I wanted to write about why I took up the cause of the Songwriters of North America ("SONA") and really songwriters in general, against our mighty government, without charge. We are growing a new firm that sports lower rates for the industries’ best lawyers and many other attributes that are client-driven. It’s hard to compete against bigger firms that put profits first, while offering the same or better quality services – our young lawyers are not burned out and are therefore more sharp and focused – and also dropping your rates as low as we do. That effort, that mission, can be made harder when you take on a big case and don’t charge for your time. I love music and I care deeply for songwriters, singers, and bands. I have gotten to know these lovely people, from Ron Isley, to Tom Waits, to the Neville Brothers and so many more. They are soft souls. But, if you sing for a living at least you can tour and make money, especially with the abundance of music festivals. The songwriter who writes the big hits lives off of mechanical royalties paid for her composition and performance royalties. Those royalties, while already so watered down over time, are what puts food on her family’s table, keeps a roof over their heads, and pays for her kids’ education. Her songs may be sung by boy bands, teeny boppers, and rock stars, and played everywhere from high school proms to weddings or funerals. Those royalties are well-deserved, and to the songwriter, they are indispensable.
This Department of Justice decree regarding 100% licensing will put some of these songwriters on the street and put many on the poverty line. And why? So that Google can make more money, or any of the other companies that want to digitally stream music for big profits. Profits before people. The small guy loses all the time. But, to step on the very people who provide the music that defines our lives is so morally bankrupt. No political favor nor big company hubris should be allowed to trample over and crush the songwriter. I can’t stand by and watch this happen, so I’ll put all that I have and even that which I don’t have behind this effort.
Set forth below is a brief overview of how songwriters have been violated and treated poorly by our society. Think about this. Own this. Do something about this, and now. Do the right thing.
Reports of illegal music downloads start as early as August of 1996. In essence, that means the damage incurred by songwriters has been ongoing for just over twenty years – longer than musicians like Lorde or Shawn Mendes have been alive, much less writing songs. In the mid-nineties, pirated songs were posted and shared by users on MP3-trading channels over Internet Relay Chat networks. Download times were slow, sometimes taking up to 14 hours, and often brought back corrupt files if not failing completely.
But it was Shawn Fanning's Napster, released in 1999, that revolutionized free (read: illegal) music downloading on a universal scale. Napster allowed users to share files directly through its centralized "peer-to-peer" (p2p) server. By March of 2000, Napster had 20 million users, and over the following summer, almost 14,000 songs were downloaded every minute. At its peak, Napster had 57 million users. Many of those users were teenagers, unaware that they were infringing copyrights; others may have known but could not imagine that they would be caught or penalized. Some failed to categorize their own actions as “stealing” at all. Still others justified their actions by choosing to believe that the wealthy musicians whose music they were pirating wouldn’t be harmed all that much.
Though Napster was eventually forced to shut down (a federal judge ordered that it no longer allow copyrighted material to be shared over its p2p network), many iterations of the same beast reared their heads, including Kazaa, Limewire, and Grokster, as well as Bittorent sites like the Pirate Bay. Thus, those that wanted to obtain pirated copies of songs without paying could still do so fairly easily.
iTunes began offering an alternative, legal music procurement solution in April of 2003 – songs for download for $0.99 each. But the damage had been done. Users who had been pirating illegal copies of songs were reluctant to shell out even the 99 cents for a legal version. Like it or not, Napster instilled within an entire generation the idea that music should be free and that downloading pirated copies didn’t really harm anyone. Tell that to the songwriters who have been relying on royalties for the past two decades.
With the advent of digital streaming services such as Pandora and Spotify, some groups of songwriters have resorted to litigation to be compensated fully for their songs. Spotify got hit at the end of 2015 and earlier this year with two class actions arguing that it "unlawfully reproduces and/or distributes copyrighted musical compositions" and "profit[s] off its own unlawful conduct." Lowery v. Spotify USA, No. 15-cv-9929, complaint filed (N.D. Cal. Dec. 28, 2015); Ferrick v. Spotify USA, No. 16-cv-180-BRO, complaint filed (C.D. Cal. June 27, 2016). Similarly, streaming service Rhapsody was also sued in a class action this year for “impermissibly distributing songs in violation of copyright law” and infringing class members’ mechanical rights. Lowery et al. v. Rhapsody International Inc., No. 16-cv-1135, complaint filed (N.D. Cal. Mar. 7, 2016).
With regard to performing right royalties, BMI and ASCAP have also sought to protect their members by pursuing litigation against streaming services. BMI won its 2013 lawsuit against Pandora which sought to increase the percentage of performance royalties for each stream; BMI argued for – and was granted – a rate increase from 1.75% to 2.5% of Pandora’s revenue. Broad. Music, Inc. v. Pandora Media, Inc., 140 F. Supp. 3d 267 (S.D.N.Y. 2015), appeal withdrawn (Jan. 6, 2016). ASCAP's case against Pandora, however, lost in the Second Circuit Court of Appeals, where that Court found that the 1.85% performance royalty rate it had been receiving was reasonable. In re Pandora Media, Inc., 6 F. Supp. 3d 317 (S.D.N.Y. 2014), aff'd sub nom. Pandora Media, Inc. v. Am. Soc. of Composers, Authors & Publishers, 785 F.3d 73 (2d Cir. 2015).
Our Firm believes that the DOJ’s interpretations of the consent decrees are completely inconsistent with both industry practice and copyright law, as well as with SONA members’ due process rights. These songwriters are responsible for the creating the songs we know by heart and for curating the soundtracks to our lives. It's time that we all stood up for them, and that is exactly what we intend to do in this case.