by Thomas Campbell*
In the last decade, the music industry has gone digital. Gone are the days of dusty records, bulky cassette tapes, and physical CDs. Music listeners today rely on digital streaming services to listen to their favorite songs.[1] Digital music streaming is a booming industry, accounting for approximately three-quarters of all music industry revenue.[2] It is inexplicably clear that the digital music streaming revolution has arrived.
As the music industry has evolved, so has the need for progressive music law. Historically, the application of U.S. law to the music industry has been complicated.[3] Artists and industry executives have struggled to reach any legislative compromise—until now.
On October 11, 2018, President Donald Trump signed the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (the “MMA”) into law.[4] Surprisingly, this new bill received overwhelming bi-partisan support. Democrats, republicans, major music labels, content creators, artists, and tech companies have all endorsed the MMA.[5]
The MMA is designed to patch many of the legal gaps that have emerged in the wake of the digital streaming revolution. The Act is an extensive piece of legislation, loaded with complex legalese and music industry jargon. The MMA is a combination of three previously introduced bills.[6] To best understand this Act, it is helpful to conduct a title-by-title breakdown.
First, Title I of the MMA updates music industry licensing and royalty standards.[7] This first title revises the issuance procedure for mechanical licenses—a license granting “[a streaming service] permission to reproduce a piece of music for sale or consumption.”[8]
Title I also establishes the Mechanical License Collective.[9] The collective will be comprised of seventeen members, including: music publishers, professional songwriters, and nonprofit trade association members.[10] These members will oversee the issuance of mechanical licenses, including the issuance of compulsory blanket (mechanical) licenses.[11] Blanket licensure is designed to streamline the licensing process, and protect digital streaming services from costly copyright litigation.[12]
Title II of the MMA, also known as the Classics Protection and Access Act,[13] corrects a blatant federal copyright loophole. Up until this point, federal copyright law did not adequately protect pre-1972 sound recordings.[14] Now, the MMA will protect these “classic” pre-1972 recordings—for a period of ninety-five years—before transitioning them into the public domain.[15]
Finally, Title III of the MMA creates a more direct mechanism for the distribution of streaming royalties. Upon the receipt of a letter of direction, royalties can now be distributed to a “producer, mixer, or sound engineer who was part of the creative process that created a sound recording.”[16]
The Music Modernization Act is an impressive display of functional nonpartisan lawmaking. As the use of digital music streaming continues to rise, the MMA will provide the music industry with a modernized legal framework.
* J.D. Candidate, 2019, Florida International University College of Law.
[1] The (current) top three subscription-based global music streaming services are: Spotify, Apple Music, and Amazon Music, respectively. See Mark Mulligan, Mid-Year 2018 Streaming Market Shares, MIDiA Research (Sept. 13, 2018), http://www.midiaresearch.com/blog/mid-year-2018-streaming-market-shares/.
[2] See Joshua P. Friedlander & Matthew Bass, Record Indus. Ass’n of Am., Mid-Year 2018 RIAA Music Revenues Report (2018), https://www.riaa.com/wp-content/uploads/sites/2/2018/09/RIAA-Mid-Year-2018-Revenue-Report.pdf.
[3] See, e.g., Court Finds MP3.com Liable for Copyright Infringement, Wall St. J. (Apr. 28, 2000, 6:24 PM), https://www.wsj.com/articles/SB956941367110076167; Sonam Rai & Eric Auchard, Spotify Hit with $1.6 Billion Copyright Lawsuit, Reuters (Jan. 2, 2018, 4:46 PM), https://www.reuters.com/article/us-spotify-lawsuit/spotify-hit-with-1-6-billion-copyright-lawsuit-idUSKBN1ER1RX; Matt Richtel, The Napster Decision: The Overview; Appellate Judges Back Limitations on Copying Music, N.Y. Times (Feb. 13, 2001), https://www.nytimes.com/2001/02/13/business/napster-decision-overview-appellate-judges-back-limitations-copying-music.html.
[4] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551, 115th Cong. (2018).
[5] See Bill Donahue, Trump Signs Music Modernization Act into Law, Law360 (Oct. 11, 2018, 1:58 PM), https://www.law360.com/articles/1091412?utm_source=rss&utm_medium=rss&utm_campaign=articles_search.
[6] The three combined bills are: “the Music Modernization Act of 2018 (S.2334), the Classics Protection and Access Act (S.2393), and the AMP Act (S.2625).” Copyright All., H.R. 1551: Music Modernization Act (MMA) Summary 1 (2018), https://copyrightalliance.org/wp-content/uploads/sites/2/2018/10/CA-MMA-2018-senate-summary_CLEAN.pdf.
[7] See Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551, 115th Cong. §§ 101–06 (2018).
[8] Ben Sisario, New Way to Pay Songwriters and Musicians in the Streaming Age Advances, N.Y. Times (June 28, 2018), https://www.nytimes.com/2018/06/28/business/media/music-copyright-digital-services.html.
[9] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 § 102(d)(3) (2018).
[10] Id. § 102(d)(3)(D).
[11] Id. § 102.
[12] Sisario, supra note 8.
[13] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 § 201 (2018).
[14] Dave Davis, Music Modernization Act of 2018 Becomes Law, Copyright Clearance Ctr. (Oct. 11, 2018), http://www.copyright.com/blog/music-modernization-act-introduced-house-senate/.
[15] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 § 1401(a)(2) (2018).
[16] Id. § 302(a)(5)(A).