By Holly Sadler
Yesterday, the House Judiciary Committee voted 32-0 in favor of the Music Modernization Act. We’ve written about the Music Modernization Act before, but to give you a brief recap, this bill brings together the vast majority of industry stakeholders (who rarely agree on copyright issues) and forms a consensus on how to address some of the most problematic and antiquated areas of copyright law that negatively impact the music industry.
It allows for the creation of a songwriter database, so songwriters can be fairly compensated for their work and those who play their work can easily identify who to compensate. It also re-aligns the rate standard used to determine compensation for artists to incorporate a more market-based approach and extends this standard to digital music providers like Spotify, Pandora, and others. A huge improvement over the current government price control system that has kept rates artificially low for years.
Additionally, it frees up creative artists to voluntarily designate a portion of their royalties to producers, mixers, or sound engineers and creates a mechanism for this to be done easily. Finally, it corrects a loophole in the 1976 Copyright Act that exempted works created prior to 1972 from being fairly protected under copyright law. Under this bill, classic artists and their copyright holders would finally be compensated – just like contemporary artists – for their works under the new market-based compensation standard.
These are all huge wins for intellectual property and copyright protections. And they are a long time coming. The Music Modernization Act is truly a rarity in today’s climate, bringing together Republicans and Democrats, internet companies (including streaming services), licensing organizations, creative artists, and publishers, unions and free-market advocates. With so many in agreement, as well as a unanimous vote out of Committee, this should be a strong signal to the full House and Senate that the Music Modernization Act is a thoughtfully considered, necessary piece of legislation and should be passed quickly.
Unfortunately, interest groups that are ideologically committed to undermining protections for intellectual property are working feverishly to oppose even these commonsense, consensus-driven reforms. Claiming that they are in it to help artists (a claim disputed the artists themselves), organizations like Public Knowledge, the Electronic Frontier Foundation, and the ACLU have been pushing an amendment requiring rights owners to remit 100% of their royalties to artists, effectively seizing their property and giving them zero incentive to actually license their catalogs. These voices fundamentally do not believe in private property and they cannot allow any property right protection – even one supported by virtually all stakeholders involved – to be established, clarified, or strengthened without calling it into question.
We hope legislators will see through these attempts, recognize that intellectual property is a private property right protected by the Constitution, and pass the Music Modernization Act in its current form. Any amendment that seeks to take away property rights or reduce those rights should be immediately rejected....
By Phil Kerpen
In politics and public policy, sometimes a modest victory is actually a massive missed opportunity. President Trump is at risk of suffering just that kind of setback with the impending completion of negotiations on the new NAFTA – if he fails to heed the brilliant strategic advice of Senators Ted Cruz, Cory Gardner, and Steve Daines.
To date, NAFTA talks have revolved around important but obscure issues like investor-state dispute settlement, local content, and a potential sunset or review clause – hardly the typically visionary stuff of our chief executive.
These three senators have suggested a much bigger idea: a competitiveness chapter designed to codify and make permanent key Trump achievements on permit streamlining, regulatory reform, and workforce development that, once made part of a trade agreement, could be submitted for an automatic up or down Senate vote under fast-track Trade Promotion Authority without the possibility of a Democratic filibuster. The strategy is backed by dozens of conservative leaders.
The package would strengthen the core objectives of NAFTA renegotiation by assuring a more stable, business-friendly regulatory environment, making it more attractive for companies to invest and create jobs in the United States. It would also permanently fix the regulatory process, cementing a Trump legacy of pro-growth regulatory reform and making another Obama-like regulatory assault on the U.S. economy nearly impossible.
Mexico has added a placeholder chapter to the agreement for these provisions, and even if they or Canada objected they could simply note their exception and allow the president to still include these provisions in the enabling legislation submitted to Congress.
The most significant part of the Cruz-Gardner-Daines proposal is a bill called the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require all future costly regulations to be submitted to Congress for approval before they could take effect.
President Trump is a longtime supporter of this concept, telling me in response to a 2015 survey:
"I will sign the REINS Act should it reach my desk as President and more importantly I will work hard to get it passed. The monstrosity that is the Federal Government with its pages and pages of rules and regulations has been a disaster for the American economy and job growth. The REINS Act is one major step toward getting our government under control."
Under President Obama, the REINS Act was needed to stop an onslaught of economically crippling regulations from the alphabet soup of federal agencies. Now that President Trump has stopped and largely reversed that onslaught, it would serve a different but no less important purpose: making those deregulatory accomplishments permanent, locking them in as a legacy into the next administration.
Without the REINS Act, President Trump's highly successful pro-growth deregulatory efforts could prove ephemeral, reversed by the next Democratic administration that could put all the job-crushing Obama regulations back in place...
By Phil Kerpen
Last year the Department of Transportation (DOT) sensibly delayed a held-over Obama regulation that would have mandated an expensive, obsolete technology called dedicated short-range communication in all new cars and trucks sold in America. The Obama rule, according to its own cost estimate, would have imposed total costs of $108 billion and raised the price of every new car by about $300 – for a technology that has already been made obsolete by rapidly advancing developments including a shift toward commercial cellular and sensor-based approaches to vehicle safety.
Worse, DOT use of this spectrum, the 5.9 GHz band, prevents it from being reallocated by the Federal Communications Commission (FCC). The band is adjacent to existing Wi-Fi spectrum, and opening it up would allow high-speed gigabit Wi-Fi on a large scale. With Wi-Fi demand growing rapidly, this additional spectrum is needed to keep this ubiquitous technology working smoothly and to reach higher speeds.
In a rare moment of bipartisan agreement at the FCC, Democratic Commissioner Jessica Rosenworcel and Republican Commissioner Michael O'Rielly noted in a 2016 joint statement: "We believe this slice of spectrum provides the best near-term opportunity for promoting innovation and expanding current offerings, such as Wi-Fi. That’s because combining the airwaves in this band with those already available for unlicensed use nearby could mean increased capacity, reduced congestion, and higher speeds."
Unfortunately, despite widespread reports that DOT was going to not just withdraw the Obama rule but relinquish the spectrum as well, they have not yet done so. In fact, the rulemaking remains open – albeit redesignated as long-term, meaning no action within the next year – and is still listed in the agency's March 2018 significant rulemaking report.
And in what could be indicative of a jurisdictional turf battle, DOT stated in November: "DOT hopes to use the dedicated spectrum for transportation lifesaving technologies."
Of course, vehicle safety is understandably the top priority at DOT – but they have already indefinitely delayed the Obama administration's expensive technology mandate and are now reserving spectrum only on the hypothetical possibility that it may have a safety use in the future. Even though the particular spectrum they are reserving is ideally suited for Wi-Fi use.
There is a straightforward solution. The FCC should open the 5.9 GHz band to general unlicensed use, while committing to work with the DOT to identify an alternative spectrum band for automotive safety use in the event that technology develops that requires dedicated spectrum.
Given the rapid developments of cellular capabilities – manufacturers notably weighed in with the DOT that they prefer a technology called Cellular-V2X over DSRC – as well as sensor-based technologies being rapidly developed as part of the autonomous vehicle investment boom – it is entirely possible that no dedicated spectrum will ever be needed. But reassurance from the FCC that if it is needed, a suitable band will be reserved would smooth over any turf concerns that may be preventing DOT from finally closing the book on...