Since the Copyright Office wasn’t checking and since they made it virtually impossible for anyone else to check, it is likely that there are many incorrectly filed “address unknown” NOIs, which means that there are likely an equally massive number of infringements as those compulsory licenses would be invalid. This creates an obvious and forseeable problem for anyone wanting to check if their songs were incorrectly included in a mass NOI. ![]() Given that the Copyright Office chose to post the NOIs in this manner, it was essentially impossible for a songwriter or even most music publishers to search all of the NOIs to see if their songs were included or included incorrectly. So if Amazon filed an address unknown NOI, it would appear to be one or a few NOIs, but each one of those NOIs had an Excel spreadsheet attached that had tens of thousands of songs on it in most cases. When the Copyright Office started getting these filings, they began posting them in huge compressed files. ![]() That means that there are 60,000,000 free licenses in effect. There are now over 60,000,000 of these notices on file that have been posted. But all of a sudden after independent songwriters and publishers started suing Spotify, millions of “address unknown” filing started appearing at the Copyright Office in April 2016. Historically, there were a handful of these “address unknown” filings. In fact, as far as I can tell, they give no attention at all to address unknown filings. Unfortunately, the Copyright Office does not give the same degree of attention to address unknown filings. ![]() The large print giveth and the small print taketh away…. Why? Because they appropriately give your registration the once over to make sure that you filled it out correctly and giving that attention takes time. If you’ve ever tried to register a copyright, you know how long the Copyright Office can take to get you a conformed copy of your registration–months. In addition to actual knowledge, there’s also the argument that a reasonable person could have found the song copyright owner if, for example, that song is in the Billboard Hot 100’s Top 5. See the loophole? Even if they know who you are and how to reach you, they can say they don’t know if you haven’t registered your copyright–which you are not required to do unless you’re planning on suing. The way the loophole works is that if a song has not been registered in the Copyright Office (which is not required) then the service can say that the address of the copyright owner is “unknown,” even if the service has actual knowledge of the copyright owner’s contact. (I have an article in the American Bar Association Entertainment & Sports Lawyer periodical on this for those who want more information.) Oh and one more thing–if the service sends the address unknown notice to the Copyright Office, they don’t have to pay royalties until the copyright owner becomes identifiable in the public records of the Copyright Office, which may be never. Not to mention that updating the Copyright Office records is done at a waddling pace. ![]() The problems is that while the government might have thought in 1976 when the section was enacted that they had to tie up that loose end by referencing the Copyright Office, they probably did not realize that they were also requiring a look up in what was to become arguably the least reliable source of song information. Then you are deemed to have a compulsory license after that service date. The Copyright Act says that if you can’t find contact information for the song copyright owner in the Copyright Office’s public records, then you can send your NOI to the Copyright Office instead of to the copyright owner. As anyone who has done song research knows, there are a number of reliable places to look for a song copyright owner, starting with the performing rights societies like ASCAP and BMI that provide a free lookup service on their websites.īut…you can’t find what you don’t look for. One could argue that those are mutually exclusive end states, so keep that in mind. law, unless the service has a direct license with the copyright owner, a digital service can rely on the government’s compulsory license by sending a “notice of intention” (or “NOI”) to the copyright owner. The loophole permits digital music services to get away with what would otherwise be both infringement and nonpayment of royalties under yet another safe harbor, this time from 1976. You’ve probably heard about the “mass NOI” problem resulting from the Copyright Office allowing Big Tech to profit from a loophole in the Copyright Act.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |