The first thing I noticed was the unfinished buildings. My friend driving us to his apartment, in the ancient city of Athens, Greece, informed us that if you wanted to build a house in Athens you had to get as much of it built as you could, WHILE you could. Because every time a new official was elected, the building codes changed. So, there were unfinished buildings all over Athens, waiting on the next round of arbitrary codes from the arbitrary government …just so they could finish a freaking house.
It got me thinking …
This past week a rate court judge ruled in favor of songwriters, overturning the 100% licensing ruling, handed down by the Department of Justice last month. Yeah …I know. What?
What that means is …songwriters have been operating under something called a “consent decree” since 1941. When it was written, you could only own a copyright for 70 years. But the decree? Well …THAT had no sunset clause. It’s forever. And it was written 4 years before my father was born. I’m 49 …but I digress.
This consent decree was a compromise by ASCAP (the main company that collected radio royalties for songwriters) to keep from being held guilty of anti-trust laws. At the time, ASCAP was considered a monopoly. Never mind that a new, private company had been established called SESAC (the company to which I have proudly belonged for 25 years) and that would’ve technically rendered the monopoly issue a moot point. But SESAC wasn’t yet enough of the market share to be considered “viable.” Plus …they were and are FOR profit. So the decree was handed down and BMI was formed to “compete” with ASCAP. With this decree came all sorts of legal mumbo jumbo and bureaucratic red tape that literally NO ONE understands. Maybe they did before dad was born. Who knows?
But what it comes down to NOW is this: ONE ex Google lawyer can get a job at the DOJ, then issue an edict that allows anyone who wants to license a song I wrote with you …to deal with me only …without having to even contact you. It was maddening and unworkable for a business built on collaboration.
But then, a “rate court” judge looked at that decision this week and set it aside. He will be the hero to songwriters all across the fruited plane for a while, because he was on OUR side.
Well guess what? He’s not a hero to me. I have nothing but love for him, as I do for the DOJ person who tried to destroy me (I’m trying to love everybody). I’m sure he’s a nice man. I’m sure he’s got a fine family and he was definitely on the right side of this issue. But who in God’s name decided that people in robes, who know nothing about my industry, thousands of miles away, should be the deciders and arbiters of how my art is consumed, how much it will cost, what the rates will be, who has to pay those rates and who does or doesn’t have to be consulted in the payment of those rates?
The underlying principle at play here is the 100% licensing ruling was an arbitrary decision by a SINGLE lawyer, that affected me and hundreds of my colleagues, personally. It affected college funds and retirement accounts and where we might eat for dinner. It affected the kinds of houses we might live in or the cars we might drive. It affected our LIVES. And it was tossed off as nonchalantly as an email from Hillary Clinton or an insult from Donald Trump.
Then it was changed back …just as nonchalantly. This isn’t workable law. This is whim and opinion with the lives of an entire natural, creative resource hanging in the balance.
Self governance was supposed to be the next step of human evolution. People operating in their own self-interests, coming to terms with other people operating in their own self-interests, finding solutions for the common good, WITHOUT government decree and bureaucrat control, was a big part of what the American experiment was supposed to be about. But we still are somehow hard-wired to give up our power to a selected few: A king, a president, a supreme court, a rate court judge. We cheer for them when they help us and vilify them when they rule against us. Maybe the problem is …we don’t need them to solve our problems in the first place.
How refreshing would it be to see a handful of millennials find and develop a new way to track and report airplay for songwriters as easily as they have allowed developed systems that steal from us? What might the intellectual property landscape look like if EVERY aspect of it could be as nimble and agile as the companies not moored to government restrictions and antiquated court rulings? In short, what if songwriters had the same power in the market that Sony and Spotify has? Maybe we wouldn’t be biting our nails, hanging on every tiny decision that gets handed down from on high.
I’m on my way out of this business at some point, either by choice or by attrition. And I’m leaving it with just as many problems as I found it with. Songwriters are still getting screwed by record labels. Labels are still at the mercy of new delivery formats. Budgets are still only based on the tangible amount money that can be earned back. It’s hard to reconcile. And it always was. But the bigger idea for me is that two lawyers can jerk entire populations around this much, and it bothers me to no end …even if one of them is jerking in the right direction. Yes. I meant to say it that way.
What is called for is the complete and total vacating of the 1941 consent decree. NOTHING LESS would be American. The Boston Tea Party happened for less than this. And it’s time for songwriters – the ONLY trade group in the history of America that has NEVER been allowed to negotiate its own rates – to be front and center.
It isn’t about the rates, themselves. It isn’t about how much money I or my colleagues make. It isn’t even about fairness to one group or another. It’s about the basic principle of a COURT (a magistrate, if you will) deciding how a private sector industry should be run …from a bench. And that feels an awful lot like a certain monarchy our forbearers fought to overthrow.
At the very least, it feels an awful lot like living in an unfinished house.