Harry Fox Agency Unfairly Blamed As MMA Debate Rages [Chris Castle]

In this piece Chris Castle defends the Harry Fox Agency which has, of late, been heavily maligned as debates over the Music Modernization Act Continue to rage on. Here he looks at the facts and explores alternative solutions to simply ganging up on the HFA.

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Guest post by Chris Castle of Music Tech Solutions

When you’ve been around as long as the Harry Fox Agency, you’re going to make some enemies, screw some things up, over react and over reach.  You’re also going to do a lot of things right, make some friends and do some good.  But most of all, you’re going to be the whipping boy for your client’s enemies, screwups, overreacting and over reaching.

From one whipping boy to another, that’s just not fair and anyone who has ever tried to do anything really hard with data in the music business knows it.  So pish and pshaw on those who gang up on HFA in the debate on the Music Modernization Act.  Let’s look at the facts.

When HFA developed the first digital download mechanical license in the late 1990s, the current crop of critics were nowhere to be seen.  Was it a perfect solution?  Not entirely, no.  But it did work and business got done and songwriters made money.  We were all feeling our way along the digital precipice and making it up as we went along.

I will go out on a limb here and say that if it weren’t for people like HFA’s Ed Murphy, it’s entirely possible that there would be no “streaming mechanical” at all.  That would be the same Ed Murphy who stepped up and licensed Napster’s effort at a p2p subscription service in 2001.  Again, the current crop of critics were nowhere to be seen.

Here’s another fact that you won’t hear about.  When it came time to mete out justice to a massive infringer record company who had been ripping off Texas singer-songwriters for years and years, it was HFA who stood with us.  Not because they made money, not because there was some pot of gold for them–there wasn’t and they didn’t.

They did it because it was the right thing to do.

They may not be choir boys, but they have their moments.  When we really needed them, they showed up for Texas songwriters.  And that’s how we measure friendship in my part of the world.

HFA is often blamed for the Spotify meltdown which in its own way led directly to the controversial safe harbor in the Music Modernization Act.  You can tell that’s true because the MMA’s proponents never talk about the safe harbor except to say that they negotiated away the rights of all the world’s songwriters in some “grand bargain,” the grandness of which elludes me almost as much as the legitimacy of consent.

The fact that Spotify chose to go forward without all the rights necessary to do business is not HFA’s fault.  It is Spotify’s fault.  If Spotify has an issue with HFA, that’s between them.  Ultimately, Spotify knew what it was doing and I seriously, seriously doubt that HFA told them otherwise.  I won’t believe it without both pictures and tapes.

Another fact is that the clearance problems that Spotify and some other HFA clients have were set in motion well before SESAC’s acquisition of HFA in 2015.   If anything, HFA’s been doing it better and cleaner after the acquisition in my opinion.  So if there is blame to go around, then the blame should go all the way around.

You may hear some pretty nasty comments about HFA now that its parent’s parent company is lobbying for a seat at the table on the Music Modernization Act.  Pay them no mind.  If SESAC and HFA had been dealt in at the beginning of the MMA process–which it sounds like they were not along with a lot of other people who should have been there, too–then there’d be some actual evidence that they were reneging on a commitment instead of no evidence that a commitment was ever made.  If you’re going to bet the farm, don’t take silence as consent.

Bashing HFA won’t fix the failure to include them, and I for one think it’s really unfair.  The solution isn’t dealing them out, the solution is embracing SESAC and HFA by respecting their efforts to make MMA a better bill that will have a greater chance of flourishing.