Songwriters vs Big Tech: Has The Tide Turned? [David Israelite]

[UPDATED] In this guest post, National Music Publishers Association head David Israelite explores how social media has shifted public opinion toward the songwriters and music publishers in their battles with Spotify, YouTube and other music services.

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By David Israelite of the National Music Publishers Association [NMPA], This first appeared on Variety.

Since the dawn of the digital revolution — when suddenly the value of songs was an afterthought to the ease with which users could access them — creators’ livelihoods have been on a steady decline. From Google’s YouTube to Spotify, these tech giants’ growing power seemed impossible to combat and any effort to do so was vilified as censorship and a threat to the tech boom that was remaking America.

This hit a fever pitch in 2011 when lobbying campaigns against the Stop Online Piracy Act (SOPA) firmly pitted a free and open Internet against music creators.  While the bill was certainly flawed, the fear campaign run by big tech set creators back significantly. The “Internet” won in convincing fashion, and many in the creative community thought we were permanently trapped in a losing battle against tech giants with billion-dollar valuations and even bigger platforms to crush the individual small-business songwriters who made much of the raw material on which they built their empires.

These individual creators had almost no bargaining power and an even smaller voice as the people firmly behind the music. And while the issues SOPA was confronting were very different than the issues creators face today, this was a new low for those looking to be seen as business partners with big tech.

Then something interesting happened.

Suddenly, social media — often hosted by the same companies looking to take advantage of songwriters — allowed hard-working creatives to socialize, promote their work and expose how egregious their payments from streaming had become. Superstars who started as songwriters, like Taylor Swift, weighed in to remind everyone that once the songwriters dry up due to fractions-of-pennies payments, there will be no more music-filled apps, no festivals to hashtag and no more streaming companies offering endless music for almost nothing.

These voices propelled change. The first milestone was a trial in Washington — about as far from the music meccas of Los Angeles and Nashville as one can get. The Copyright Royalty Board (CRB) heard months of testimony — including that of hard-working songwriters — and in a decisive decision, determined that songwriters deserved a raise. This meant more than just more money — this was a bellwether for what music creators could accomplish when they spoke and worked together.

The next test came in the form of the Music Modernization Act. The idea that laws created in 1909 could withstand the iPhone, much less music apps that give someone access to every song recorded in a matter of minutes for mere dollars, is laughable. However, the idea that the digital companies would ever come to the table to work together on legislation was even more far-fetched. The reason they ultimately agreed to attempt reforming the law had nothing to do with wanting to pay more — financially they were benefitting from the outdated one — but it had everything to do with songwriters knowing their power and knowing they had been legally taken advantage of for years.

A string of settlements and lawsuits forced the biggest streaming companies in the world to come to Congress and work alongside creators to find a solution: essentially a raise for songwriters and no more unpaid money in exchange for a formalized blanket license. This deal was unfathomable 10 years ago, but today, it speaks to the fact that creators are no longer being sidelined when it comes to streaming — they are at the center of the conversation.

This shift in the balance of power isn’t limited to the United States. Just last month, The European Union (EU) backed what’s been labeled “Article 13” which essentially tells tech companies they must take some responsibility for distributing infringing content. Until now, the burden was squarely on the side of individual artists and songwriters to police endless content online and request things be taken down. While massive tech companies have fear-mongered for months saying that this will put an end to memes, gifs, and all sorts of creative expression online, as the BBC put it, “it means they would need to apply filters to content before it is uploaded,” something tech companies are perfectly capable of doing and should have been doing all along. Don’t worry — memes and gifs are still perfectly legal, and the liability is not placed on the people, it’s on the platforms.

What’s astounding about this progress is the imbalance of influence is so dramatic.  It is remarkable that anyone could stand up to the likes of Google, Amazon, Spotify and the other tech titans who amass more power every day. However, it proves that while these companies may harness data, music continues to strike a nerve that cannot be ignored. People don’t just care about the music that moves them, consumers also care about the people who create it, and everyone from governments to Gen Z are no longer buying the notion that tech companies must operate unchecked at the expense of musicians.

Right now, Spotify is testing this theory. The aforementioned raise given to writers by the Copyright Royalty Board recently went into effect, but almost immediately Spotify, along with Amazon, Google and Pandora, appealed the rate increase to try to stop it. Spotify went as far as to try to convince writers it would be good for them — while failing to explain why. This lawsuit means that the increases that songwriters so deserve are in jeopardy, and songwriters must recognize that the progress that has been made is fragile and the battle is not yet won.

Spotify’s move was particularly troubling as it has engaged in a significant public relations campaign targeting songwriters — labeling them “Secret Geniuses,” never mind the backhanded compliment — it spent millions on billboards and parties to promote the idea that it valued what songwriters created. However, while courtrooms in Washington aren’t as visible as Grammy parties, what Spotify is doing with its right hand here in D.C. is much more important than the PR it has done with its left. If successful, its lawsuit could set songwriters back decades.

It’s important to note that the CRB’s decision which Spotify is appealing also showed that paying songwriters more doesn’t mean users have to spend more. Today, more people pay to stream music than ever, but songwriters aren’t seeing that uptick, and the court’s decision said services like Spotify had to change its business models to give songwriters more of the money the platforms were keeping for themselves. Scare tactics used by certain platforms that imply costs will go up for consumers are just more misdirection.

Make no mistake, music creators need interactive streaming services as partners. While they could do better, these platforms incentivize paying for music, something many thought was a bygone notion. But we must be careful to avoid Stockholm Syndrome and accept partners who underpay and challenge the value of what we create behind cloak of a courtroom.

If big tech is smart, it will look at the last few years and realize that the balance of power and public opinion are shifting. Today music creators are a force to be reckoned with and they must collaborate with creators instead of bullying them. Streaming’s future depends on it, and it won’t be at our expense much longer.

David Israelite is the President and CEO of the National Music Publishers’ Association (NMPA). Founded in 1917, NMPA is the trade association representing American music publishers and their songwriting partners.