RESPECT Act Should Be HYPOCRISY Act After How Often Labels Screwed Over Artists

from the respect? dept

Fri, May 30th 2014 10:47am — Mike Masnick

Yesterday, the music labels, under the guise of RIAA spinoff SoundExchange, along with Congressional Reps. George Holding and John Conyers, announced some new legislation and a coordinated PR campaign for what they're calling "Project72." The official name of the bill is the "Respecting Senior Performers as Essential Cultural Treasures Act" or the RESPECT Act. There is so much hypocrisy and ridiculousness here that it's difficult to know where to start. However, in short, the labels fought hard to keep the situation the way it is today, and a very large number of the musicians the RIAA rolled out in "support" of this new law -- claiming they just want to get paid by music streaming services -- are musicians who got totally screwed over by RIAA labels in the past. How about a little "respect"?

As we've been reporting, there's been an ongoing legal fight over how to handle pre-1972 sound recordings, because they are technically not covered under federal copyright law. This is because, back in 1909, Congress explicitly excluded sound recordings from the Copyright Act, noting that they didn't believe the Constitution allowed copyright to cover sound recordings (think about that for a second...). A variety of state copyright laws (or the equivalent) popped up to try to fill in the gap. With the 1976 Copyright Act, however, sound records made in 1972 and after were covered, leaving all recordings from pre-1972 in a bit of legal limbo. The copyright office has been debating what to do about this for years. So far, it's actually created something of a cultural disaster, because works that should be in the public domain won't be in the public domain for the rest of our lifetimes.

Meanwhile, many have suggested that a perfectly legitimate way of dealing with this would be to just retroactively say that all pre-1972 sound recordings should be brought under federal copyright law. However, the RIAA itself has fought very hard against this. Why? There are a few reasons, but here are a few big ones: (1) Since the copyright lasts so much longer under state laws, they get to keep the copyright longer. (2) They love to use this issue to claim the DMCA's safe harbors don't apply to any user-generated content site that includes pre-1972 sound recordings. It's a backdoor into gutting the DMCA's safe harbors. (3) Unlike federal copyright law, post-1978, there are no termination rights, allowing the original creator to take back their copyrights.

So it seemed particularly hypocritical last month to see SoundExchange suddenly go all crazy around the claim that music streaming sites don't pay royalties on pre-1972 works. Of course, this is, in part, because of the RIAA's own efforts to keep pre-1972 works from being put under federal copyright law. The various state laws don't include a public performance right, and thus there are no necessary licenses for the streaming of such works -- and that's been widely accepted as the law for years. Until now. If the RIAA wanted to change that, it should have helped move those works under federal copyright law, but it has fought hard against it.

Instead, we get "The RESPECT Act" which would effectively only extend performance rights to pre-1972 sound recordings, while leaving everything else about those works uncovered by federal copyright law. In other words, the RIAA (via SoundExchange) wants to only put the parts of copyright law it likes on pre-1972 sound recordings, while keeping the rest understate laws. And they claim this is about RESPECT?

But here's where it gets really, really ridiculous. To "support" this new legislation from Holding and Conyers, which they're calling "The RESPECT Act," and which they claim is all about getting musicians paid... they trotted out a bunch of famous musicians who support this law.

Project72 kicks off with an open letter, signed by more than 70 recording artists, calling on digital radio to treat all sound recordings equally and to "pay for all the music they play." Artists and bands urging these services to "do right by legacy artists" include: The Allman Brothers Band, The Beach Boys, Roseanne Cash, Melissa Etheridge, Al Green, B.B. King, The Moody Blues, Cyndi Lauper, Martha Reeves, members of Steely Dan, The Supremes, The Temptations, Three Dog Night, and many more.

Note that they say "pay for all the music they play." They do not say to "pay the artists for all the music they play." And that's because SoundExchange and the record labels have a rather long history of not actually paying the artists. Respect!

Hell, you'd think that the RIAA/SoundExchange would have the common sense to check to see whether or not any of the big name stars they brought out had a history of being screwed over and simply not paid by their RIAA labels before attaching them to this campaign. But it appears they did not. Looking through the list of artists who are part of the campaign (beyond just the headliners listed above), we see... quite a few disputes involving the RIAA not paying those artists. All of the following artists signed onto this campaign, despite the fact that RIAA-associated labels have a long history of screwing them over.

The Allman Brothers have had to sue both Universal Music and Sony Music for unpaid iTunes royalties.
The Temptations sued Universal for not paying iTunes royalties properly.
The Beatles sued EMI over unpaid royalties.
Martha Reeves sued Motown for unpaid royalties
The widow of "Dave" in the famous Sam & Dave duo had to sue Atlantic Records for unpaid royalties in 2001.
Gene Chandler's label Vee-Jay, on which he recorded "Duke of Earl," was infamous for not paying royalties and actually went bankrupt when threatened with lawsuits for unpaid royalties.
Mark Farner, of Grand Funk Railroad, was paid $350 a week for the first two years as an "employee" and, after a dispute with the band's "manager," had to give up all the rights to the music anyway (meaning he wouldn't get paid for those songs anyway).
Roger McGuinn, from the Byrds, has told Congress before that he never received royalties (beyond a "modest advance") for the 15 albums he recorded with the band, suggesting that the Byrds are still considered "unrecouped" and any money that might get paid out would just go to his label rather than him anyway.
An early member of Steely Dan has been suing claiming that he hasn't received any SoundExchange royalties he's owed.
Yoko Ono sued EMI over unpaid John Lennon royalties.

And that's just a sampling from the list (didn't have time to go through everyone, so just picked more recognizable names). While yes, they're now arguing for "royalties" from Pandora and from Sirius XM, they might want to look more closely at who they've partnered with to seek those royalties. After all, if the RIAA hadn't blocked efforts to federalize those pre-1972 recordings, this wouldn't even be an issue. And, more to the point, since the labels own the copyrights on most of these songs anyway, the royalties are going to go into their coffers, and as the list above shows, the RIAA labels seem to have nearly perfected the process of not paying artists.

If Reps. Holding and Conyers really wanted to "respect" such artists, perhaps it would focus on encouraging them to actually avoid the record labels who have worked so hard to not pay them in the past.

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Filed Under: allman brothers, beatles, copyright, gene chandler, george holding, grand funk railroad, john conyers, mark farner, martha reeves, pre-1972, pre-1972 sound recordings, respect act, roger mcguinn, royalties, sam & dave, steely dan, streaming, the byrds
Companies: emi, riaa, sony music, soundexchange, universal music

63 Comments

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Reader Comments

The First Word

“

Time to cut another check to Sweet Relief

That'd be these folks: https://www.sweetrelief.org/

They're doing what they can to take care of aging/sick musicians, who have pretty much been kicked to the curb by the same recording industry that they made rich and powerful. Of course, the RIAA could make all of this superfluous with a single stroke of the pen: but they won't. No, they and their cronies would rather keep all those hundreds of millions of dollars, their mansions, and their limousines while the brilliant musical artists of the past endure poverty, sickness and homelessness.

Is what they're doing perfect? No. But it's pretty darn good. And it's far more "respectful" than what these well-bribedXXXXXXpaid RIAA shills in Congress are doing.

—Rich Kulawiec

”

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Applesauce, 30 May 2014 @ 10:58am

Artist Unions
Why don't the artists unionize?
Individually there is no way they can have a big enough purse to compete in court with the law firms the labels have on retainer. Individually, there is no way they can match the kind of bribe money the labels can muster.
Collectively, they could pool their funds and stand up for themselves.
Or, maybe the artists thought they already had a union that was looking out for their interests: RIAA?
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Rich Kulawiec, 30 May 2014 @ 11:15am

Time to cut another check to Sweet Relief
That'd be these folks: https://www.sweetrelief.org/

They're doing what they can to take care of aging/sick musicians, who have pretty much been kicked to the curb by the same recording industry that they made rich and powerful. Of course, the RIAA could make all of this superfluous with a single stroke of the pen: but they won't. No, they and their cronies would rather keep all those hundreds of millions of dollars, their mansions, and their limousines while the brilliant musical artists of the past endure poverty, sickness and homelessness.

Is what they're doing perfect? No. But it's pretty darn good. And it's far more "respectful" than what these well-bribedXXXXXXpaid RIAA shills in Congress are doing.
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Mason Wheeler (profile), 30 May 2014 @ 11:17am

Re: Artist Unions
Unions and copyright don't mix very well.

The power of a union is that they can threaten to go on strike and shut down production. This is a credible threat in a job that requires ongoing work, but in a system where something can be produced once and then copied and resold infinitely, what leverage does the artist have?
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Anonymous Coward, 30 May 2014 @ 11:26am

Copy rights are only intended for the artist and no one else. Does anyone actually get that the constitution only reserves these rights for the creator? I can't sell my first amendment rights to a guy in China so why do record labels think they can buy copy rights from a young naive artist with a modest advance? The term intellectual property is used to obfuscate what is really being discussed, a right. A right is not property, it can't be sold.
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Anonymous Coward, 30 May 2014 @ 11:39am

Re:
Copyright is being used exactly as intended by those who pushed for it, as a means to control the works of others to preserve the profits of middlemen. Remember that the issue of any rights over musical performance did not become an issue until it was possible to record a performance. Prior to that if you bought the sheet music, or were taught a song by another performer you could perform it. Indeed the only way a song became popular was if others performed it, as any one artists could only reach the audience they could perform for, and that was how they made their money.
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Anonymous Coward, 30 May 2014 @ 11:43am

Legislative History
A variety of state copyright laws (or the equivalent) popped up to try to fill in the gap. With the 1976 Copyright Act, however, sound records made in 1972 and after were covered

This skips over Public Law 92-140 (85 Stat. 391), enacted in 1971 and effective in 1972.
�� AN ACT

To amend title 17 of the United States Code to provide for the creation of a limited copyright in sound recordings for the purpose of protecting against unauthorized duplication and piracy of sound recording, and for other purposes.

The 1976 Copyright Act didn't just reach back to 1972 arbitrarily.
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fairuse (profile), 30 May 2014 @ 11:46am

Re:
Don't forget the recording industry created contracts with artists that stipulated rights transfer so there is nothing an artist can do. Those contracts, as far as I know from persons involved way back, are just extortion. Labels had the artist in a my-way-or-no-way position.

That's all I got.
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Anonymous Coward, 30 May 2014 @ 11:49am

You might hate me but...
At what point will we consider the artists that agreed to these stupid contracts responsible for their own stupidity?

RIAA and their ilk are clearly nothing more than a legal mob. There is a reason they wine and dine you up front to make you think life will be great with them until you sign first then you see the bill later.

It's simple, you play with the devil....
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Anonymous Coward, 30 May 2014 @ 11:50am

Re: Re:
Every artists dumb enough to sign it deserves it.
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John Fenderson (profile), 30 May 2014 @ 12:10pm

Re:
"I can't sell my first amendment rights to a guy in China"

Sure you can. I've sold some my first amendment rights to my employer (in the form of an NDA). If my employer was some guy in China, I'd still be able to do that.
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Anonymous Coward, 30 May 2014 @ 12:17pm

Re: You might hate me but...
Remember that these artists could sign with a label, or take up a different occupation. They did not have the Internet to allow them the option of self publishing.
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Anonymous Coward, 30 May 2014 @ 12:22pm

Record labels not paying royalties: bad. Pandora and Sirius not paying royalties: good. Makes perfect sense, Masnick.
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jupiterkansas (profile), 30 May 2014 @ 12:25pm

Cyndi Lauper? She doesn't have any pre-1972 recordings.
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Anonymous Coward, 30 May 2014 @ 12:29pm

Re: Re:
I've sold some my first amendment rights to my employer

Because, in America, private parties may at whim direct the actions of the state. The acts of Article III courts are mere ministerial rubberstamps, applied mechanically�without discretion�judges must heed and obey the agreements of litigants.

That's why, in America, preliminary injunctions might be extraordinary remedies, but you may always contract for the extraordinary�as of right.
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That One Guy (profile), 30 May 2014 @ 12:30pm

Re:
[Citation needed]
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Anonymous Coward, 30 May 2014 @ 12:34pm

Re: Re: You might hate me but...
Sorry but that will not buy any traction with me.

This is a fundamental problem with humans... just going with flow. It is clear, we reap what we sow! When we allow an organization to bamboozle you like that then don't complain when you get the shaft without the lube.

Human nature and business has never been a muddy or unclear thing. We ignore this at our peril. Corruption always grows enough that nothing short of blood will be required to undo because of things like what you just.

You, as well as they, were already defeated because neither of you saw no way to beat Goliath.
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John Fenderson (profile), 30 May 2014 @ 12:46pm

Re: Re: Re:
"private parties may at whim direct the actions of the state"

This isn't a case of that at all. It's a case of the Constitution only applying to government actions. Private parties are generally not bound by it.
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Anonymous Coward, 30 May 2014 @ 12:48pm

Re: Re: Artist Unions
...The power of a union is that they can threaten to go on strike and shut down production. This is a credible threat in a job that requires ongoing work, but in a system where something can be produced once and then copied and resold infinitely, what leverage does the artist have?

ELI5: SAG-AFTRA. They could strike, but they won't.
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Anonymous, 30 May 2014 @ 12:49pm

I watched a show last night about video, music, and game piracy. Talk about slanted and biased! It was so slanted and biased it sounded like it could have been written by the MPAA and RIAA.
One funny thing struck me about the show. The reporter hosting it was doing so inside a Best Buy. You know, the big box store that sells computers, burners, blank discs...everything needed for piracy. I guess the network didn't see the irony in that.
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Anonymous Coward, 30 May 2014 @ 12:55pm

Re: Re:
Educate yourself, dumbass:

http://www.huffingtonpost.com/2014/05/29/musicians-digital-royalties_n_5413124.html
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 12:56pm

Re: Re: Re: Re:
It's a case of the Constitution only applying to government actions.

Which perfectly explains why the Thirteenth Amendment only applies to the government. Because the Constition doesn't apply to private plantation owners and their private chattels!
[ link to this | view in thread ]
That One Guy (profile), 30 May 2014 @ 1:11pm

Wanting to have their cake, and eat it too
... really? Your 'citation' was a spin piece for the very bill discussed in the article?

Maybe if you'd actually, I dunno, read this article you'd know that that's already been covered, but here, to save you some of that horribly difficult 'reading', here's the relevant parts:

'However, the RIAA itself has fought very hard against this. Why? There are a few reasons, but here are a few big ones: (1) Since the copyright lasts so much longer under state laws, they get to keep the copyright longer. (2) They love to use this issue to claim the DMCA's safe harbors don't apply to any user-generated content site that includes pre-1972 sound recordings. It's a backdoor into gutting the DMCA's safe harbors. (3) Unlike federal copyright law, post-1978, there are no termination rights, allowing the original creator to take back their copyrights.

[...]

The various state laws don't include a public performance right, and thus there are no necessary licenses for the streaming of such works -- and that's been widely accepted as the law for years.Until now. If the RIAA wanted to change that, it should have helped move those works under federal copyright law, but it has fought hard against it.

Instead, we get "The RESPECT Act" which would effectively only extend performance rights to pre-1972 sound recordings, while leaving everything else about those works uncovered by federal copyright law. In other words, the RIAA (via SoundExchange) wants to only put the parts of copyright law it likes on pre-1972 sound recordings, while keeping the rest under state laws.'
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 30 May 2014 @ 1:24pm

Re: Wanting to have their cake, and eat it too
Spin? Mike Masnick is a paid shill for Bubble Valley. Huffington Post is an actual news site. You're a fucking idiot.
[ link to this | view in thread ]
That One Guy (profile), 30 May 2014 @ 1:54pm

Re: Re: Wanting to have their cake, and eat it too
https://yourlogicalfallacyis.com/ad-hominem
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Mason Wheeler (profile), 30 May 2014 @ 1:58pm

Re: Re: Re: Artist Unions
Umm... what in the world is a "ELI5: SAG-AFTRA"?!? Mind running that by me again, in English this time?
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Mike Masnick (profile), 30 May 2014 @ 2:06pm

Re:
Record labels not paying royalties: bad. Pandora and Sirius not paying royalties: good. Makes perfect sense, Masnick.

No, not good. But the answer is simple: put all pre-1972 sound recordings under federal copyright law. Then Pandora and Sirius will have to pay (which I'm fine with).

My problem is the hypocrisy in which the laws DO NOT currently require them to pay, but for the RIAA/SoundExchange to pretend this is some horrible thing when THEY are the ones who have blocked the most obvious solution... and have REGULARLY abused the different laws that cover pre-1972 works for their own benefit... well, that's just sick.

Why are you defending the RIAA exploiting artists?
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Anonymous Coward, 30 May 2014 @ 2:21pm

Re: Re:
Put all pre-1972 sound recordings under federal copyright law.

GINSBURG, J., joined by ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, and SOTOMAYOR, JJ., will all vote to uphold that, whether or not Congress secures the new federal rights in sound recordings to �Authors�.
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John Fenderson (profile), 30 May 2014 @ 2:22pm

Re: Re: Re: Re: Re:
This sort of thing is why I said "generally". I regret that I omitted it from the sentence of mine that you quoted, but I thought that my use of it in the following sentence covered this situation. My mistake.
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Anonymous Coward, 30 May 2014 @ 2:28pm

Re: Re: Re: Re: Re: Re:
This sort of thing is why I said "generally".

Generally, try Article VI:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Is that the �general� provision? Or not.
[ link to this | view in thread ]
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Anonymous Coward, 30 May 2014 @ 3:47pm

Re: Re:
Why do you defend piracy every day here, you hypocritical assbag?
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That One Guy (profile), 30 May 2014 @ 4:46pm

And again...
https://yourlogicalfallacyis.com/ad-hominem
https://yourlogicalfallacyis.com/strawman
[ link to this | view in thread ]
JMT (profile), 30 May 2014 @ 4:55pm

Re: Re: Re:
So Mike asks you a question based on a statement of fact (you are actually defending the RIAA exploiting artists), and your response is a childish retort without a shred of truth topped off with name-calling.

Assuming you are some part of the music world, you are your industry's own worst enemy. You stupidly accuse people of hating artists, and then behave in a manner that would make people hate artists if we believed for a second you actually represented them in some meaningful way. Your behavior is actively contributing to the rapidly declining respect for copyright.
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Anonymous Coward, 30 May 2014 @ 5:46pm

Re: Re: Re:
Where was piracy mentioned in the article, douchetard?
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Anonymous Coward, 31 May 2014 @ 1:14am

Re: Re: Re:
Yes, because there's no such thing as boiler-room sales pitches.

/s
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trollificus (profile), 31 May 2014 @ 5:49am

Re: Re:
Not really.

In the example you present (NDA), you've sold off your RIGHT TO UTILIZE your free speech(and only about a very specific subset of well-defined things), but you haven't "exchanged it for money" in the sense that your hypothetical Chinese employer can use it and you no longer can.
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Anonymous Coward, 31 May 2014 @ 9:27am

Re: Re: Re: Re: Artist Unions
SAG-AFTRA is the Screen Actors GuildAmerican Federation of Television and Radio Artists (an American labor union representing over 160,000 film and television principal and background performers, journalists, and radio personalities). The only reference I can find to ELI5 is "Explain Like I'm 5."
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Anonymous Coward, 31 May 2014 @ 9:44am

Re: Re: Re:
(and only about a very specific subset of well-defined things)

And furthermore, in the case of trade secrets, only as long as those private, commercial secrets do not independently become matters of public knowledge.
[ link to this | view in thread ]
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Anonymous Coward, 31 May 2014 @ 9:58am

Re: Re: Re: Re:
Yeah, go ahead and pretend you're not aware that Masnick is a piracy apologist. I'm sure that'll work out real well for you.
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Anonymous, 31 May 2014 @ 11:14am

Re: Re: Re: Re: Re: Re: Re:
Supreme law of the land. Suuuuu-preme! Well, la-di-da. They can take their authority and laws and shove them up THEIR butts, not ours.
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John Fenderson (profile), 31 May 2014 @ 11:56am

Re: Re: Re: Re: Re: Re: Re:
I think we are out of sync. I was talking about something very specific: the bulk of the Constitution lays out restrictions on what the government can do. There are a few specific items that lay out what is impermissible for citizens, but they are the exception rather than the norm. So, generally, the Constitution restricts the actions of the government, not the citizenry.
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John Fenderson (profile), 31 May 2014 @ 12:00pm

Re: Re: Re:
I think that's pure semantics. Selling off the right to utilize my free speech is functionally identical to selling off my right to free speech. I've absolutely exchanged it for money -- if I wasn't getting money, there's no way I'd agree to give up some of my free speech rights.

If I do this with a Chinese employer, just as with a domestic one, my employer retains full free speech rights and I do not. So I've exchanged it for money.
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Anonymous Coward, 31 May 2014 @ 1:24pm

Re: Re: Re: Re: Re: Re: Re: Re:
So, generally, the Constitution restricts the actions of the government, not the citizenry.

Generally, it's just a bad idea to try arguing your way out of a speeding ticket claiming that �the law� really only restricts how fast state troopers may be permitted to fly down the interstate.

The Constitution, notwithstanding a colorable historical viewpoint that it may be regarded as a compact among states, nevertheless, does declare in its preamble�
We the people of the United States � do �
In its most general terms, then, the Constitution must be regarded not merely as a confederation of colonial governors, but as AN ACT OF THE PEOPLE.

What are these people doing in this great act? They are enacting, for themselves and for their posterity, a plan of national government. They are DELEGATING POWER to a legislature, an executive, and a judiciary. The powers granted in the first, second, and third articles are the power to make the laws, enforce the laws, and judge under those laws.

It is not to be pretended, even for an instant, that the object of this great national plan was merely to provide for the better restriction of bureaucrats in the civil service. Rather, it was then �is now� quite obvious that this system of national government intended LAW of GENERAL APPLICATION. It intended laws to regulate citizens.

Thus, overall, the Constitution mediates the collective power of the national citizenry to govern themselves in their national affairs. That is the Constitution, generally. It restricts citizens.
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Anonymous Coward, 31 May 2014 @ 2:02pm

Re: Re: Re: Re:
I think that's pure semantics.

semantics: noun
The branch of linguistics and logic concerned with meaning�

So what you're saying there is that we're arguing over the meaning of the terms you employed?

In practical usage, you must concede the difference in meaning between having an action for monetary damages, and having an action for specific performance.
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Anonymous Coward, 1 Jun 2014 @ 1:44am

Re: Re: Re: Re: Re:
Just like you're pretending you're not an idiot?

Right, because that evidently worked out well for you.
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John Fenderson (profile), 1 Jun 2014 @ 9:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Generally, it's just a bad idea to try arguing your way out of a speeding ticket claiming that �the law� really only restricts how fast state troopers may be permitted to fly down the interstate"

True. But I'm not saying anything close to that.

The constitution does two things: it authorizes and describes the government and how it should run, and it provides specific limitations on that government. It does not, with only a couple of exceptions, limit individual action. This is high school civics stuff.

So the first amendment does not mean I can't restrict your speech in my in house, publication, Web site, TV station, etc. It is entirely legal for me to do that. It is not legal for the government to do the same (with a few exceptions). That's all I'm saying.
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John Fenderson (profile), 1 Jun 2014 @ 9:38am

Re: Re: Re: Re: Re:
No, of the term that you employed. In the context of our discussion, selling the a ability to use a right and selling the right itself are essentially the same thing.
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Anonymous Coward, 1 Jun 2014 @ 8:53pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
it authorizes and describes the government and how it should run
Who establishes the national government? In constitutional terms, is a scrap of parchment self-ordained as the inheritor of the divine right of kings?
it provides specific limitations on that government
Who is being limited in how they provide for their safety and happiness?
It does not, with only a couple of exceptions, limit individual action.
Well, Generalissimo so-an-such has plenty of individual initiative�and so do his soldiers. Why doesn't he just declare himself El Presidente?
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Anonymous Coward, 1 Jun 2014 @ 9:12pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
the first amendment

In reasonable discussions, we maintain clear distinctions between �the Constitution, generally�, �the Bill of Rights�, and �the First Amendment�. They are not synonyms for each other.

Neither is �the First Amendment� synonomous with �the Fourteenth Amendment�.

Nor should any of those be confused with �the First Amendment as incorporated against the states by the due process clause of the Fourteenth Amendment�. Although that is indeed unwieldy phrasology, and quite often shortened, when people are all on the same page.

Finally, before you become too enamored of the state action doctrine, make sure to read Justice Harlan's dissent in the Civil Rights Cases (1883). Judge for yourself, in the light of history, which side had the better argument: who was right and who was wrong.
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John Fenderson (profile), 2 Jun 2014 @ 8:28am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Who establishes the national government? In constitutional terms, is a scrap of parchment self-ordained as the inheritor of the divine right of kings?"

I just said: the constitution does. There is no inheriting the "divine right of kings" -- the Constitution is an explicit rejection of the very notion of any divine right of kings.

"Who is being limited in how they provide for their safety and happiness?"

The government.

"Why doesn't he just declare himself El Presidente?"

Because the constitution doesn't allow that.
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John Fenderson (profile), 2 Jun 2014 @ 8:30am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The First amendment is part of the bill of rights is part of the Constitution. It is not an error to refer to the entire body as "the Constitution".
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Anonymous Coward, 2 Jun 2014 @ 1:05pm

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It is a classic error, sometimes known as the �fallacy of composition�, to abstract from the attributes of parts to generalized statements regarding the whole�while neglecting the structure created through the arrangement of those parts.

Consider Heart of Atlanta Motel (1964): Were we to accept the proposition that the state action requirement read into the Fourteenth Amendment in The Civil Rights Cases controls the interpretation of the Article I, Section 8 Commerce Clause, then Heart of Atlanta Motel was wrongly decided.

Was that case wrongly decided?
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Anonymous, 2 Jun 2014 @ 3:00pm

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Yyyyeahhhh. And how successful has the constitution been in stopping the government from doing whatever the heck it wants to do?
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Karl (profile), 2 Jun 2014 @ 6:37pm

Stopped paying, or never paid?
I've actually been looking at this issue, and it's not entirely clear to me that they stopped paying those royalties.

What is clear is that they don't report the songs to SoundExchange. Whether that means that their royalty rates dropped is another matter. It is possible that they simply pay the same lump sum, and it just doesn't get distributed by SoundExchange.

This is the closest I could find to a description of what went on behind the scenes. It has to do with Sirius XM, not Pandora, but it's entirely possible that it works the same with both:
Until two years ago, Sirius regularly sent SoundExchange a log of every song it played � including songs recorded before 1972 - along with a lump sum payment the royalties it owed. The non-itemized sum didn't include pre-1972 recordings, but since the payment wasn't broken down per song, SoundExchange for years distributed the royalties to all the artists on Sirius�s playlists, including the legacy artists, according to a person familiar with the matter.

But in 2011 SoundExchange asked Sirius to start reporting exactly what it was paying for, and since then Sirius has stopped reporting pre-1972 songs, this person said, so SoundExchange ceased paying out on them.
- Turtles and Sirius XM: Not Happy Together

Any more info, from anyone here, would be greatly appreciated.
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John Fenderson (profile), 3 Jun 2014 @ 8:47am

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Pretty successful, actually. Seriously -- check out history. What the constitution doesn't do is allow course corrections to happen as quickly as people would like. But that's a feature, not a bug.
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John Fenderson (profile), 3 Jun 2014 @ 8:49am

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Instead of diving off into rhetorical weeds, why not address what it is that I said that you believe is incorrect?
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Karl (profile), 3 Jun 2014 @ 8:51pm

Re: Artist Unions
Sorry, checking the comments here and saw this for the first time:

Why don't the artists unionize?

They do. In the case of studio and performing musicians, it's the American Federation of Musicians. (Radio and TV musicians can join their acting bretheren in SAG-AFTRA.)

The thing is, the unions only have the power to negotiate work-for-hire deals. They don't handle the contracts between record labels and artists.

This is why you will generally make a lot more money if you're a work-for-hire musician... even though you don't hold the copyright on your work.
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Anonymous Coward, 3 Jun 2014 @ 10:17pm

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� incorrect?

You should be aware that contemporary state action doctrine has been described as �incoherent� and �a mess.�
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Anonymous, 16 Dec 2014 @ 9:49am

Gross mischaracterization
Mike,

While I do agree that the RESPECT Act is hypocritical for not going farther, when most people can agree that federalizing pre-1972 sound recordings make sense, I want to point out a gross mischaracterization you make.

In the second paragraph, you start off with "As we've been reporting, there's been an ongoing legal fight over how to handle pre-1972 sound recordings, because they are technically not covered under federal copyright law. This is because, back in 1909, Congress explicitly excluded sound recordings from the Copyright Act, noting that they didn't believe the Constitution allowed copyright to cover sound recordings (think about that for a second...)"

This is not true at all, and it is downright irresponsible for you to spew such false information to push your agenda. Congress didn't "explicitly exclude sound recordings" from the 1909 Act because they never even considered sound recordings. The technology was still very new when the legislation was drafted, and there was no real recording industry yet, so at the time, there was no need to protect sound recordings. In fact, a year before enactment of the 1909 Act, the Supreme Court in White-Smith Publishing Co. v. Apollo Co. considered the question of whether a manufacturer of piano rolls infringed the rights of the publisher of a musical composition (not a sound recording right, because at the time, sound was not considered tangible). The Supreme Court concluded that there was no infringement because piano rolls were simply components of a machine, and musical sounds "which reach us through the sense of hearing" are not copies.

In response, Congress actually overruled the Supreme Court decision by specifically AMENDING the 1909 Act to protected records and piano rolls as "copies" of the musical composition. This was in part because the sale of piano rolls was detracting from the sale of the sheet music. The sound recording right was added in 1971, in response to the fact that technology now made it easier to pirate recordings (think about that for a second...). In 1973, the Supreme Court held in Goldstein v. California that this federal right did not preempt a California criminal piracy law because the interests of state and federal copyright were different. However, the 1976 Act partially overturned this by preempting all state copyright law. Yet, for whatever reason, the Act had a carve-out for all sound recordings fixed prior to Feb. 15, 1972. The carve-out was put in on recommendation by the DOJ to make sure that the 1976 Act wouldn't be read to abrogate state criminal anti-piracy laws (which were seen as similar, but separate from copyright law). It's still not clear why Congress didn't just federalize pre-1972 recordings when the 1976 Act was passed, and thus bring them all under federal protection anyways, which is part of the reason why it just makes sense to federalize pre-1972 recordings already, and why I do agree with you that the RESPECT Act is hypocritical.

However, when you say that Congress specifically excluded sound recordings from the 1909 Act, believing it to be unconstitutional, when in reality, there just wasn't an industry yet for sound recordings, you make yourself sound extremely ignorant, uninformed, biased, and willing to say whatever you need to say, changing history if you have to in order to push your agenda.
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Gwiz (profile), 16 Dec 2014 @ 10:42am

Re: Gross mischaracterization
However, when you say that Congress specifically excluded sound recordings from the 1909 Act, believing it to be unconstitutional, when in reality, there just wasn't an industry yet for sound recordings, you make yourself sound extremely ignorant, uninformed, biased, and willing to say whatever you need to say, changing history if you have to in order to push your agenda.

I think you are the one attempting to revise history here. According to Peter Jaszi's analysis Mike is spot on:
Although Congress subjected federal copyright protection to an overhaul by enacting the 1909 Copyright Act, it still failed to grant statutory copyright protection to sound recordings. Despite efforts by some members of Congress to raise the issue of sound recordings, the final bill declined to extend protection. Indeed, the report released with the Copyright Act expressly stated that Congress did not intend to protect sound recordings: "It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices." According to one commentator, Congress had two principal concerns about sound recordings, leading it to decline to protect them. First, Congress wondered about the constitutional validity of such protection. The Constitution allows Congress to protect "writings," and Congress was uncertain as to whether a sound recording could constitute a writing. Second, Congress worried that allowing producers to exclusively control both the musical notation and the sound recording could lead to the creation of a music monopoly.

Source (reference sources are cited in original)
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Anonymous, 16 Dec 2014 @ 12:22pm

Re: Re: Gross mischaracterization
Right, but again you're completely oversimplifying the history.

The actual quote from the report is “It is not the intention of the committee to extend the right of copyright to the MECHANICAL REPRODUCTIONS themselves, but only to give the composer or copyright proprietor the control, in accordance with the provisions of the bill, of the manufacture and use of such devices.”

You have to realize the historical context - at the time, Congress was not looking at it as a separate right to a sound recording, they were looking at it as a right for the owner of the composition to control copies in the form of recordings. There's a huge difference here. Because at the time, the most popular "mechanical reproduction" was the piano roll, which the Supreme Court had already held was not a reproduction at all. They likened a piano roll to, at the most, possibly a public performance, but that was not the issue in that case. The Court held that perforated rolls were "parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination."

So when Congress overruled this by adding protection for piano rolls, they added a compulsory license, to alleviate concerns that music publishers would have a monopoly. Fast-forward several decades, and the sound recording right is born. This is a separate copyright in the recording itself, and is fully compliant with both the 1976 Act (fixed in a tangible medium of expression), and the constitution.

Again, this was a right to control mechanical reproductions, NOT the sound recording right. Read the actual text of the report, and check out the primary source, as opposed to a secondary source like Peter Jaszi, who, admittedly is a great authority in copyright law, but also tends to have certain views on the law just like everyone else. But thank you for posting this either way, it was interesting. The problem is that Mike has such a clear agenda that he does not even hesitate to oversimplify history and build strawmen to promote that agenda. Mike is basically the Glenn Beck of Silicon Valley.
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Gwiz (profile), 16 Dec 2014 @ 1:30pm

Re: Re: Re: Gross mischaracterization
Ok, I'm getting the gist of your argument here.

You're saying that because the piano player mechanically creates a performance, as opposed to being a recording of a performance, there is difference. I can see your point, but I'm not sure the difference is significant enough to warrant your attacks on Mike.

The designed purpose of a piano roll and a vinyl record are basically the same - to bring popular music to the masses without actually having the musicians present.

There is also the part about Congress's concern that musical reproductions (which would include both the piano roll and sound recordings, IMHO) are not "writings" and therefore copyright on them wouldn't be Constitutional as a reason for not covering them.
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Anonymous, 17 Dec 2014 @ 7:34am

Re: Re: Re: Gross mischaracterization
Ok, to be fair I did not read Jaszi's article about it, and you threw me off, so as a rational internet-goer, I will admit that I may have come off strong :)

Two things though:

First, there is a huge difference between piano rolls, which WERE the "sound recordings" of the time, and sound recordings that we know today. Because, one is literally just a set of instructions to tell a piano to play a composition, and the other is an original performance, which has been fixed to a tangible medium. There is authorship that goes into a sound recording, whereby there is not necessarily any new authorship going into a piano roll (it's much more mechanical, as the Supreme Court highlighted). At the time, sheet music dominated (ironically, piano rolls, then the phonograph, and by extension later the entire recording industry, was seen as a disruptive technology). The point of copyright law is to incentivize the investment in, creation of, and dissemination of original works of authorship, so naturally, if these incentives are undermined, Congress should at the very least step in to inquire what might need to be done. If piano rolls were not protected, and were completely taking over the market for sheet music, it made sense that the songwriters and publishers should have some control, otherwise you have a situation where an industry is created solely to profit off of a product that someone else invested the time, energy, and money to create (see ad-based piracy). Now with rights there had to be some type of balance, which is where the compulsory license came from, which evolved into the mechanical license. It's not nearly as vital today as it was back then, but clearly there are some important reasons why Congress very logically ensured BOTH that music publishers incentives are still in place, and that music publishers could not completely have a hold over the market. Because you're letting the market evolve without killing the lifeblood of that market. It's the same reason that Congress is trying to take such an aggressive stance on piracy, but through the DMCA, has allowed legitimate content-hosting sites like YouTube to flourish, even where there is some piracy.

Second, what was the point of Mike mentioning this in the first place? Do you think he did his legal research and looked at the H.R. Rep. before he reported? He's obviously not a strict constructionist, otherwise, he wouldn't believe in such strong privacy rights. So why nitpick based on "writing"? How is it relevant to the point of his article in any way? Does he suggest that motion pictures, which are recorded to rolls of film in a similar manner that sound recordings are recorded, should also not merit protection? What about choreography that was fixed through a video recording? What about photographs, which are also just a form of recording, rather than a form of "writing" (very much protected by 1909, btw). Just like the term "author," the term "writing" can clearly be interpreted in a way that is not extremely narrow. Personally, I just think Mike takes what little information he has to support his own agenda. He'd rather plant in readers' minds the idea that copyright is pointless and irrational, which many readers agree with because they're neither copyright lawyers nor professionals working in the creative industries that have a grasp on why we have copyright laws. Instead, they have this not uncommon sentiment that "information should be free" and that the only copyright owners are big corporations (when in reality, most are sole proprietors) who are trying to stifle innovation, break the internet, and censor everyone when in reality, they're ultimately trying to recoup on their investments just like any other legitimate business. Obviously there are areas of copyright law that need reform, but rather than engage in meaningful dialogue, Mike uses a tone that simply degrades copyright law. This only serves to further polarize what are already opposing interests in the debate. And I think that does a major disservice.
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Gwiz (profile), 17 Dec 2014 @ 1:12pm

Re: Re: Re: Re: Gross mischaracterization
Obviously there are areas of copyright law that need reform, but rather than engage in meaningful dialogue, Mike uses a tone that simply degrades copyright law. This only serves to further polarize what are already opposing interests in the debate. And I think that does a major disservice.

I've read Mike's writings for awhile now and I think that he, like the majority of those who comment here (including me), would be classified as a "Copyright Minimalists" using Karl's (another long-time commenter here) classifications:

http://tritonester.wordpress.com/2014/09/21/normative-views-on-copyright/

A Copyright Minimalist doesn't seek to end copyright, but to bring it back in-line with what Framers had in mind when they wrote the Copyright Clause.

As with all things, change require compromise, so when entering the debate against Copyright Maximalists (whose livelihoods usually depend on copyright) a Minimalist must push to the extreme so the the final compromise ends up somewhere in the middle.

Since I don't speak for Mike, nor can I read his mind, I don't really know this for sure, but that's the way it looks to me.
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