Wednesday, February 18, 2015

2.19.15 IN WHICH THE COPYRIGHT OFFICE FIXES EVERYTHING


This article originally appeared in the 2.19.15 issue of Metroland


            In my last column we talked about the Flo & Eddie lawsuit seeking performance right payments for pre-1972 recordings.  The lawsuit is going very well for them, and as I explained, it highlights what a putrid and stupid mess copyright law has become, especially regarding music.  If you wanna go back and review the article now, we’ll wait.

            Tap tap tap... OK, on the same day my article ran, the Copyright Office (the federal agency that oversees all things copyright) issued a 250-page report entitled Copyright and the Music Marketplace, calling for a massive restructuring of how music is licensed and how musicians and songwriters get paid.  Sort of.   I think.

            When the report came out on February 5, everybody in the music biz trumpeted its existence.  A few hardy souls even made cursory comments about whether it was good or bad, based apparently on what is contained in the 13-page executive summary of the report.  Since then it’s been radio silence all around.  None of my go-to sources have said a peep, and I could find only a small handful of obscure blogs have attempted to sort it all out and explain the report comprehensively.

            I think a lot of this has to do with the complexity and mundaneness of the issues.  I’m not sure it’s possible to sit down and read the entire report without losing one’s mind and entering a state where violence and substance abuse seem like the only answer.  Heck, that’s how I felt after just reading the executive summary.  But let me try to, in the space allowed, impart at least a little of what I think is going on here.

            First the report recognizes that the current system is broken.  There are rules that date back to the days of player pianos, there are internet-specific rules that were made before anyone really realized what the internet was and what it could do, there are distinctions made that are artificial and nonsensical, and there is a tendency for secrecy among big players that benefit the big players at the expense of everyone else.

            The report explicitly recognizes this, and notes that consumers are rapidly switching from owning music (CDs and downloads) to accessing music through streaming services (like Spotify and Pandora) and how the current and outdated structure of payments doesn’t compensate musicians and songwriters at nearly the same rate as before. The report appears to suggest a consolidation of rate-setting under a single tribunal at the Copyright Office, and an effort to treat various types of music delivery (radio v. streaming v. physical delivery) as functional equivalents (which they are) and give them equivalent pricing structures.

            That sounds good to me.  We’ve now got a situation where the license fees from radio / TV/ nightclubs, etc. to ASCAP and BMI are set by a couple of federal judges, the price of using a song on a recording is set by Congress (if you’re using the entire song) or by private negotiation (if you’re using part of the song), and where Pandora pays marketly different royalties than Spotify, simply because Pandora won’t play the specific song you feed it (it only will play similar songs) while Spotify does.  It’s really just plain dumb.  And expensive.  And unpredictable.  It makes sense to have all this set by one dedicated body that has the expertise to do it.

            There were a number of other specific proposals that were good.  Like extending federal copyright protections to pre-1972 sound recordings.  This would take care of the multitude of issues we discussed last week arising from the Flo & Eddie litigation.  Like imposing on broadcast radio a performance license for sound recordings, which would put broadcast radio on par with the various forms of digital transmissions, would provide performers with a much needed income source, and would free up for US musicians foreign airplay performance royalties that are currently being withheld by foreign performing rights groups because the US (almost uniquely in the civilized world) refuses to pay them.  Like transparency in licensing and music use.  The most valid complaint about Spotify is that it doesn’t disclose how it determines its pay-outs.  Does anyone know how ASCAP whacks up its money?  Shouldn’t musicians know who is listening to their music, so better to whip up marketing strategies?  The report suggests that market participants disclose huge amounts of information about the deals they make, where the music goes, and the calculations used to determine where the money goes.

            Not that the report’s not all good, of course.   It really seems aimed at perpetuation the music industry as we know it.  Who knows how it will all shake out, how it gets through Congress (which needs to OK much of what’s proposed), and how long it will take.  What I’m not sure it does is ensure that the music marketplace will be fair and navigable to the smaller players, the indies, and lone rangers who make music because they have to and can’t be bothered becoming technocrats for the sake of getting the music to market.

            We’ll see.


Paul C Rapp is a high-altitude attorney and budding cheese aficionado who is pleased to be travelling to Harrisburg PA this weekend to give presentations at the Millennium Music Conference.

Saturday, February 14, 2015

VALENTIME'S DAY 2015


It was 35 years ago today!  Blotto released its first EP Hello My Name Is Blotto What's Yours?  I took my boom box to work at the Empire State Plaza and had Q104 playing low ... Ellen McKinnon didn't play it, neither did Dan Boyle.  I was walking home to have lunch a little after noon and it happened: John Cooper played our version of Stop In The Name Of Love... and we were on the radio.  With my boom-box on my shoulder bro-style, I was mesmerized, so much so that I stepped into traffic on the corner of Hudson and Dove and nearly got run over.

We had a record release party that night at the Hullabaloo, which was a blast.   It would be months before we learned we had a real hit on our hands with I Wanna Be A Lifeguard; we were just a hard partying, silly, half cabaret, half rock band that made sure we all had a good time every time.

Anyway, one of the big regrets we've always had was that we didn't have a good live video of the band.  I have a vague recollection of a multi-camera shoot at a big Washington DC club called The Wax Museum, but nobody's ever seen any footage.  Then about a year ago I got a Facebook message from a guy named Charles Johnson that he had a copy of Tonight at Toads.  Apparently there was a television show in New Haven featuring bands playing at Toad's Place, one of our regular haunts, and there was an episode featuring us!  Who knew?

The show is from very early 1982; we'd driven to the gig from White Lake Studios in White Plains, where we were finishing up what was to become our album Combo Akimbo.  We were all wearing the embroidered bowling shirts I'd given out for Christmas a few weeks before.  The one thing I remembered from this gig was that at the time Portrait Records was trying to sign us, and a couple people from the label drove up from NYC to see us.  They brought this crazy little girl to our dressing room-- she had crazy hair and yelled a lot and clearly thought we were great.  I recognized her about 11 months later when Johnny Carson introduced her on her national television debut singing her new song Girls Just Wanna Have Fun.

Anyway, here it is, enjoy.  Thanks to Charles Johnson for digging it out and to Rob "Bert Blotto" Richter for cleaning it up!




Wednesday, February 04, 2015

2.5.15 I CAN'T SEE ME SUING NOBODY BUT YOU


This article originally appeared in the 2.5.15 issue of Metroland

Maybe you’ve heard about how The Turtles’ Mark Volman and Howard Kaylan (a/k/a Flo and Eddie) just won a big lawsuit against Sirius radio that will entitle them to all kinds of money related to the satellite broadcaster’s use of their recordings.  Maybe you thought oh good for them, they’re stickin’ it to the Man, musicians should get paid more by the greedy corporations, power to the people right on, etc..  Which is a sane reaction until you realize what this really is all about.  And what it’s all about is what a steaming pile of crap our copyright laws are, how they’ve been hijacked and warped by lobbyists, and this ruling (and several more recent rulings that follow it) are just the copyright karma chickens coming home to roost.  It’s messy.
            Explaining this in 800 words is gonna be tough, but here goes.  It concerns sound recordings, which have long had a dicey relationship with copyright law.  Sound Recordings are considered derivative works of musical compositions and weren’t covered at all by federal copyright law until 1972 (musical compositions, on the other hand, have been covered by federal law since the 1830’s).  And when Congress decided that sound recordings were entitled to federal protection in 1972, it only protected recordings made in 1972 forward.  So owners of pre-1972 recordings have had to rely on state laws for protection.  And, as you might know, there are 50 states.  Some have statutes that protect sound recordings, some have built up court-made common laws, and they’re all a little different.
            Some court decisions in the 1930’s established that states’ copyright protection for sound recordings didn’t include the “public performance” of sound recordings.  In other words, radio could play the recordings on the air without getting permission or paying the owner of the copyright to the recording, which is typically a record company.  And when Congress decided to start protecting sound recordings in 1972, it followed this ruling, and carved out public performances from the protections sound recordings would get.  Why?  Well, inertia, for one, it was the way it always had been, but it was the broadcast radio industry lobbying that really did it, convincing Congress that airplay was just a promotional device to sell records, so no protection or royalty was necessary.  Never mind that songwriters had always had a public performance right in their compositions (ASCAP and BMI are licensing agents for songwriters’ public performance rights) and that every other performance-oriented art form (theater, film, choreography, etc.) had a public performance right.  No performance right for you, sound recordings!
            Following me so far?  Really? Weird got weirder in 1995, when Congress decided to give sound recordings a performance right, but only for digital transmissions, like satellite and internet radio and music services.  Compulsory licensing terms would be set by a tribunal under the aegis of the Copyright Office. Sound recording owners couldn’t refuse digital airplay, but they would get paid for it under pre-set terms.  So if your record got played on broadcast radio, you got nothing.  But if that same radio station had an internet feed, you got paid for that.  Stupid?  Yes.  Is this the shadow of lobbying and big money causing nonsensical changes in the law because of nothing but greed?  Absolutely.
            So along come Flo and Eddie arguing that (a) the 1995 federal digital performance right thingee doesn’t apply to their pre-1972 recordings and (b) the court rulings from the 1930’s were wrong, and that they have a performance right in their pre-1972 recordings.  And last fall a court, a federal district court on California, agreed.  And a couple of other courts, including one in New York, have also agreed.
            This opens not a can of worms, but a flotilla of snakes.  The finding that pre-1972 recordings have a performance right means that everybody who has been playing these songs, not just Sirius, but every radio station, music service (like Spotify), shopping mall, wedding hall, etc., may be on the hook.  For what?  We don’t know, because the royalty rate would be a matter of negotiation between the owners of the sound recordings and those who have used them.  There are lots of owners, not just Flo and Eddie (Flo and Eddie did something very smart years ago.  They bought their masters back from their record company), but record companies with pre-1972 catalogs. There are lots of users, and, again, there are fifty states, which might have differing spins on how this all goes down.  Does enforceability go back in time?  How far?  Who knows?  This is why god made lawyers!
            These rulings will all be appealed, and sometime in the not too distant future the issue could end up in front of the Supreme Court.  Or Congress could just jump in and say that federal law protects pre-1972 recordings, putting an end to all this nonsense.  Oldies stations could start disappearing because their corporate parents are worried about potential catastrophic liability.  Spotify could pull all pre-1972 tracks.  It is this cataclysmic and bizarre.
            Meantime, all the far-flung elements of what can laughingly be called “the music industry” are... wait for it... Unhappy Together! Stay tuned!
Paul C. Rapp is an urbane-yet-rural attorney from the wilds of the Berkshires who is making an art form of woodstove fire maintenance.
           
           













            

Wednesday, January 21, 2015

1.22.15 BROAD BAND


This article originally appeared in the 1.22.15 issue of Metroland.

All kinds of fun on the broadband front.  Finally, we’re seeing some leadership that understands the need for real and affordable high-speed internet, as a basic human right, as a public safety necessity, as an economic driver, and as a matter of national security.  The news for now is mostly good, unless the Republicans, who are so whoring for the big internet providers, screw it up.

            First is Governor Cuomo’s re-affirmance of something he’s been bouncing around for a few months—a mega-push to make high-speed internet available everywhere in the state.  What's been proposed is up to half a billion dollars of matching funds for construction of a network that will provide every part of the state with at least 25 mbps internet by 2019.

            Let’s put this in perspective. Prior to this, the New York has kicked in $70 million for internet development.  Now we’re talking a total investment of a billion, if the private money materializes, which it should.  By contrast, over here in Massachusetts there’s an odd little organization called Wired West (which solicits Paypal donations) that’s trying to get towns to underwrite 25 year multi-million dollar bonds to pay for internet infrastructure, which they claim will somehow pay for itself.  Or something.  We’re not holding our breath, and meantime, a whole bunch of us don’t have meaningful service.  It just sucks.

            And the quality of service Cuomo’s talking about is pretty dazzling.  He wants 100 mbps as the standard, but will allow 25 mbps if a showing is made that it’s too difficult to provide the higher speed.  This is most likely a LOT faster internet than you are “enjoying” right now.  My lovely overpriced satellite internet promises “blazing fast” speeds of “up to” 15 mbps, but customer service informs me that anything north of 3 mbps is considered “acceptable”.  100mbps is faster than your cable internet, a lot faster than your DSL, and absurdly faster than your wireless. 

            Of course the devil will be in the details, and the roll-out, the technology, and most importantly, the affordability of all this are yet to be seen.  But it’s bold, and as Cuomo is quick to point out, it’s the biggest state internet initiative in history.

            Over on the Fed side of things, Obama said this the other night in his awesomely excellent State of the Union address: “I intend to protect a free and open internet, extend its reach to every classroom, and every community, and help folks build the fastest networks, so that the next generation of digital innovators and entrepreneurs have the platform to keep reshaping our world.”

            This dovetails nicely with signals that the FCC will rule for true net neutrality in late February, and with studies from the FCC and the Commerce department that show the utterly dismal current state of real broadband in this country.  The studies tell us what we already know—that there is virtually no competition anywhere in the country for true broadband.  The FCC has gone so far as to propose redefining broadband as 25 mbps and up, which would demolish the internet company and telco arguments that since you have a choice between cable and wireless, why you’ve got competition!  You don’t.  You know you don’t.  That’s not a choice. 

            And finally, both Obama and the FCC have taken aim at state laws that forbid municipalities from forming their own broadband companies.  Yes, these laws exist in over 20 states, written by the big internet service companies and passed with waves of cash thrown at legislators.  There’s apparently some talking point about how these laws protect taxpayers, but of course they don’t.  They simply prop up the bloated, pampered, corrupt monopolies that are helmed by the likes of Comcast and Time Warner.  In states where these laws don’t exist, cities like Chattanooga, Seattle, and LaFayette, LA have installed city-owned networks, structured much like municipal electric systems, that deliver affordable and ridiculously fast (up to 1 gbps !!!) internet service to an adoring public.  This is the kind of thing that attracts businesses to your town.  Big time.

            Of course, since Obama’s for it, the Republicans are against it.  And because it’s a no-brainer, their arguments make no sense at all.  Net-neutrality is “government regulation” which, of course, is always bad.  Corporate butt-boy Ted Cruz has been making increasingly imbecilic remarks about net neutrality, like a conceptual art project to show how stupid his constituents are. Obama’s attacks on the protectionist state laws are an affront to “states’ rights,” which of course was what justified slavery in the 1800’s.  The fact that the Republicans are simply trying to prop up their corporate benefactors is lost on no one who is paying attention.

            With the current climate in Washington, maybe nothing will get done.  As I write this, congressional Republicans are trying to dismantle the FCC on behalf of their corporate overlords.  It’ll be a fight to the finish.

Paul Rapp, like Gregory Peck in “Duel in the Sun”, is a lecherous, amoral cowboy... wait!  wrong movie!  Paul Rapp, like Gregory Peck in “To Kill A Mockingbird”, is a dapper and civic-minded attorney devoted to social justice and good bourbon.


            

Thursday, January 08, 2015

1.8.15 ROCK PAPER SCISSORS

AND CHARLIE EVERYWHERE

This article has nothing to do with the slayings in Paris, but like Wikileaks says, you ain't Charlie
unless you're ready to post the most offensive cartoons the dead cartoonists drew.



This article originally ran in the 1.8.15 issue of Metroland.

Don’t know about you, but I hardly use paper anymore.  When I opened my own law practice almost eleven years ago, I was going through paper like there was no tomorrow.  I bought big boxes of bulk printing paper, bought ink cartridges 5 at a time, had piles of envelopes, binders, staples, paper clips, multi-colored folders; I drove to warehouses and bought big filing cabinets; my most prominent pieces of office equipment were my printer, my shredder, and my 3-hole punch.  I had a small library of reference books.  My Staples reward card held the coveted first position in my wallet.

            Those days are long gone.  Almost everything I do, from correspondence, to court filings, to filings at the Patent and Trade Office, the Copyright Office and various state agencies, is all done on the internet.  With the notable exception of the Copyright Office, which hosts the most atrocious, clunky, and user-unfriendly online filing system ever devised, these sites typically provide seamless filing and payment systems.  This eliminates not just paper, but going to the post office or some government office building to hand something to a bored, lifeless civil servant. These days, if I use two little packages of printing paper a year, that’s a lot.  I haven’t opened a filing cabinet in months.  I use my 4-in-1 printer primarily to scan things into my computer.  If I need to fax something (a rarity), I scan it and use an online fax service.  Virtually all of my research is done online. I’ve moved my binder clips into the kitchen, and enlisted them for closing food packages.  It’s fabulous.  I can practice law from my couch, or anywhere that has wifi.

            It’s a minor annoyance when I learn I actually have to file a physical document somewhere.  What?  Are we living in the stone age here or what?  State and local court systems, chronically underfunded, are just now starting to transition to electronic filing, but it’s going oh-so-slowly.  Last year I had to do a state appellate filing that required me to produce something like 11 bound copies of my brief and the trial court record, literally thousands of pages, with special colored-paper covers, and some weird page numbering system.  I was tearing my hair out trying to get it all right, and then loaded up a couple of heavy boxes and drove them to the courthouse.  It was expensive, time-consuming, nerve-wracking and fundamentally unnecessary.  In my mind I could see the court clerks unbinding one copy of my filing, scanning it into the court’s computer system, and throwing everything else away.  It’s what I would do. 

            So, it’s with some excitement that I can report the U.S. Supreme Court just announced that it, too, was going to begin building an online filing system.  The Court is legendarily Ludditetic; several justices don’t use computers or even cellphones, they write draft briefs long-hand, they send hand-written notes to each other.  The Court’s severe lack of computer and digital literacy regularly goes on display when there’s an oral argument in a case involving high-tech issues—questions are garbled or nonsensical, and often a justice will admit, in open court, that he or she doesn’t understand what the case is about.  It’s kind of funny and extremely scary, when you consider that these are the folks with the final say in matters involving intellectual property, privacy, telecommunications, pretty much everything involving a high-tech world that they neither understand nor are active participants in.  Hopefully the Justices’ clerks, typically recent law-school grads, are a little more hep to that jazzy digital noise all the kids are so crazy about.  For now, they’re our only hope that the Court’s decisions will make any sense.

            Oh yeah, and you won’t get to see any of this embarrassing court behavior because the Supreme Court doesn’t allow broadcasts of its sessions.  Which is ridiculous and a whole ‘nother topic.

            But I digress!  The good news is that starting sometime next year, all filings to the Court will be done electronically as well as (for now) on paper.  While this won’t impact any of our day-to-day lives, the Court also promises to post all court filings on its website, where the public can see them for free.  Previously, we had to use hyper-expensive online services like Westlaw or Lexis to get these documents, or scrounge around online to see if anyone had posted them.

            To most of you, this must seem banal, and almost like reading something that was written 15 years ago.  But for legal-minded folk, it’s a big deal.  Huge-a! And maybe the efficiencies this will bring to the Court will breed a little bit of an understanding and appreciation on the part of the Justices about how the world actually functions these days.


Paul Rapp is an affable Berkshire Mountain lawyer who is about to find out what a -40 degree wind chill evening is like.