Sunday, September 06, 2020

Razing Rights (for writers)

Ever since the Statute of Queen Anne, so, for centuries, copyright law has protected creators. For writers, copyright means that as soon as you write something.... the lyrics of a song, a blog, a play, a story, a letter,  a novel, etc, you had the right to be paid when others enjoyed your work.

At least legally and in theory, the creator owned the word and had the right to publish or not publish, to distribute or not distribute, to license or sell or not license or not sell.

Artists (or creators, or writers) might do deals and sign with agents, managers, publishers, film studios, music labels. Those deals might have been one sided, even exploitative, but the copyright owner got to sign the contract, and they were paid according to the agreements.  If they weren't paid, they had the right to sue.

With the intenet cam sharp-elbowed middlemen who inserted themselves without a contract or the consent of the creator. At first, these middlemen offered some value. They helped potential paying customers to "find" legal copies of the works, and enabled those finders to purchase rights or physical goods (such as vinyl albums, cds, dvds, paper books).  The camel's nose was under the tent.

Soon, the middlemen began to help fans to "find" illegal copies of works which might have been "free", and the copyright owners were not paid and nor were the agents and managers and publishers and labels. This was very profitable for the uncontrolled, permissionless, contractless outsiders, because they were funded by advertising.

Then came lending, and streaming, and subscription services (paid and free), and perhaps creators were paid a pittance, and perhaps they weren't, but the creators were not consulted, had no contracts, and no power to negotiate their compensation.

Amazon had its KU model, (which admittedly was opt-in) where there was a "pot" that Amazon funded, and Amazon unilaterally controlled. It was a zero sum pot. It was a "take it or leave it" pot.

Spotify has a zero sum pot, too. Musicians are not paid based on consumption, and the pot is not determined by "play" but by increasing paid subscriptions and increasing advertisements.  Songwriters never got to opt out or to set their price or choose their agent.

It's quite a scandal.  The cruellest cut is what has happened since all touring is on hiatus, and the always-weak piratical excuse that record sales (or piracy) are valuable free promotion for live tours is shown as bad business for creators.

(See also Part 2 and Part 3)

The richer and more powerful the middlemen became, the more influence they were able to buy and bully in their quest to weaken and eventually raze copyright. Chris Castle makes some telling points perhaps about high level back scratching in discussing "the anaconda in the chandelier". 

Only recently are song writers realizing just how dreadful a deal was made in 2017, when people who  had no right to represent them or make deals on their behalf without their knowledge or consent gave retroactive safe harbor to Spotify and others, making them "judgment proof" so those "music services" could not be sued for rampant copyright infringement. No recourse, no payments, rights razed for songwriters.

There is to be a new head of the copyright office. Copyright owners wonder whether the new Register will balance the rights of creators with the needs of "fans" and the ambitions of those dedicated to the profitable eradication of copyright.

Legal bloggers Linda J. Zirkelbach and Dana Tinelli for Venable discuss the key findings of the new report on Section 513 (the over-broad and over-generous Safe Harbor provisions which are not working as intended, assuming that the intention was for balance and actual cooperation between OSPs and copyright owners to discourage piracy). 

Other articles of interest are:

From Thompson Coburn, LLC, Justin Mulligan writes: 

Activist judges, allegedly, have raised the bar for copyright owners by requiring that copyright owners can face legal jeopardy if they do not consult a lawyer (which is costly) before filing a take down notice of copyright infringement. Victims of piracy who see their music or their books being exploited by others without consent, payment, or a contract must now analyze whether or not the infringement is "fair use".

For Squire Patton Boggs, Philip R. Zender and Raisa Dyadkina suggest that there might be a possibility of changes to the (outdated) DMCA. 

Happy Labor Day Weekend.

All the best,

Rowena Cherry


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