Christian L. Castle, Attorneys -- Austin, Texas

Austin Music Lawyer

We practice in transactions at the nexus of the traditional music industry, content based technology and public policy.

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Choruss Hits A Sour Note, by Rick Carnes and Chris Castle

(This article first appeared in the December 30, 2008 edition of Content Agenda)

In early December (2009, Wired reported that some music labels were talking to universities about building a flat fee for file-sharing into tuition, allowing students to continue downloading music “without fear of legal reprisal”. The fees would be collected by a non-profit organization, Choruss, which would then distribute revenues back to participating record labels.

      The proposed Choruss music service appears to be an idea whose time has passed. While creators work hard to support cooperative business models that respect copyright and economic rights online, Choruss essentially waves a wand of legality over bandwidth-hogging file “sharing” programs without any of the accountability required of legitimate services like iTunes and Hulu.

     Creators are unable to control the distribution of their recordings through file “sharing” on university networks, and Choruss offers nothing to change that affront. Legitimate services such as iTunes have been wildly successful operating within the laws and recognizing the economic rights of artists while offering a great consumer opportunity. If Choruss “legalized” illegal file “sharing”, why would any user ever go to iTunes again? What would happen to the considerable investment already made in legitimate music and video services online, not to mention the network infrastructure that delivers content to consumers?

      The promoters of Choruss would have universities hide a music “tax” in student tuition bills paid by all students—whether they download illegally or not. (This charge would presumably be paid by scholarships, student loans and parents alike.) Choruss promoters rely on granting universities and students a “covenant not to sue” by some rights holders--a nuanced, untested, flimsy, and complex legal strategy that does little to shift the risk of prosecution for copyright infringement away from users. Choruss would have students believe their legal theories magically allow users to continue downloading without fear of consequences—and the nuances of the legal theory will be lost until the student ends up in the courtroom wondering what happened. 

      Why is the theory doomed to fail? Because there will be thousands of copyright owners who do not participate in Choruss. It seems highly unlikely that Choruss will be able to sign up all copyright owners in the universe, or even most. And note—the word “indemnify” does not appear in Choruss’s pitch materials. If the Choruss legal theory is such a great idea, why doesn’t Choruss indemnify the universities and students from any claims? What are the students paying for exactly?

       The gravest concern to creators, however, is that Choruss would have virtually no accountability to the songwriters, artists, musicians and vocalists who fuel the Choruss business model. The program offers no solution to accounting to creators for file “sharing” uses—campuses would merely “estimate” usage. Choruss stands in stark contrast to ASCAP, BMI, SESAC and SoundExchange, all of which spend considerable effort in tracking actual usage of the works they are permitted to license to be good fiduciaries to their members.     

     What will the long-term effects be on the music business? Under the Choruss model, “estimates” of p2p traffic will suffice for “success”—which means that major label records will be rewarded because p2p is a reactive technology, meaning that users typically go to an illegal service to look for a specific track, not to find out about new music. “Estimates” will inevitably reward artists who are getting or have gotten a big marketing push from major labels—not indie or niche artists.

     Choruss seems to plan on extending this plan to ISPs if it is “successful” on college campuses. It is hard to see why any ISP would want to be the collection agent for Choruss when the legitimate music services could easily be wrapped into a broadband or other ISP offering. 

     While legitimate services offer all of the accounting resources and control necessary to run a successful business, Choruss is lost searching for spare change under the cushions in a house of cards.

The Hubris Behind Google's Demotion of Rap Genius (Billboard Guest Post)

Google's attack on Rap Genius proves the company can demote websites when it suits the search giant.

Rap Genius recently came in from the cold after topping musician/lecturer David Lowery's "Undesirable Lyric Website List" in October.  To its credit, the site has so far chosen to negotiate lyric licenses with publishers and rejected litigating a tortured "fair use" defense for copyright infringement.

Rap Genius topped any Google results for practically any lyric search string, so the site was very well-known to music fans. That enviable ranking doesn’t seem dissimilar from search results for Isohunt, the Pirate Bay or Kickass Torrents.

Then last month there were reports that Google had “disappeared” Rap Genius by tweaking its search algorithms -- an existential threat to gutsy startups that many have complained of in the past.

So what was the cardinal sin justifying Google in disappearing Rap Genius? Operating without licenses? No, certainly not that. Openly challenging the music industry? No, not that either.

It would appear Rap Genius did the one thing Google doesn’t permit -- it spoke openly about beating Google at its own game. Rap Genius evidently tricked Google’s search algorithm into ranking it higher than the site should have been absent the manipulation. And for this cheeky violation of Google’s rules -- not a law -- the search giant demonstrated two points in one flex of its dominant muscle.

First, Google does exactly what it has denied doing for years -- bury companies that it doesn’t like. Google is currently denying disappearing challengers before the European Commission (EC) competition commissioner in a heated antitrust investigation.

Also, for years Google has promised creators that it will “demote” the worst unlicensed sites in search results -- sites that are usually ad-supported. Despite Google receiving tens of millions of costly take-down notifications every month, who can tell the difference between the before and after?

EC VP/competition commissioner Joaquin Almunia is investigating Google’s monopoly business practices in Europe. The case has everything to do with companies whose survival depends on “search neutrality” -- fair rankings in Google’s dominant search results. These competitors to Google’s growing number of product lines complain that they often experience the inverse of Rap Genius’ fate -- legitimate companies get a worse ranking than they deserve.

The point is that Google established the rules and Rap Genius apparently hacked them. The punishment? Not a lawsuit from Google’s legion of lawyers, but rather the self-help disappearing remedy -- because that’s how Google rolls.

The principle at work here is simply that Rap Genius offended Google and -- dare I say it -- Google “censored” the site in return. (Rap Genius has since apologized for gaming Google’s search engine in the first place, and this month its links started reappearing in lyric search results.)

This is exactly the behavior that Almunia must weigh in deciding whether to give Google not a first or second chance at an antitrust settlement, but an unprecedented third chance to avoid a government antitrust lawsuit.

Google has claimed for years that it doesn’t profit from piracy, despite driving traffic to pirate sites with Google advertising publisher account numbers. The company acknowledges terminating 46,000 such accounts for piracy violations of its publisher agreements -- 46,000 accounts from which Google presumably received about 40% of the ad revenue prior to termination -- revenue that apparently also was disappeared. And these are just the accounts we know about.

This is why the creative community asks Google to demote pirate sites in search results -- to do to unlicensed pirate sites what Google just did to Rap Genius, which has begun negotiating licenses. Google’s response? No measurable change for several years.

For all its bluster, Rap Genius has demonstrated to Almunia that Google disappears legitimate companies it doesn’t like, and has shown creators that Google is perfectly capable of demoting any site. And Google has shown once again that nothing says Internet freedom like getting away with it.

A bipartisan offender: The Internet Radio Fairness Act

So if the groups Cracker or Camper Van Beethoven spoke out against a direct licensing deal because, say, it might allow record companies to capture the artists’ share of performance royalties, would that exercise of free speech “impede” direct licensing? Do artists now have to check with their legal counsel before making comments on Facebook for fear of being sued under The Sherman Act?  Do the member companies of the Internet Radio Fairness Coalition with their combined $1 trillion plus market cap really need this special government protection? 

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“Five Things Congress Could Do For Music Creators That Wouldn’t Cost Taxpayers a Dime“

1.  Create an Audit Right for Songwriters for Compulsory Licenses:  One of the oldest compulsory licenses in the Copyright Act is the “mechanical license”, the statutory mandate forcing songwriters to license songs that dates from 1909.  The government mandates the license and also mandates the rate that songwriters are paid—from 1909 until 1977 that rate was set at 2¢ per recording.  Although that rate was eventually indexed to inflation leading to the current 9.1¢ minimum, songwriters had to dig out of a deep hole.

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Recording Tips for the 'The Loudness Wars': An Interview With Mastering Great Bob Ludwig

Mastering is the last and probably the least understood step in the audio recording process.

Mastering engineer Bob Ludwig is one of the true living legends of the music business. In addition to being a Grammy winning engineer, he has received many TEC Awards for excellence and was the first winner of the Les Paul Award from the Mix Foundation for setting the highest standards of excellence in the creative application of recording technology.

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Creators see silver lining in adapting to technological changes Read more: Creators see silver lining in adapting to technological changes

Flexibility, transparency, and monetization: these are some of the cornerstone tools for professional artists adapting to the effects of technology on creativity in the 21st Century. The Arts+Labs CREATE conference in Washington, D.C. brought a fresh and even handed look into the world of creators and technology entrepreneurs. Unlike the typical D.C. policy conferences, the sponsors were able to assemble a group that was overweighted with film makers, photographers and other visual artists, songwriters, performers and record producers as well as technology companies--and only a couple of lawyers.


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Can creators call 911?

Sometimes rogue sites actually sell counterfeits directly to consumers using a major credit card. Sometimes they give away the movies or music and sell advertising—often advertising for well-known consumer brands served by one of the major adserving companies. And all of the rogue sites benefit from search engines that indiscriminately drive traffic to their sites. Sometimes the search engine owns the adserving company it drives traffic to.

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