The last three years have seen landmark disputes over mechanical licensing for songs, mostly involving Spotify and a few other digital music platforms. Unlike the well-known lawsuits in the Napster and post-Napster era, there has been a “democratization” of infringement claims brought by individual songwriters like Aimee Mann, David Lowery and Melissa Ferrick some of which turned into well-known class actions. In contrast, publishers have largely favored private settlements rather than the courtroom. Hundreds of well-known songwriters or their estates have recently objected to a class action settlement in one of the Spotify class actions, and Spotify was also sued by some independent publishers who opted out of the publishers’ private settlement. The digital services have responded by leveraging a little used loophole in the legacy 1976 Copyright Act allowing them to serve millions of “address unknown” notices on the Copyright Office and exploit these songs on a royalty free basis. These “mass NOIs” total over 50 million, with millions of notices served by Spotify, Google, Amazon, Pandora and several others—although Apple is distinctly absent. The NMPA has proposed starting a mechanical collective licensing organization and abandoning song-by-song NOIs in favor of a safe harbor for digital services, a statutory procedure that has been the law in the US over 100 years. While this collective may help Spotify tell a story to Wall Street for its IPO, is it good policy to make that change for Spotify’s IPO, an event that may be over in a few months but the change in the law could affect songwriters for another 100 years? Is it good business not to? The panel will discuss these issues and the policy prescription for solving one of the pressing problems of the day.
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