Is The Music Modernization Act Ready For Prime Time?

The higher ups are, it seems, eager to rush the Music Modernization Act through the U.S. Congress as quickly as possible, with little opportunity for public comment. Chris Castle poignantly asks, why?

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Guest post by Chris Castle of Music Technology Policy

The powers that be seem to be very, very interested in jamming the Music Modernization Act through Congress with as little public commentary as possible.  Casual polling from various mailing lists is being presented as “X thousand songwriters are on the bandwagon for MMA”, but when you look at the various “petitions” that were “signed” by unknown persons, doubts start to surface on just how informed the consent really was.

First, if you read the actual cover letter solicitation that went to songwriters, it was rare that the information provided was more than glittering generalities strung together.  At best, individual cover letters from the sending organization seeking to rally its membership narrowly emphasized the parts of the bill that affected its membership most directly, or that the particular org’s advocacy people wanted to get credit for.  Then there was a 50 words or less description of the rest of the 100 page bill.  I found only one organization that actually sent a link to the bill (which is understandable because most of the petition solicitations I saw were sent before a public copy of the bill was available.)

This lack of information may explain why there was a less than 3% response rate based on public estimates of membership totals.  Your average Etsy newsletter probably has a higher response rate than a solicitation to have your name used to justify passing the biggest change to the Copyright Act since the DMCA.

Reading through the MMA, there are many rather obvious mistakes in drafting that one would expect in a situation where there was a lot of inbred commentary, secret drafting sessions and apparently a greater concern with getting it fast than getting it right.  Let’s take the collective’s board of directors for an example.  Now remember–the formation of the actual collective as a non-profit organization will have to be done under state law in order to qualify to be the collective.

My read on the board of directors section of MMA is that the government can decide on how a winner must be structured in order for the government to pick the winner (which frankly is rather pre-determined in the MMA), but even so, the organization will have to comply with state business organization laws which is how it will be formed.

Here’s the description of the board of directors in the MMA based on the posted draft:

The mechanical licensing collective shall have a board of directors consisting of 10 voting members and 3 nonvoting members, as follows:

‘‘(I) Eight voting members shall be music publishers to which songwriters have assigned exclusive rights of reproduction and distribution of musical works

That total has changed to 14 according to news reports.  So as anyone who formed a club for their treehouse can tell you, been in a band, or was a first-year corporate associate or an actual songwriter who does cowrites, having an even number of votes on anything is not a good idea and can lead to ties.  Just sayin’.

But the real problem is beyond the ill-advised to the potentially illegal, or at least not enforceable under state law.  The 50 states have a preference for sentient beings populating boards of directors in their corporations, including and maybe especially nonprofits.  According to this draft, the board consists of “music publishers”.   I know what they probably meant, but it’s not what they said.  Plus, board composition is something that is usually handled in bylaws or by a voting agreement.

This would be an easy fix, just say Publisher A, B, C, D, E, F, G and H (by name) are chosen by the government to be entitled to board seats, and they shall each designate a natural person (legalese for sentient being) to represent them on the board.  Of course, changing those allocations would require an act of Congress, like if Pub D bought Pub H, for example.

Another inexplicable lapse is in the direction to the Register of Copyrights of which winner the Register is to select and which loser the Register is to reject for both the collective and the digital licensee coordinator (who represents Big Tech), both of whom get an antitrust exemption.

The criteria in each case is “endorsed by and enjoys substantial support from [copyright owners of musical works/digital music providers] that together represent the greatest share of the [licensor/licensee] market…”  These are rather meaningless words and are phrased in the passive voice, that Washington favorite (you know, the old standby “Mistakes were made”).  What is this based on?  All the arguments over market share that take place every year?  Based on songs or revenue, etc., etc.  And who gets to decide?

These are fundamental mistakes and are the kinds of screwups that smart people make when they are under pressure.  I just don’t understand what the big rush is to make the biggest change to the Copyright Act since the DMCA.

This legislation will affect the lives of every songwriter in the world for every song ever written or that ever will be written.   The last compulsory license was created by the government in 1909, so we have every reason to believe that this legislation could last one hundred years.  Or said another way, long after the Spotify IPO.

We should also be clear that if you thought that this legislation was getting the government out of the songwriter business, you need to buy a vowel.  The government is more involved than ever before.  We are way past broccoli now.

If it takes more thought and more time, then it should. The bill is fundamentally not ready for prime time and it really needs to be.