A New Dark Age: Blanket Licenses for Everything Based On MMA [CHRIS CASTLE]

Here Chris Castle breaks down his view of the looming threat of comprehensive blanket licensing based on the Music Modernization Act, what it would mean for music, and who is trying to push the legislation through.

Guest post by Chris Castle of Music Technology Policy

Cory Doctorow has a post on the EFF’s Deep Thoughts…sorry…Deep Links blog that proposes “A Plan to Pay Artists.”  MTP readers probably need no further information to know what’s coming next without even reading Mr. Doctorow’s post.  It’s the old ISP licensing hash rehashed and served up as if nothing happened–but using The MLC as a justification.

For those who don’t know the name, Cory Doctorow is an author who has been a leading voice in support of Google’s agenda in his native Canada as well as Europe and the U.S.  Do I know he is on the payroll?  No. But after a while…

And we certainly know that the Electronic Frontier Foundation is deep, deep in Google’s pocket having picked up a cool $1,000,000 from Google in a cy pres award (as well as another $500,000 from Facebook)–and that’s the money we know about.  This is not to even go into the personal connections between EFF lawyers and Google lawyers.

I will also acknowledge that Mr. Doctorow did something to a friend of mine in the pre-#MeToo era a few years ago that I find to be utterly vile.  He posted an X ray of his hip area with a very small redaction along with the words “This is for you” following a public spat with her.  I confess that after that outrage I have failed him in fellowship and forgiveness for which I must atone.  But not yet.  I still would like to hear how this effrontery got explained to children.

Having disclosed my bias, his idea for “A Plan to Pay Artists” should make it clear why the world is not beating a path to either his door or the EFF’s door when it comes to artist rights.  But it does reveal Big Tech’s strategy behind their embrace of the Music Modernization Act.  Here’s the meat of it (meat as in roadkill):

The Music Modernization Act, passed in 2018, was a step in the right direction. It created a new blanket license for musical compositions, covering downloads and interactive streaming. Let’s build on that momentum and create a complimentary license for sound recordings.

A Blanket License for the Internet

In broad strokes, here’s how a robust Internet license for sound recordings would work. If you want to offer music to the public—if you want to start a streaming site, or let users exchange music, or share videos with music clips in them like TikTok users do—all you need to do is set up an account with a rights clearinghouse, called a “collecting society.”

You pay the collecting society a monthly license fee that goes up with the number of users you have. If you have one user and Facebook has 2.5 billion users, then your license fee is 1/2,500,000,000 of Facebook’s fee.

You also allow the collecting society to audit the use of music on your platform. They’ll use statistically rigorous sampling methods to assemble an accurate picture of which music is in use on your platform, and how popular each track is.

The collecting society will then pay rightsholders for your use of the music. That’s it, more or less. It’s not complicated, but it will be a challenge. There are a lot of details we have to get right. Let’s get into some of them.

This one is such old, old news that it is almost shocking until you consider the source.  But it is given new life by the Music Modernization Act and The MLC it spawned which is exactly what we said would happen in the breathless run up to the MMA.

What these people always have wanted is one blanket license for everything with no meaningful reporting obligations.  This was true of the ridiculous plan for ISP licensing we heard from the Berkman Center’s Terry Fisher and the absurd “Choruss” project that never really launched.  (I co-wrote an extensive article on this issue in 2008.)  The fact that the idea failed miserably doesn’t mean that EFF won’t dust it off these many years later since they were encouraged by the passing of Title I of the MMA that established The MLC.  And they probably think we’ve all forgotten the past.

It must be said that by 2017 songwriters were teed up with substantial leverage from the class action lawsuits against Spotify and Rhapsody to finally get the government’s boot off their throats that was imposed for some original sin generations ago in 1909 that nobody even remembers today.  Generations of songwriters have grown up accepting that somehow they are singled out for more regulation that Big Tech has ever had.

Instead of using that leverage for freedom, they inexplicably doubled down on regulation for reasons I entirely fail to understand and may not even function.  Remember, the MMA is a prime example of the Nightmare on K Street–the lobbyists who tell you what you want to do is very complicated, very expensive and you can only accomplish it if you hire them.  (Whatever “it” may be.)

Now we have Title I of the MMA that creates the blanket license that so enraptures Mr. Doctorow.  This should come as no surprise because what Big Tech (in the form of the MIC Coalition) was really pushing just before MMA was the Transparency in Music Licensing and Ownership Act, which would have essentially created total government dominance of the entire music business (and which I heavily criticized at the time).

It is not surprising that the EFF and Mr. Doctorow are once again pushing this idea of what is essentially sampling based ISP licensing in the form of the “Internet license” as a kind of dark science that imposes on songwriters and artists the exact kind of revenue share popularity contest that has given rise to the user centric movement away from “how popular each track is.”

Tone deaf, once again.  You can look for Mr. Doctorow’s “plan” to be picked up by the Music Managers Forum in the UK.  The Spotify apologists at Complete Music Update will no doubt be braying about it just any moment.

What he apparently wants to do is set up a massive revenue share statutory blanket license for sound recordings along the lines of the Title I blanket except with what will be virtually unauditable accounting based on popularity as a proxy for usage.  In other words, the exact same kind of problem that exists today with the revenue share model–users paying for music they don’t listen to.

Mr. Doctorow’s method confirms that “the science is in”–“[Services will] use statistically rigorous sampling methods to assemble an accurate picture of which music is in use on your platform, and how popular each track is.”

Ah, statistics.  Yes, that’s the ticket.  What could possibly go wrong?

Mr. Doctorow’s apocalyptic proposal extends the dark science that is destroying culture and artists livelihoods.  And worse he does it with the full Orwell–in the name of fairness to artists and the sainted innovation:

If you want to start a TikTok, Facebook, YouTube, Apple Music, or Amazon Prime competitor, you’ll be free to make the very best service you can, and you will have access to the exact same catalog that the established services offer.

Four of those examples either have no music licenses at all or had to be dragged kicking and streaming into legality.  And instead of being up in arms about how these companies use data scraping to profit themselves in the background to create revenue they share with no one, Mr. Doctorow thinks that his proposal will encourage competition with some of the most anticompetitive companies on the planet representing trillions and trillions in market cap.  Competitors for the robber barons don’t struggle with music licensing in order to compete, they struggle with competing in order to compete.

There is an overlooked passage in Winston Churchill’s “finest hour” speech which actually resonated with me more than the better known passages:

[I]f we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science.

This proposal does not increase fairness, transparency or legitimacy.  It facilitates the new Dark Age made more sinister by perverted science.  And it was made more inevitable by the creation of The MLC.