The Digital Music Performance Royalty Apocalypse: Fakler Speaking at SXSW Music Conference

SXSW2014I will be giving a presentation titled “The Digital Music Performance Royalty Apocalypse” at the SXSW Music Conference next Wednesday, March 12, at 2pm.   The title does not imply that my speaking at the conference is, itself, a sign of the coming apocalypse.  Rather, I will be discussing the history, current state of affairs, and hot topics looming in the next year, relating to the various copyright license fees paid by digital music streaming services.  Topics will include the upcoming Webcasting IV Copyright Royalty Board proceeding, the “problem” of pre-1972 sound recordings, and the recent attempts by some of the major music publishers to selectively withdraw their catalogs from the ASCAP and BMI repertories for certain digital music service licensees only.

More info here:


MP3tunes Summary Judgment Decision: Defendants Only Liable For Specific Songs In Takedown Notice That Were Not Taken Down

Creative Commons License photo credit: Tac Anderson

The Southern District of New York has issued its ruling in the Capitol Records v. MP3tunes case, granting partial summary judgment for each side. The bottom line is that MP3tunes and its founder, Michael Robertson (also the founder of, are only liable for the infringement of sound recordings that were specifically identified in DMCA takedown notices but not removed from users’ accounts.

One amazing nugget hidden in the first footnote of the decision (page 12), is the court’s holding that the DMCA safe harbor applies to pre-1972 sound recordings, even though such recordings are not protected by federal copyright. This holding, if noticed and followed by Justice Kapnick, should destroy the claims brought by UMG Recordings against Grooveshark in New York State court. UMG brought these claims in state court, limited to common law copyright infringement for pre-’72 recordings, as an attempted end-run around the DMCA.

There are lots of other points of interest in the decision, which I will get to soon. In the meantime, I wanted to post the decision as quickly as possible for your reading enjoyment: