Music Licensing Shop Harry Fox Agency Appears To Be Scrambling To Fix Its Failure To Properly License Songs

from the well,-look-at-that... dept

A couple of months ago, I wrote a long post trying to dig into the details of David Lowery's class action lawsuit against Spotify. In the end, while there was some question over whether or not streaming music services really need to get compulsory mechanical licenses for producing reproductions of songs, it seemed like the fact that such licenses are compulsory and can be obtained easily via having the Harry Fox Agency issue a "Notice of Intention" under Section 115, it seemed crazy to think that the various music services had not done that. In fact, we noted that the only way the lawsuits made any sense was if the various music services and HFA ignored this and didn't send out such NOIs. At the time, I noted that this would be a surprise, and it could mean the services were in deep trouble.

Or perhaps not a surprise... and, yes, some folks may be in deep trouble. Beyond Lowery's lawsuit, a few other similar lawsuits have been filed. Earlier this month, Tim Geigner wrote about a very similar lawsuit filed by Yesh Music against Tidal. Of course, what didn't get as much attention is that Yesh filed very similar lawsuits against a bunch of other music services as well, including Google Music, Slacker, Line Corporation (which runs Mix Radio) and Guerva (which I think is a misspelling of the music site Guvera). Yesh also sued Deezer a few months ago.

One of the key questions that came up following the reporting on all of these cases is the Harry Fox Agency's role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it's beginning to look seriously like HFA just fell asleep on the job and didn't bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.

Both David Lowery and another songwriter, Ari Herstand, have recently posted examples of HFA suddenly sending them NOIs that appear to be rushed and are showing up way after they're supposed to. I rarely agree with Lowery about anything, but it's seriously looking like HFA totally fucked up here. Big time. Here's the notice Lowery received:
As Lowery notes, this NOI was sent on February 16th, 2016, but was signed by a Spotify exec who left the company in 2015, for a song that showed up on Spotify in 2011 and using an HFA address that didn't exist until 2012. Basically... it looks like HFA is rushing around trying to send out NOIs that it failed to do properly, and doing a pretty half-assed job about it. And that seems especially stupid when it comes to issuing those NOIs to the guy who is already suing over those missing NOIs.

Herstand just received a similarly late NOI from HFA for his music appearing on Apple Music. As he notes, his notice says the music should appear on Apple Music as of March 10th of 2016, but it's actually been there since Apple Music launched last summer. He also notes this is the first NOI he's ever received from HFA, while he has received plenty of NOIs from the much smaller HFA competitor Music Reports "on a regular basis."

So, given all that, it sure looks like HFA didn't do the one thing that it was supposed to be doing all along, and that's... going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I'd be shocked if they didn't include some sort of indemnity clauses, basically saying that if music isn't licensed because of HFA's own failures to do its job that any liability falls back on HFA.

And, if that's the case, HFA could be on the hook for a ton of copyright infringement. If it's true that it's basically been ignoring the fairly simple NOI process for a lot of artists, then that's going to be a major scandal -- but one that seems a lot harder to pin on the music services themselves. They went to HFA and hired the company to handle mechanical licenses. There may be more going on behind the scenes here, but at a first pass, based on what appears to be happening, HFA may be in some seriously deep trouble.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 2:13pm

    Page 1 of 0.

    Hollywood accounting even on the page numbers?

    reply to this | link to this | view in chronology ]

  • icon
    MadAsASnake (profile), 11 Mar 2016 @ 2:32pm

    Oh gosh - another body set up by the music industry raking in money for doing nothing. Not even doing the tiny thing it was meant to do. Colour me surprised? Nah...

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 11 Mar 2016 @ 3:09pm

    One does wonder how many of these outrageous things the artists claim are actually caused by the failure of the system not working as it is supposed to? The system lies to protect its status, unleashing hate on the easy to hate target who did everything they were supposed to.

    Perhaps it is time that artists actually demand that reform of these systems happen. No one else is coming to save you, but demanding that the systems work as advertised - cutting out a bunch of bloat & useless things would make people start to take you a bit more seriously. You abdicated your rights to these people who have monumentally failed to serve you and then attacked not those who screwed up but those who tried to play by the rules.

    It is a new century, perhaps maybe force them to update the system to at least 1990 levels.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 7:22pm

      Re:

      It seems that rather then demand reform, they should just demand to be released from their contracts.

      Frankly, NONE of the artists need the publishers anymore, and almost all of them would be better off without them.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 12 Mar 2016 @ 3:30am

        Re: Re:

        Artists should have the power, but the legacy players like things being this way. You get Camper Van Dimwit screeching how this platform and that platform are robbing him blind, claiming the platform is lying when they say they did what was required... and then we discover that the idiots who had one job didn't do it while paying themselves.

        It is time that they clean their own house before just assigning blame to the platforms. Stop assuming that the platforms are evil and consider that the failure is on their side and might even be engaged in hiding they are inept to get more press for how evil the platforms are & demand more cash (that the artists magically still won't see).

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Mar 2016 @ 8:00am

          Re: Re: Re:

          what ARE you prattling on about?

          I just said that the artists should take the power back from the publisher who are screwing them.

          reply to this | link to this | view in chronology ]

  • identicon
    Ari Herstand, 12 Mar 2016 @ 12:06pm

    Slight correction

    I actually received the NOI from Music Reports not HFA. To this day I have yet to actually receive an NOI from HFA. Apple realized HFA's complete incompetence so they enlisted Music Reports to pick up the slack. That was the NOI I received recently.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2016 @ 1:19pm

    google is to blame /sm

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Mar 2016 @ 6:11am

    You had ONE JOB

    So a group who's basically entire job is licensing music screwed up and forgot to cross all the T's, dot all the I's, and as a result you've got lawsuits flying over 'unpaid' royalties.

    Remind me again how simple and intuitive copyright law is, and how clearly if someone infringes on something, or doesn't pay the right person it had to have been deliberate, because of how simple the system is?

    reply to this | link to this | view in chronology ]

  • identicon
    tin_iws, 15 Mar 2016 @ 6:51am

    really?

    It seems like no one here actually understands how the Sec. 115/compulsory mechanical licensing scheme works.

    Spotify has MILLIONS of tracks, that then need to be matched to their underlying sound recordings (e.g., Sublime's "Summertime" recording has to be matched to the Gershwin composition).

    So, creating these matches for lesser known tracks--likely 17 mil. of Spotify's 18 mil. tracks--is difficult. But before a match can even be created, the composition metadata needs to be complete and registered in HFA's system.

    So, if composers/artists want to "take control," maybe they should ensure that their registrations are complete in HFA and the DSP's databases, and that the matches/links are correct in their systems. Remember, this is an unbelievable amount of metadata: often there are multiple songwriters, arguments over splits, incorrect data that won't match to the request from DSP.

    Basically, chill out. It's getting better, but you can help rather than complain.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 18 Mar 2016 @ 8:31pm

      Re: really?

      Sometimes help isn't what you expect.

      17 million tracks didn't get created yesterday, so one might expect that perhaps all of the important metadata should already be compiled in a system that makes matching faster, we have these computing devices that makes this go very very fast. Streaming isn't THAT new of a thing, and one might think ownership details might be important to have sorted out.

      Meanwhile there are artists screaming how they are being ripped off, loudly & often, making wild claims... and then it is discovered that the people on their side have been fucking around instead of doing the job.

      Then there are those rights groups around the world who somehow can't figure out who to pay, while sitting on that cash and working on figuring out who to pay while the interest is earned.

      Perhaps shaming the industry who screams how music is dying, artists aren't being paid, they are all being robbed for not actually having their work done before shifting the blame on those who are trying to play by the rules is helping.

      Several labels employee companies to scan the net looking for infringement and collect payments from downloaders, yet can't seem to afford to fix what are clearly broken systems that would pay the artists.

      reply to this | link to this | view in chronology ]

  • identicon
    Galaxy Orlando Records, 19 Nov 2016 @ 11:15am

    NOI

    I have gotten about 20 NOI s all from Harry Fox and I got one from Google on a song that was not even released..Harry Fox paid at least $1.15 for each NOI and Google sent it certified at the cost of $3.00.. That is $26.00. I just got a check from Harry Fox for 1 cent...WTF We all know that streaming does not pay very much which is how most people listen to music these days.. In 2010 it was downloads and of course there is no outside agency that monitors downloads and now how much money the websites take in for advertising. Why do these people who own all the streaming and download sites have the legal write to steal? MUSIC IS THE SOUND TRACK OF LIFE!!!!!

    reply to this | link to this | view in chronology ]


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