member Coons will conduct a series of hearings to examine both the current status of DMCA and the current practices and operations of platforms and creators.

The thorough review of the DCMA comes just one week after a new report showed streaming giant YouTube continues to demonstrate disparity between massive growth as a platform and woeful support of creators.

Keeping music licensing legislation current is not easy. Through revisiting our major policies, the way this week's hearing looked deeper into the DMCA, we can ensure music creators of the past, present and the future get a fair chance at fair compensation.

Let Your Representatives Know You Stand In Support Of Music Creators' Rights