Archives for 2013

ASCAP Court Rules for Pandora: Music Publishers Cannot Partially Withdraw Songs From ASCAP Catalog for Only Certain Users

Judge using his gavel In a major victory for Pandora (and all other digital music services), the ASCAP Rate Court has ruled this evening that ASCAP’s recent changes to its governing rules, which purported to allow music publisher members to selectively withdraw their catalogs from the ASCAP repertory for certain digital music services while keeping the songs in the repertory for other licensees (such as broadcasters, bars and restaurants), violated the ASCAP consent decree and therefore any purported withdrawals were ineffective.

This whole mess started a couple of years ago.  After a series of losses in the ASCAP and BMI Rate Courts (in cases where ASCAP and BMI sought outrageously high royalty rates and were rebuffed by the Courts), various ASCAP members wanted to find a way out from the scrutiny provided by the Rate Courts.  [Read more…]

Second Circuit Vacates Google Books Class Certification

Judge using his gavelThe Second Circuit has vacated the district court’s class certification ruling in the Google Books case (Authors Guild v. Google), holding that Judge Chin must rule on Google’s fair use defense before considering class certification.  The panel, comprising Judges Leval, Cabranes and Parker, noted that Google’s objections to class certification “may carry some force,” but ruled that the fair use defense should be resolved first, and that such resolution “will necessarily inform and perhaps moot [the Second Circuit’s] analysis of many class certification issues.” [Read more…]

Supreme Court Refuses to Hear Appeal on Constitutionality of Copyright Royalty Judges

Angry JudgeYesterday, the United States Supreme Court denied certiorari (i.e., refused to hear an appeal) on the D.C. Circuit’s decision holding that appointment of the original Copyright Royalty Judges violated the Appointments Clause of the Constitution, but then judicially re-writing the statute to “cure” the problem by making the Judges susceptible to termination at will by the Librarian of Congress.  That decision also led the D.C. Circuit to remand the Webcasting III rate determination back to the Copyright Royalty Judges, because unconstitutional appointment of the original Judges was void ab initio.  Now that cert has been denied, that remand can proceed.

Notably, all three of the original Judges who issued the Webcasting III determination are now retired.  The entire panel has turned over in the past year or so.  Only time will tell how the new Copyright Royalty Judges will  deal with the remand.

Fakler quoted in Andrew Sullivan’s The Dish

This is fun.  One of my quotes on the ways in which record companies abuse recording artists was picked up and highlighted in Andrew Sullivan’s The Dish.

Fakler Quoted in Buzzfeed Article on Record Company Hostage-Taking

Music

I was quoted in a Buzzfeed article published yesterday.  The article deals with the problems that sometime occur when a record label loses interest in an artist and refuses to release his or her new recordings.

photo by: Douglas Heriot