News

It's Time To Upgrade "Notice And Takedown"

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Advocacy
Jun 23, 2017 - 3:36 pm

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. 

News

Recording Academy And Leading Songwriters Ask DOJ To Improve PRO Licensing

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Advocacy
Jun 23, 2017 - 3:37 pm

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. 

 

News

Fair Use Court Ruling Isn't Fair

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Advocacy
Jun 21, 2017 - 8:25 am

Recently, The Recording Academy joined with a cross-section of organizations representing the music community to submit comments to the office of the U.S. Intellectual Property Enforcement Coordinator. These comments will help shape the IPEC's next long-term strategic plan to protect the work and livelihood of American creators. One area of emphasis in our comments was the notice and takedown process of the Digital Millennium Copyright Act.

Educating policymakers on the burden the notice and takedown process places on independent creators has been a priority for The Academy. In March 2014 GRAMMY-winning jazz and classical composer Maria Schneider testified before the House Judiciary Committee on behalf of The Recording Academy about the frustrating, time consuming and ultimately ineffective process of combating online infringement.

"The DMCA creates an upside-down world in which people can illegally upload my music in a matter of seconds," she said. "But I, on the other hand, must spend countless hours trying to take it down, mostly unsuccessfully. It's a world where the burden is not on those breaking the law, but on those trying to enforce their rights." 

More recently, a mother's YouTube video featuring her infant dancing while a Prince song plays in the background has triggered a major federal court decision that increases the burden on creators like Schneider rather than on exploiters and potential infringers. In a decision that bolsters the fair use doctrine, the Ninth Circuit Court of Appeals' Sept. 14 in Lenz v. Universal Music ruling has succeeded in making rights holders, including thousands of independent music creators, appear greedy and unreasonable for simply enforcing their rights. And that isn't fair.

At first glance, the ruling in Lenz v. Universal Music seems to be a victory for the average online user, allowing them leeway to use music or other copyrighted content for personal use without fear of being targeted by major entertainment corporations aggressively wielding the DMCA's notice and takedown process. But the ruling places a burden on all rights holders — not just corporations — by requiring them to make a good faith determination of whether offending posts fit the parameters of fair use before issuing a takedown notice, or else face a court action themselves. This has profound negative implications for smaller, independent rights holders.

Preventing a major music publisher with ample resources from putting a notice and takedown lean on one seemingly innocuous video featuring copyrighted music may seem justified, but this scenario doesn't represent the reality or scope of copyright infringement online. Large music publishers, record companies and movie studios employ legal teams to scour the Internet for infringing content. Yet, individual music creators and independent artists, without comparable finances or staffing, suffer the most from online infringement given the loss of both revenue and valuable time in which to create. These rightsholders simply do not have the capacity to abuse the system with frivolous takedown notices.

Now independent creators like Schneider not only bear the burden of policing the Internet to stop infringement, but the Lenz v. Universal Music decision forces them to become psychics able to assess the intent of the infringer, and legal experts able to parse the broadest interpretation of fair use. The threat of facing actionable judgment for misrepresenting an unauthorized post as infringement is chilling — many creators may be afraid to pursue a notice and takedown for fear of being sued. 

As disturbing as the outcome of Lenz v. Universal appears to be, many anti-copyright groups such as the Electronic Frontier Foundation don't believe the ruling goes far enough to weaken creators' rights. The EFF filed a petition on Oct. 20 to have the case reheard on the grounds takedown notices infringe on fair use and free speech.

While much of the conversation about copyright reform has focused on music licensing and how creators get paid for their work, fixing the DMCA's notice and takedown system so it works for independent artists is critical to a copyright system that works for all creators. Until reforms are made,  individual creators continue to find themselves playing an ongoing game of Whac-A-Mole, removing infringing content from a site today only to see it pop up again tomorrow, while Internet service providers remain blameless due to the DMCA's safe harbor provisions. Thanks to the Lenz decision, rights holders face another subjective hurdle in the already cumbersome notice and takedown process.

And there's nothing fair about that.

Watch Maria Schneider's testimony before the House Judiciary Committee's hearing on music licensing here.

Daryl Friedman
News

The call for fair pay for musicians is getting louder

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Music creators are coming together under The Recording Academy banner to fight to change music licensing laws and protect the livelihood of future generations of musicians
Advocacy
Jul 11, 2017 - 12:52 pm

"It's time for change."

That was the main theme in an essential op-ed titled "Music Matters In Washington," written by Daryl P. Friedman, Chief Industry, Government & Member Relations Officer of The Recording Academy, for top political website The Hill. 

Friedman recounts why music creators should be given fair market pay "across all platforms," including terrestrial radio. Citing classic rockers Cheap Trick as an example, Friedman detailed how the group has been a format staple for 40 years but has received no earnings for radio play.

He also outlined how The Recording Academy is dedicated to sounding the "alarm" for music creator activism through vehicles such as the annual GRAMMYs on the Hill in Washington, D.C., and via grassroots programs such as GRAMMYs in My District. These programs not only galvanize music creators, they shine a light on critical issues impacting music, a valuable commodity that drives our culture and boosts our economy.

Read more about what is at stake for future generations of musicians and how The Academy's movement of music creator activism has multiplied from 100 advocates to more than 2,000 in just three years.

More advocacy at The Academy: Go inside the 2017 GRAMMYs on the Hill Awards

News

Letting the Air Out of New Coalitions

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Todd Dupler
Advocacy
Jul 7, 2017 - 11:41 am

Last month, this blog recounted how hundreds of music creators and Recording Academy members descended on the nation’s capital for GRAMMYs on the Hill Advocacy Day.  Hundreds more reached out to Members of Congress in their home districts last year for the inaugural GRAMMYs in My District.  And so far this year, thousands of music creators and music fans have sent emails to Congress and flooded social media through the Academy’s online tools and through our partners at the musicFIRST Coalition.

Real people, real advocacy.

Whether it’s in Washington, D.C., in local congressional districts, or online, the message is both clear and simple: all music creators deserve fair compensation whenever and wherever their work is used.  It’s not surprising that thousands of voices have risen up for basic fairness.  It’s also not surprising that those who have an interest in keeping the status quo – big corporate broadcasters and Internet giants – are unable to muster the same kind of authentic, grassroots support for their cause.  What is surprising is the lengths they’ve gone to convince us otherwise.

The newly formed Mic Coalition purports to be for a “rational, sustainable and transparent” music industry in service to the needs and wants of consumers.  In reality, it’s a manufactured interest group led by a who’s who of corporate interests – including the National Association of Broadcasters, iHeartMedia, Google, Amazon, and Pandora – that are all committed to resisting the call for fair music royalties for creators.  Under the guise of keeping music “affordable” and “accessible,” the coalition’s mission is fear-mongering, warning that modernizing music licensing laws to ensure fairness will somehow destroy their billion-dollar businesses.  The Mic Coalition has already been rightly dismissed as the “McCoalition” for its corporate underpinnings. 

The new Re:Create Coalition requires a little more effort to look behind the curtain.  On its website, the coalition states principles that sound good.  After paying lip service to creativity, the coalition espouses the principles of balance, freedom and clarity in copyright law.  But for this coalition, “balance” really means to weaken copyright law; “freedom” is about securing the freedom to use someone else’s work; and “clarity” only seeks clear limits on the rights of creators.  The Re:Create Coalition includes the Consumer Electronic Association, the Computer & Communications Industry Association, Public Knowledge, and the Electronic Frontier Foundation, each an organization that counts tech giant Google as either a member or a supporter.

During World War II, a secret unit of the U.S. Army was deployed in Europe to fool the enemy about troop strength and movements.  The “Ghost Army” used inflatable tanks, special sound effects, fake radio communications, and more to convince the Germans that massive infantry and artillery units existed where there were none.  The effort was a rousing success and a testament to American ingenuity and creativity.  Perhaps inspired by history, Big Radio and Big Tech think they can fool us with their own fabricated ghost armies. 

The efforts of The Recording Academy’s 24,000-strong membership and other like-minded allies have stirred up some mighty big guns, the best that money can buy.  But like the rubber tanks that sat on the front lines in Europe 70 years ago, those guns aren’t real; they’re filled with hot air.  These fake coalitions can’t match the real voices of music creators and music fans that are committed to basic fairness.

Make sure your voice is heard too.  Take a moment right now to ask Congress to update our music laws to provide fairness for creators: grmypro.co/updatemusiclaw