Sunday, September 27, 2015

Forced Consent

Forced Consent.  Now, there's an oxymoron for you, but that is exactly what "Consent Decrees" are--in my opinion--and I am talking about Government and big business imposing their will on writers, not old-fashioned romance.

Where is the consent when a Government-backed internet retailer decides to pay authors 0.006 per page read?  (Source: The Guardian ) (Aso Erica Verillo)

Where is the consent when Government-backed radio decides to pay music authors 0.004 per spin played?  (Source: The Trichordist )

Notice the similarity of the zero-point-double-0-digit rates!

Through "consent decrees" dating back to before most still-active musicians were born, the Government has treated songwriters as would-be exploitative monopolists, and has protected otherwise-hapless terrestrial radio broadcasters and internet music service providers by having one or two unelected, Government-appointed judges decide how much (or how little) a music copyright owner should be paid every time their music is played.

(BTW.  Consent Decrees are the reason that, come election time, a right wing politician will choose a theme song, and use it, and the left wing musician who wrote that song will object in vain.)
"...the consent decrees effectively substitute the opinion of a federal judge for that of a fair negotiation to set the rates at which those services compensate my fellow songwriters and me. After 73 years this has effectively become an unlegislated compulsory license. The consent decrees walk and talk like a compulsory license and after decades of practice they effectively are a compulsory license..."

Source: The Trichordist "Consent decrees violate individual rights..."

It's been a slow ride to the bottom for musicians, and book authors may find themselves in the same sinking boat.

The old music labels may have exploited musicians, but at least they promoted, edited, identified and groomed new talent and put out a quality product. Also, they stood up for the sale of albums as well as singles (with B-sides).


Likewise the traditional publishers may have exploited authors, but at least they paid advances, edited, and groomed and sometimes promoted new talent.  Also, they promoted new authors by putting out multi-author short story anthologies.

The music consent decrees applied to the Labels, but it also applies to the independents.... to the musicians who have their own labels.

Since Amazon allegedly complained to the Government that Apple and the 5 major publishers were endangering its monopoly of the ebook market (some would call it a monopsony), the door has been opened to consent decrees setting the market price for ebooks.

The Government did so, that time, for two years.... but even if agency has returned, it is "modified" and the new terms are applied to small press and indies as well as to the 5 publishing houses that may have "consented" to the "settlement".

AG's more measured explanation:
As part of a settlement with the Department of Justice, the publishers signed consent decrees requiring them to use the “wholesale” pricing model, where the publishers would sell books to retailers at list price, and retailers could set consumer prices as low or high as they wanted. Each publisher was free to return to agency pricing with Amazon after the expiration of its consent decree with the Department of Justice.
For an explanation of the original musical consent decrees,which are being reviewed:
In the United States, royalties from the performance of musical compositions are collected and distributed by the Performing Rights Organizations (PROs) ASCAPSESAC and BMI. Of these organizations—which distribute revenue to their songwriter and publisher members—ASCAP and BMI are governed by “consent decrees” originally issued by the US Department of Justice (DOJ) as a means to curb the anticompetitive tendencies of the publishing sector.
Consent decrees are limitations agreed upon by parties in response to regulatory concern over potential or actual market abuses. Back in 1941, there was only one legally recognized copyright in music—the musical composition—and the balance of power in the industry was heavily tilted to the music publishers and ASCAP. At the time, ASCAP acted as a kind of gatekeeper to the world’s most valuable musical repertoires, to the extent that the DOJ took action that same year to balance the scales. The result of this intervention are consent decrees that, to this day, govern how radio, whether AM/FM or digital, licenses compositions. BMI was placed under a similar set of conditions in the same year. ASCAP’s consent decree was last updated in 2001; BMI’s in 1994.
In the old days, for musicians, the tour was the marketing strategy (or a second revenue source) and the vinyl sales were the bread and butter.  Now, musicians are forced to subsidize internet start ups such as Pandora and Spotify, they are told that touring is their bread and butter, and having their music distributed by anyone who wants to distribute it is a marketing strategy.

Upside down!

Authors aren't being told to perform on stage, but incomes are down, and they are being encouraged to allow their stories to be all but given away, and their income is supposed to come from marketing, advertising and affiliate fees. How sustainable is that?

Especially since, it appears, that the cat is about to come out of the bag regarding how effective internet advertising really is. (Hint, a lot of the eyeballs that "see" "traffic" are merely bots, which will never buy the advertisers' products, even if the bots click the links.)

According to the Authors' Guild,

"Overall, the survey results showed that author incomes are down, hybrid authorship is up, and authors are spending more time marketing than ever before. In short, the business of authorship is both more varied and less profitable than just six years ago. The following document summarizes the results in more detail.
Click here to view the survey brochure that summarizes the results in more detail. "

My apologies for the somewhat disjointed flow.  I prefer to write, print out, edit on real paper.

Rowena Cherry

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