Whither Copyright In The Time of Trump?

Videos by American Songwriter

Videos by American Songwriter

 

illustration by Courtney Spencer

When it comes to strange political bedfellows, the notion of Donald Trump warming up the sheets for music-industry creatives sounds about as plausible as an eight-track tape renaissance. A media-bashing conservative who has vowed to rein in the First Amendment, dissed Hollywood’s finest and suffered rejection by nearly every artist asked to play his inauguration? Who decreed that for every new federal regulation issued, two must be revoked? That Donald Trump? How could he morph into a caped crusader for stronger copyright protections and more equitable pay for content creators?

Conventional wisdom suggests that sounds more like satire from a cartoonist’s pen — or Saturday Night Live scriptwriters — than anything approaching reality. Yet artist rights advocates express optimism regarding prospects for action on intellectual property issues affecting songwriters, performers, record producers and other content creators. They’re hoping Trump’s entrepreneurial bent and lack of allegiance to Silicon Valley might make him sympathetic to those seeking fair pay for fair play.

“We at the Recording Academy are positive about working with the Trump administration,” says Austin-based singer-songwriter Kevin Russell, a.k.a. Shinyribs, a member of the Recording Academy’s Texas Chapter Board and co-chair of its advocacy committee. “We think he has a greater appreciation for the value of intellectual property. As well, he has a bit of an axe to grind against Big Data and Big Tech. So that may benefit us.”

That axe would grind specifically against Facebook, Google/YouTube, Amazon and other tech giants who pledged their allegiance to his opponent in the presidential race. And if Trump’s first weeks in office have confirmed anything, it’s his ability to hold grudges. Amazon founder Jeff Bezos’ ownership of The Washington Post certainly won’t score him presidential points, either.

But David Israelite, president and CEO of the National Music Publishers Association, sidesteps that rationale while suggesting Trump’s real estate background might help him appreciate the rights of property holders as translated from the tangible (the “dirt,” as developers fondly call their land) to the intangible: music as data streams.

“That would be a start for a conversation about how a songwriter writing a song and creating a copyright is no different than when President Trump builds a building,” Israelite explains. “The idea that the government would come in and tell you the value of what you’ve created is completely contrary to the very fabric of what business people believe in. And so Mr. Trump being told by the government you can only sell a building for what three judges [the Copyright Royalty Board] tell you it’s worth should strike him as just as unfair as how a songwriter is told what their song is worth.”

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That’s the hope, anyway. Jonathan Taplin, author of the April release Move Fast And Break Things: How Facebook, Google And Amazon Cornered Culture And Undermined Democracy, isn’t swayed. Still, he offers, “If Donald Trump could be convinced that he is losing a lot of money by people pirating his books and audio books, he might actually stand up for intellectual property.”

Taplin, director emeritus of the University of Southern California’s Annenberg Innovation Lab, previously tour-managed Bob Dylan and the Band, executive-produced The Last Waltz and other Martin Scorsese films and co-founded the pioneering video-on-demand service Intertainer. He convincingly argues that Amazon, Facebook and Google are monopolies, citing Google’s 88 percent market share in online search and search advertising, Amazon’s 70 percent share of eBook sales and Facebook’s 77 percent share in mobile social media. He doesn’t foresee them undergoing any more regulatory scrutiny than they did during President Obama’s administration — which, he says, gave them a free ride.

Nashville Songwriters Association International Executive Director Bart Herbison is less skeptical, though he isn’t exactly expecting a snugglefest.

“Look, it’s government,” he says. “Until something’s done, I’ve learned to be cautious.” But he expresses “hope for optimism on a number of fronts,” including, he says, the fact that Trump’s attorney general, former Senator Jeff Sessions (R-Ala.), “has a track record of being historically friendly to songwriters.” (A search of Sessions’ U.S. Senate voting record did not confirm that, though it did show a 1999 “no” vote on National Endowment for the Arts funding.)

Even before the Internet was a thing, copyright law has rarely been “friendly to songwriters” — though for decades, many were able to make good livings from royalties on record sales. But with high-speed data transmission and digitized access to virtually any recorded work pulling consumers away from purchases and toward streaming, coupled with microscopic per-play pay formulas — or no pay at all — they’d starve today. When Rosanne Cash testified in 2014 before the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and Internet Music Licensing as part of a four-year copyright reform study, she reported she was paid $114 for an 18-month period in which her songs streamed nearly 600,000 times.

“I am not a lawyer or a politician or a policy wonk, and I couldn’t begin to parse the incredibly complex, outdated, pre-Internet laws regarding licensing and copyrights,” she testified, “but I can tell you that I see young musicians give up their dreams every single day because they cannot make a living; they cannot survive doing the thing they most love, the thing they just might be on the planet to do.”

During a 2016 South By Southwest panel about copyright issues, Russell noted his interest — and activism — took root after he learned that a cover of Snoop Dogg’s “Gin And Juice” that he’d recorded with his former band, the Gourds, had become one of Napster’s most downloaded songs ever, for which he earned not one dime.

In a January 30 letter to the House subcommittee, David Lowery of Cracker and Camper Van Beethoven, writing on behalf of the grassroots group Musicians Action, noted artists are further hamstrung by their inability to use the courts when the rights they do have are violated.

“Our rights are being summarily denied due to a legal system that places the burden of infringement on us and provides us with no realistic mechanisms to address it,” he wrote. Observing that most artists couldn’t possibly afford to sue, he added, “What is most egregious is that the ineffective notice and takedown procedures and the special privilege ‘safe harbor’ protections for corporate hosting platforms … actually encourage mass infringement of our works.”

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The Digital Millennium Copyright Act’s “safe harbor” provision was designed to protect once-fledgling Internet innovators from infringement liability, providing they take down contested material when notified. But according to Taplin, it was conceived for an era of 24KB modems and 5-minute song downloads. “Last year, Google had a billion takedown notices,” he adds. 

Though songwriters and platform providers can negotiate so-called synchronization rights (for music used with video) in the free market, Israelite notes the biggies have been able to get away with using songs without negotiating their true value, and the previous administration offered no support.

Actually, he called that administration “hostile.”

Taplin agrees. “I’m saddened by it because I liked a lot of what Obama did,” he admits. “But as far as creative rights, whatever Google wanted, Google got … He paid not one bit of attention to artists’ rights.”

Herbison is more diplomatic. “They were very pro-Internet,” he says. “That really goes back 30 years. When the Internet became something real, a lot of academia confused free dissemination of information with free content. I would say Mr. Obama was one of those. He was a student of Lawrence Lessig, who was the chief proponent of that in several law schools across the U.S., and that philosophy carried out through the Obama administration.”

An event last fall that seemingly confirmed their take ironically might have precipitated one of the most positive copyright reform proposals since the U.S. Copyright Office was established in 1870. Barely a month after Carla Hayden became the 14th Librarian of Congress in September, she removed then-Register of Copyrights Maria Pallante, a respected, evenhanded administrator well versed in copyright complexities and the music industry’s concerns. Because the Copyright Office is part of the Library of Congress, there’s no oversight for such decisions.

According to Taplin, “[Pallante] had reached the conclusion that the Digital Millennium Copyright Act needed some fundamental changes. She believed that the safe-harbor provisions, which keep musicians or songwriters — anybody — from suing YouTube for putting up all their content for free, were outmoded.”

Taplin says Eric Schmidt, executive CEO of Google parent Alphabet, “had far more access to the White House than any CEO in America by a factor of 10. And essentially, what he wanted, he got.” He reportedly had her removed because she opposed the proposed “set-top box rule,” which, according to Forbes magazine, “would have used a statute designed to promote competition among cable television set-top boxes as a vehicle to force cable companies to give tech companies like Google free access to the raw video and data feeds that cable companies provide to their customers.”

Congress was not happy with her removal, Herbison says. Meanwhile, toward the end of 2016, the Judiciary Committee wrapped its research and sought stakeholder input through January 31 for its first proposal: making the Copyright Office its own entity under the Legislative branch, with a register of copyrights appointed through the same approval process as other senior administrators. Seventy-four letters of comment were filed; only library groups opposed making the Copyright Office autonomous.

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Still, Trump is killing agencies, not starting new ones. And other “fair play fair pay” issues, including performance fees for terrestrial radio airplay, are likely to remain unresolved — though Politico’s Li Zhou reported on February 2 that House Judiciary Committee Chairman Bob Goodlatte (R-Va.) told a National Press Club audience that radio royalties for recording artists and labels, and increased compensation for songwriters, are two areas of potential activity. Though he stated interest in music licensing reform, she quoted him remarking, “I don’t want to say, ‘This is going to happen,’ because it really depends upon bringing people to the table who are willing to discuss reforms and being willing to give a little bit, because this is an area that is very hotly contested.”

With the Judiciary’s other concerns, including immigration, Israelite assures, “I can promise you that copyright is not among the top five or six things they’re gonna look at right now. So we have to see where we fit in, what they’re going to do and how much political will they’re willing to spend. Let’s make no mistake. It’s a big fight, because it’s a very powerful coalition of interests on the other side that profits from not having to pay songwriters fairly. And that’s why you need a unified music industry, and you need a government that respects property rights.”

Indeed. Herbison points out, “The government has us under rules from the era of John Philip Sousa. That makes no sense … Our laws were promulgated to govern player piano rolls. Get out of our way.”

He’s convinced if content creators and carriers were allowed to negotiate freely using the willing buyer-willing seller rate standard, the market would self-balance and all parties would prosper.

“We’re one of the few industries that have a federally mandated maximum wage,” Herbison says. “The government doesn’t understand what they’ve done to us. They’ve cobbled this crap together over a hundred years and they need to get out of our business.”

A comprehensive database of copyrighted works and rights-holders, another Judiciary Committee proposal, should help facilitate an agreement that YouTube and the NMPA announced in December for distribution of royalties to previously unknown copyright holders. (YouTube declined to add further comment for this story and the other platform providers did not respond.) In late December, Facebook also announced plans to develop a copyright ID system like YouTube’s new content ID program — perhaps in response to Israelite’s chastising October op-ed piece in Billboard, in which he noted the company has 170 million users and is valued at $350 billion.

But Taplin is not convinced that the tech giants are truly committed to fair play/fair pay if it means reducing their massive profit margins.

“As long as the big three technology monopolies have the free rein to do whatever they want, [with] no changes in the safe harbor part of the digital millennium copyright act and no changes in the antitrust regulation regime, nothing will really change,” he says.

Well, as Israelite notes, “Copyright legislation generally happens once every generation or two. So these are hard, long fights.”

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