Senate committee votes for peace in the music industry
Published 12:00 am Friday, June 29, 2018
For a decade, the music industry has promoted a motley series of copyright bills to Congress, only to watch them fail.
But on Thursday, an ambitious new bill, the Music Modernization Act — a broad compromise with crucial support from Silicon Valley, radio broadcasters and musicians — won the approval of the Senate Judiciary Committee.
Lobbyists said they were confident the bill would be passed by the full Senate and eventually become law, despite concerns raised by a few senators at a hearing. A version of the bill passed the House unanimously in April.
To its supporters, the Music Modernization Act brings analog-era copyright law into the digital age, correcting the flaws and loopholes that have led musicians to complain about unfair compensation from streaming services, while protecting companies like Spotify from lawsuits.
“This is going to revolutionize the way songwriters get paid in America,” said Dina LaPolt, a lawyer who has been one of the music industry’s most aggressive supporters of the bill.
A central compromise of the bill establishes a truce between music publishers and digital music services over an aspect of licensing that has led to a string of multimillion-dollar lawsuits.
For years, songwriters and music publishers have argued that streaming services have routinely failed to properly acquire mechanical licenses — the permission to reproduce a piece of music for sale or consumption, a term that goes back to the days of player pianos. At the same time, Spotify and other companies said that there was no authoritative database identifying who owned what.
David Israelite, the president of the National Music Publishers Association and one of the main drivers behind the bill, said that the prospect of litigation brought the tech companies to the table.
“I have no doubt that we could have sued them out of existence,” Israelite said of streaming services. “But we took a different approach. We decided that we wanted to settle this and try to fix the problem, because we want them to be our business partners.”
The legislation establishes a licensing collective, to be overseen by songwriters and publishers, and paid for by the digital services, with rights information maintained by the copyright owners. Digital services, which must track down rights holders or file notices in bulk with the Copyright Office, will be able to receive blanket licenses from the collective. In exchange, the services will gain protections against lawsuits.
In a lawsuit filed late last year, for example — just before a cutoff date set by the bill — a music publisher representing songs by Tom Petty, Stevie Nicks and others sued Spotify for $1.6 billion over licensing lapses. Under the Music Modernization Act, the licensing collective would serve as a one-stop shop to obtain those rights.
Some Republicans on the Judiciary Committee, including Texas senators John Cornyn and Ted Cruz, expressed reservations Thursday about a collective established by the government rather than the free market, but still voted in favor of the bill.
Christopher Harrison, the chief executive of the Digital Media Association, a group that includes Google, Apple and Amazon, said that the new process would remove the bad faith that has existed between music publishers and streaming services.
“I describe those conversations as like the end of a (Quentin) Tarantino movie, where everybody is pointing guns at each other and claiming it’s the other person’s fault,” Harrison said. “We had a number of really frank conversations with publishers, saying, ‘Let’s get past who is to blame and figure out how to solve the problem.’”
A critical element of the bill would allow musicians to be paid for digital plays of recordings made before 1972, which are not covered by federal copyright. At a Senate hearing last month, Smokey Robinson called that rule unfair. “An arbitrary date on the calendar,” he said, “should not be the arbiter of value.”
The bill includes two provisions favored by the American Society of Composers, Authors and Publishers and BMI, the industry’s two biggest royalty clearinghouses, over the complex procedures used to set royalty rates in federal courts.
Both groups, which are governed by federal regulations, would be able to introduce new kinds of evidence in court. Those trials are overseen by a pair of judges whose decisions are endlessly scrutinized for clues about future cases; under the Music Modernization Act, the cases would be randomly assigned to a pool of judges in the Southern District of New York, which the bill’s backers argue would make the process more fair.
The Music Modernization Act combines parts of several proposals made over the past year. But some parts of the legislation have been proposed before in separate bills, most of which collapsed from disputes among warring factions of the music industry.
“Congress was getting tired of us coming to them with narrow fixes,” said Daryl Friedman, the chief advocacy officer of the Recording Academy, the organization behind the Grammy Awards.
Although lobbyists agreed on a compromise bill that has broad support, one long-sought change to copyright law — the ability for performers and record companies to be paid when songs are played on terrestrial radio, in addition to songwriters — was sacrificed to gain support from broadcasters, who for decades have bitterly opposed such a change.