SONA Fights On Against Government Overreach After Judge’s Smackdown on DOJ Over Music Licensing

Last week, federal Judge Louis Stanton delivered a smack-down on the Department of Justice (read the order here) but a suit brought by songwriters is waiting in the wings.

In a declaratory judgment, Judge Stanton sided with BMI and rejected DOJ’s proposed rule change forcing vast changes in the way copyright owners license and get paid for their work. The DOJ rule mandated a change from fractional licensing to 100% licensing. In case there was any doubt about Judge Stanton’s ruling, the opinion ends with an epic, unequivocal statement: “The Consent Decree neither bars fractional licensing nor requires full-work licensing.”


Fractional licensing works like this: Bars, stadiums and online streaming services, among other outlets, buy licenses from organizations like BMI and ASCAP (called in the industry PROs) to be able to play a list of songs licensed to the PRO. So if you’re in a smoky bar and hear “Smoke Gets in Your Eyes,” it’s because ASCAP or BMI represents someone who owns at least a part of the copyright to the song. BMI collects from the bar the fee for the portion of the song that their member owns and passes that along to the member. You get to feel melancholy on a Friday night, the bar makes another drink sale, the artist gets paid for his work, and everyone is happy.



The DOJ rule change would have altered this arrangement, which has been the industry practice for a long time, so that any one copyright owner can license the song at 100% of its value to one PRO and another owner could license at 100% to a different PRO. Then someone, maybe the copyright owners, have to get the percentages of fees to the other owners.

When songs have not just a few but dozens of copyright owners, you can imagine the mess. Copyright owners worry this would cause a confusion, an increase in overhead as all these payments are figured out, and decrease their negotiating power, resulting in lower revenue overall as the values of the licenses plummet.

The basic problem is more fundamental. Over decades of music creation, songwriters, performing artists, labels, and distributors like PROs have negotiated and signed contracts between themselves that govern these things. They contracted based on an understanding of how the system would work, and tightly negotiated those contracts with fractional licensing in mind. The DOJ rule would have overturned thousands, nay millions, of private contracts between parties who bargained for exactly what they wanted.

Government doesn’t get to do that.


Plus, when songwriters collaborate now, they don’t have to stop and think about PRO affiliation. They just pick the best collaborator to get the job done. If the DOJ’s rule is implemented, songwriters would have to consider with which PRO a collaborator has signed. If government action limits who artists can work with, not only is that a ridiculous intrusion into private contracting, but will end up creating a less vibrant music universe for listeners. Bad for artists, bad for society.

Freedom to contract is the premise behind another lawsuit on the matter, filed by the grass-roots organization Songwriters of North America (SONA). While the BMI lawsuit was based on asking the court to interpret the consent decree that governs BMI and ASCAP licensing agreements, the SONA lawsuit has a completely different legal theory. (You can read the SONA complaint here.)

Despite the assertions of Public Knowledge, neither count in SONA’s lawsuit is a copyright claim. Instead, the first puts forth a Fifth Amendment claim that DOJ’s proposed actions would take property from affected parties without due process. People have a property interest in both the contracts that the rule change would overturn and the underlying copyright interests. The Fifth Amendment protects against government taking these interests with the flick of pen.

The second count is an administrative law claim, that the DOJ rule change violated the APA (Administrative Procedure Act) by acting outside of the scope of the DOJ’s authority and was adopted without procedural safeguards, among other things. SONA is asking the court to declare the rule change unconstitutional under the Fifth Amendment and unlawful under the APA.

At this point, it’s not clear whether the DOJ will fight back against Judge Stanton’s appeal or let the matter stand. If the DOJ rule change is thrown out because of Judge Stanton’s reading of the consent decree, the SONA suit may well be moot. But if the case continues, SONA has a very good case against government overreach.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

Follow Rebecca on Twitter: @Rebecca_Cusey

Warner Bros DMCAs its Own Site and Everyone Misses The Point

TorrentFreak, which apparently spends valuable time combing through the Lumen database of DMCA notices, caught an error recently.

Vobile, a company that enforces copyright online for copyright owners, sent to Google on behalf of Warner Brothers a notice to take down links to infringing content under the rules of the DMCA. Vobile mistakenly included links to, Amazon, Sky, and IMDB, sites that presumably have permission to sell Warner Brothers movies or other legitimate reasons to post content.

Vobile uses automated methods to find and report infringement. This is proprietary so I’m just going to assume little Oompa Loompas comb the internet, find the infringement, and sing rhyming tunes as they fill out DMCA notices.

Google apparently caught the error and did not remove links to the legitimate sites. I like to think Google and Warner Brothers had a good laugh over a beer or two. And that would have been the end of it except TorrentFreak used the incident to argue that DMCA notices are all too often inaccurate. (TorrentFreak also reported that Google was still “investigating” the Warner Brothers link. I wonder how they knew that. Update: Please see note below.) A few blogs picked up the story and now it’s a thing.

So, like a good reporter, I went and reviewed the DMCA notice that Vobile sent for Warner Brothers. You can view it for yourself here.

The first thing to notice is that those Oompa Loompas found a lot of links to infringing content. In this one notice to Google alone, there are 363 links to content regarding 5 movies.

Since TorrentFreak raised the issue of inaccurate reports, I decided to investigate the links themselves. I took the first batch of links that were reported to Google, 36 links to infringement of the 2006 movie “300.” (THIS IS SPARTA!) I visited each site to see what I would find, an experiment I don’t recommend for the faint of heart.


  • Of 36 sites, all but five linked directly to sites that were actively purporting to make available the movie “300,” immediately, for free. Usually by both download or streaming.
  • Several sites had the movie available to stream immediately with no further action required.
  • At least 18 sites purported to have the movie available, but when you clicked to watch it, required you to download software. I have no way of knowing what this software was of if it was malware intended to damage my computer.
  • Three sites looked like sites where you could in the past download or stream “300,” but either the link was broken or the file was unavailable. I could not tell if this was because the content had been removed as a result of a DMCA request, for some other reason, or just a glitch.
  • One site looked like it was possible it could be licensed content. It was hard to tell without being privy to licensing agreements. Also without speaking Portuguese. But it was the only reported link in which there was any possibility at all in the universe that the content was licensed.
  • Two sites were so aggressive about forcing me to download a file they locked up my computer unless I clicked ok and I had to perform a hard reboot to (hopefully) avoid it.
  • At least one site seemed to start an auto download of files to my computer.
  • All the sites had ads, including one for gogiberry juice which I found odd in the context of “300.”
  • At least five had ads for pornography or pornographic games.

After soaking my computer and my eyeballs in bleach, I did the math. Merely checking these sites for possible infringement took me an hour and fifteen minutes (including time to reboot my computer multiple times but not including all the virus screens I’ll have to perform). That was without the time it would take to copy the link to a DMCA notice to Google asking them to remove the link. And that’s just to remove the links from Google searches. If I wanted to remove the links from other search engines or send DMCA notices to the sites themselves and their hosting ISPs, that is easily double the time. Probably triple. Maybe more.

For 36 links. Out of 363 on the takedown notice. For five movies. That day.

Of the 36 reported links I checked, 97% linked to current or previously infringing content or sites that purport to provide infringing content. 50% attempted to install software on my computer that, for all I know, may be malware.

The point here is not that automated reporting sometimes, but rarely, returns errors. (And, as an aside, if errors such as this were common and if TorrentFreak constantly monitors Lumen for them as they apparently do, we’d hear about it all the time.)

Finally, I did a search on Google to watch “300” online for free. As will shock no one, least of all the oompa loompas, there were scores and scores of results that I would bet my peanut butter sandwich lead to infringing content.

There are two takeaways from this exercise.

First, a human being, even a department of human beings, cannot physically find all the infringing content even for an old movie that everyone has already seen, send takedown notices for that content, and monitor to see if it has been taken down or reposted. The man-hours in doing this, well, manually, are astronomical. For a company like Warner Brothers it’s bad enough. For an individual indie filmmaker, prohibitive and overwhelming. Automation is absolutely essential if there is any hope of protecting copyright at all.

Secondly, even automated systems barely make a dent in the infringing content that is out there. Google still returns links to infringing content. Of course mistakes will happen when the infringement is so pervasive.

After an hour finding infringement, you start to feel like King Leonidas facing Xerxes’s army. Tonight, we dine in (DMCA) hell.


UPDATE 9/13/2016 6:00 EST – I heard from TorrentFreak’s Ernesto van der Saar, who seems like a professional and reasonable guy. He pointed me to Google’s Transparency Report, which clearly states the Warner Brothers link removal request is still pending. I did not know how to check that and I appreciate Ernesto taking valuable time to point it out to me. Also, clearly that is where TorrentFreak got the information I was questioning. Thank you, Ernesto!

4 Reasons Conservatives Should Care About Strong Copyright Law

Ain’t nobody agreeing on policy these days. Heck, we don’t even agree with our own parties,  Democrats fighting Democrats and Republicans fighting Republicans all day long. Besides agreeing that Simone Biles is amazing, it seems Americans don’t have much to agree on.

Except copyright. People in red states, people in blue states, even people in red states turning blue, can agree that protecting creators’ ability to control and profit from their work benefits us all.

I’m a conservative myself. So, for my fellow right of center folks, here are reasons conservatives should care about protecting copyright.

Strong Intellectual Property Laws Encourage Innovation

America brought the world the automobile, rock n roll, and the desktop computer. We did it because we are a dynamic people, always looking for how we can improve the world. But not just that. People innovate because they think they see a spot in the market they can fill and make a buck, maybe a lot of bucks!

It’s all about incentives. Copyright protects the potential to profit off your innovation (as do copyright’s cousin – patents). If you do not think there is a chance you will make money, why invest time and effort writing a song or your great novel? How can anyone but the very rich invest decades mastering, say, an electric guitar if they won’t be able to support their families playing it? In fact, if copyright does not protect you, the incentive is to choose something safe to put food on the table rather than risk innovating.

Copyright protection promises that if your novel hits it big, like Harry Potter big, you will get the benefit of that success. It gives you a financial incentive to shoot for the stars.

People Should Benefit From Their Hard Work

Hard work leads to rewards. Those who don’t work hard do not deserve to get big rewards. This is a conservative mantra. We love scrappy small businesses who build something out of nothing. We love big corporations who employ millions (so long as they play by fair rules).

But what if your hard work is in making a film? Writing cookbooks? Composing songs to sing at church? Sometimes conservative circles do not see these types of innovations as deserving. After all, a girl messing around on the piano is hardly hauling hay for the afternoon feeding of the cattle. An author tapping away at Starbucks is hardly building a new skyscraper.

This is faulty thinking. If someone works hard, whether it be with brains or brawn, they deserve to benefit from that hard work. It takes decades, not to mention talent, to become a professional musician. It takes months of painful labor to write a book. An author is a businessman as much as a farmer and deserves to profit from his work. Conservatives don’t think there’s anything wrong with making an honest buck. Conservatives should be encouraging that in the creative arena as well as in the physical.

People Should Pay For Benefits They Receive

There’s nothing wrong with making an honest buck, but there is something wrong with freeloading. This is why conservatives oppose excessive entitlements, creeping socialism, and lawlessness. Stealing in any form undermines a society. It not only hurts the producers, but erodes the soul of the person freeloading. There is dignity in paying for what you want and need, even if that sometimes means you go without, but very little in accepting endless handouts.

Conservatives believe this strongly, except when it comes to the Internet and copyright infringement. People who would never take a welfare check do not balk at downloading a pirated movie. People who would never steal a paperclip from work don’t think twice about listening to unlicensed music.

It’s easy. It seems small. And it’s wrong. Stealing is stealing in any context. The true conservative value is that people should pay for any benefit they receive, the market should work freely, and stealing should be stopped. The Internet should be no exception. Strong copyright laws protect that value.

Copyright is in the Constitution

Article I, Section 8, Clause 8 empowers Congress to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Conservatives are all about sticking to the Constitution. The Founding Fathers thought Copyright was important enough to specifically mention in the Constitution. They knew that protecting innovation would lead to a strong country. And they were right. Times may have changed, but the basic principles by which we live remain the same.

Take Action

Go ahead and speak up. The Copyright Alliance has posted an open letter to all 2016 Political Candidates, asking them to promote strong copyright laws. An easy way to support strong copyright is to go here and add your name to the petition.

IMG_4988About the Author: Rebecca Cusey is a writer and law student. She writes about movies and other things as a Senior Contributor for The Federalist and as a Policy Fellow at the American Conservative Union. She studies law at Antonin Scalia Law School at George Mason as a third-year student focusing on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children. 

header photo credit: Photo4Jenifer under a creative commons license.

Bad Things Happen When You Break the Law – Copyright Edition

People can be stupid, you know? Like this guy who called cops whining that the dude he was going to buy drugs from robbed him instead. Or this chick who felt like she got shorted in a drug deal and called the cops to make sure she got her fair share of pot. Or this genius who called the cops to get the $10 in change his meth dealer owed him. Turns out the “meth” was salt, to boot!

When you step outside the law, things outside the law happen to you, things like getting beat up, robbed, or sold salt instead of the high-grade methamphetamine you contracted to purchase.

It’s no different online, although you might lose more than $10 in the process. If you go to download stolen movies or music off illegal sites online, it’s likely that bad guys are waiting in the shadows to sock you over your metaphorical head.

A just-released study by the Digital Citizens Alliance  reports that 1 in 3 piracy sites expose users to malware or identity theft. Malware is bad software downloaded onto your computer. It can do several things: Monitor your activities, steal bank and credit card information, even activate your camera so someone can watch you without your knowledge. With the personal information malware can harvest, criminals online can sell your identity to the highest bidder. Plus, there’s a relatively new game in town in which hackers lock your computer and won’t unlock it until you pay a ransom. This can cost $500 for an individual, or more!

And that’s not even getting into the popups on these criminal sites that trick people into revealing personal usernames and passwords.

The DCA points out that although these criminals tend to be based overseas, they are aided by American companies that make it easy for them to operate in American Internet space without law enforcement being able to track who they are or where they are based. Companies like CloudFlare and HawkHost mask the illegal site’s DNS and hosting information. The criminals hide behind these American companies much as a drug deal hides behind the kid down the street who tells him when the cops are coming.

Human nature doesn’t change. Bad things happen when unsuspecting dupes wander into dark alleys. They take the risk thinking they’re just breaking a little law – whether it be buying some weed or downloading the latest blockbuster – but criminals have bigger plans.

Image: crodriguesc with a creative commons license.

All the Legal Stuff About Donald Trump using Queen’s “We Are the Champions” You Didn’t Want to Know

The iconic rock band Queen doesn’t like Donald Trump. Sadly for Queen, he likes them.

Is This the Real Life? Is This Just Fantasy?

Trump used their super famous song “We are the Champions” to walk onstage at the Republican National Convention.


Bombastic and crass in a particularly Trumpian, 80s wanna be cool way? Sure. Illegal? Probably not.

Queen responded (like your grandma who always signs her Facebook posts “-Grandma”) with:

This isn’t the first time. Maybe he’s just a poor boy, he needs no sympathy, but a month ago, Queen’s Brian May blogged about his anger that Trump uses his songs.

Buddy You’re a Boy Make a Big Noise

As far as permission to use the song goes, Queen got blood on its face, huge disgrace. According to Sean Spicer, a big honcho at the RNC, they got a license.

Campaigns, like other big events, buy licenses from organizations that maintain an extensive roster of famous songs. The organization lists songs by its members, the owners of the copyrights on the music. The organization then collects the licensing fee, passes that along to the copyright owners, and enforces licensing violations on behalf of the copyright owners. Easy peasy. The system works quietly behind the scenes and everyone is happy, or at least not unhappy enough to complain much. ASCAP and BMI are the two big players in this country. Sure enough, “We are the Champions” is licensed by BMI, charmingly to someone named “Mercury Frederick.”  It’s always good to confirm things that should be route with the Trump campaign, but I think we can safely assume by BMI’s silence that some responsible party at the RNC did, indeed, license the music. If so, Trump is not in violation of the copyright.

God Knows, God Knows I Want to Break Free

Even if the campaign did not buy a license, whether or not the use of the song would fall into the “Fair Use” exception is open to debate.

Fair Use is a defense to copyright violations. Basically, if someone sues a person for using their song, when that case gets to court, the person being sued will say “Yes, I used the song, yes it belongs to this other person, but it’s ok because it’s fair use.” And if the judge or jury agrees, another copyright case bites the dust.

America has broad fair use standards in comparison to much of the world because America values free speech to the extent of stepping on the toes of copyright owners. This has only gotten stronger in recent years, with the Internet being the Wild Wild West of copyright infringement under the banner of fair use, but I digress.

Judges look at four factors when considering fair use: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential market.

Because campaigns are (at least until Trump) shy about negative publicity, these factors haven’t been fully tested in court in the context of political campaigns, but they likely weigh in favor of use of snippets of songs by a campaign. First, the nature of the use is political speech, which is the type of speech passionately protected by First Amendment caselaw. Secondly, the campaigns tend to use just portions of the songs for the walk on. Nobody wants to sit through all five minutes of “We are the Champions” before listening to Trump blather, I mean, speak. So the entire song is not used, which is a big factor. Finally, it would be hard to argue that using a portion of a song in a campaign somehow cuts into the sales of the song, which is another big factor.

Pressure Pushing Down on Me, Pressing Down on You

Probably the real problem to Brian May and the rest of Queen is the very notion of being associated with someone like Trump. They’re in the terror of knowing what [Trump] is about, watching some good friends screaming “Let me out.”

This is more of a trademark issue than a copyright issue. There are fancy legal terms associated like “Lanham Act” and “Right of Publicity,” but the basic crux of the issue is whether or not the use of the song would trick people into thinking the band supports the candidate. Think of it in terms of purses. If I stick a Gucci label on a knock-off purse, I’m violating the trademark because a purchaser will think that purse came from Gucci. (Or if they bought it on a street corner in New York, they won’t think so but maybe their friends will.) I’m basically stealing the good name of Gucci and using it to my own ends.

For a band or celebrity to sue under this theory requires them to convince a jury or judge that the people listening in the crowd were confused into thinking that Queen endorses Trump. That seems like a long shot in this context, don’t you think?

Carry On, Carry On As if Nothing Really Matters

An interesting wrinkle (interesting at least to copyright nerds) is that Queen is a British band. Just as copyright law in America tends to bend in the direction of encouraging free speech, copyright law in England has a slightly different flavor. They have something called moral rights, which do not exist here. This concept gives the copyright holder much greater control over the association of their work, protecting the reputation and person of the copyright holder. This includes the right to be credited when the work is used and the right to object to derogatory treatment, distortion, or mutilation of the work.

Queen would probably feel that Trump’s use of a portion of their song is mutilation of their song.

I am not a scholar of British law, so I do not know if these laws would apply to Trump’s use of Queen’s songs were they occurring in the UK, but I’m sure the thinking informs the background of Brian May’s objections.


Apple Patents Super Mega On the Fly Copyright Infringement Blocker

Ok. That’s not what they call it. But that is essentially what it is.

Apple patented technology that allows venue owners to use an infrared device that would interact with the iPhone camera and stop people from recording or taking photos.

It’s easy to see who would want this. Adele, that’s who. She seems like she would be the first in line to stop people from bootlegging her concerts.

Instead of using the DMCA to police YouTube, Vimeo, and such sites after the fact, this would enable Adele to belt out “Hello” and block it from being recorded at the outset.

With the rise of live streaming apps like Periscope, you could see how a copyright owner would want this even more. These apps make it possible for someone – anyone – to livestream a concert to thousands who didn’t bother to buy a ticket. This technology could conceivably stop that.

There are serious concerns, though. It’s not hard to imagine situations where such technology would be used on behalf of the dark side. Blocking the bootlegging of copyrighted music or video is one thing. Blocking phones from recording a protest is another. And it’s not hard to imagine police departments having mobile infrared devices to stop people from recording encounters with citizens. That’s just in the United States. Putin would probably put one on every street corner in Russia.

The second issue, of course, is safety. The same device that blocks us from live streaming that Led Zeppelin tribute band would also block concert goers from sending photos and video to police should a catastrophe or terrorist attack happen. And what about apps that use the camera, like barcode scanners or translators?

Finally, and I suspect Apple knows this deep inside their little hearts, blocking the camera would be a sure way to get droves of people to buy Droids. In order for this technology to work, it would have to be universal. The only way to make it universal would be to pass a law requiring all cell phones to have the technology.

Some of these issues could be solved with legislation and/or court cases, in the ongoing march of technology and free speech.

It’s an intriguing idea, one that probably pleases copyright owners from Lin-Manuel Miranda on Broadway to Taylor Swift playing the Hollywood Bowl. Protecting your work at the outset makes sense instead of playing whack a mole after the fact, but we’ll see if it sees the light of day or languishes at the PTO with Apple’s other red headed stepchild patents.

Read more, including Forbes raising the issue of securing secret places from spies with this technology.

Photo: Manel Torralba/Flickr Creative Commons

It all Started with a Story

It all started with a story. I come from a long line of storytellers, my father telling the one about how he convinced his buddies Bigfoot was lurking in the high Sierras in the 1960s, my grandmother telling the one about my aunt vomiting all over the posh Claremont Hotel in front of  horrified society folks, my grandfather twisting gnarled fingers around his cane as he recounted his battle on WWII Peleleiu.

Some of the stories are true as a halftrack on the coral beach. Some grow like cloud castles from just a small grain of truth.

We do it in our own family, telling and retelling stories, sitting around the table, in the car, in front of friends. The time my husband was jailed in Peru (he got out), the time the house got struck by lightning (on our anniversary, no less!), the time the Dali Lama petted my husband’s cheek (he was quirky).

We love stories of others too: the books that inspire (Les Miserables) and amuse (Carry On, Jeeves); the movies that shine light (The Tree of Life) or help us through hard days (Galaxy Quest), the songs that excite (Hamilton’s The World Turned Upside Down) or soar (anything by Whitney Houston!).

As a television and movie critic, I am increasingly amazed at the passion, talent, earned skill, and old fashioned hard work that goes into making stories in the modern era. It takes decades of training, not to mention significant financial investment, to become a filmmaker, a photographer, a songwriter, a screenwriter, a graphic artist, a creator. I have come to deeply respect those who make art and/or entertainment. It’s not easy.

They tell our stories.

Stories can be shared. “You’ll never guess what happened to my aunt’s friend’s cousin!” They can be recommended. “Seriously. Watch ‘No Country for Old Men.'” But it just feels wrong if they are taken.

The Dali Lama petted my husband’s cheek, not someone else’s. Jean Valjean came out of the imagination of Victor Hugo, not some schmuck at a Starbucks.

I think this is why copyright matters to me. There is an integrity to it. An honesty to owning your own work, your own art, your own story, against all the world.

Sure there are nuances and edges to that right, and that’s where the fun comes in.

I’m Rebecca Cusey. I am a third year law student at Antonin Scalia Law School at George Mason, a writer, a lover of art, and a person fascinated with how the law intersects with that. I’ll be blogging here thanks to the good people at the Copyright Alliance. Here we go.