Thursday, April 21, 2016

Compulsory Licenses Should Require Display of Songwriter Credits

I participated in a symposium in Washington, DC on April 18 on the subject of “moral rights” sponsored by the U.S. Copyright Office and the George Mason University School of Law’s Center for the Protection of Intellectual Property. The symposium’s formal title was “Authors, Attribution and Integrity” and was at the request of Representative John J. Conyers, Jr., the Ranking Member of the House Judiciary Committee. (The agenda is linked here. For an excellent law review article giving the more or less current state of play on moral rights in the U.S., see Professor Justin Hughes’ American Moral Rights and Fixing the Dastar Gap.)
The topic of “attribution” or as it is more commonly thought of as “credit” is extraordinarily timely as it is on the minds of every music creator these days. Why? Digitial music services have routinely refused to display any credits beyond the most rudimentary identifiers for over a decade, and of course the pirate sites that Google drives a tsunami of traffic to are no better.
Yet these services frequently rely on government mandated compulsory licenses (in Copyright Act Sections 114 and 115), near compulsory licenses in the ASCAP and BMI consent decrees, and of course the sainted “safe harbor”, the DMCA notice and takedown being a kind of defacto license all its own particularly for independent artists and songwriters without the means to play. They get the shakedown without the takedown.
Moral rights are typically thought of as two separate rights: “attribution”, which is essentially the right to be credited as the author of the work, and “integrity” the author’s right to protect the work from any derogatory action “prejudicial to his honor or reputation”. They can be found most relevantly for our purposes in the Berne Convention, the fundamental international copyright treaty to which the U.S. signed on to in 1988. (Specifically Article 6bis.)
It is important to understand that the United States agreed to be subject to the international treaties protecting moral rights and that these rights are different and separate from copyright.
Moral rights transcend copyright and protect the author’s persona, or the author’s “honor and reputation.” Copyright is thought of as an economic right, while moral rights continue even after an author may have transferred the copyright in the work. Even so, both the moral rights of authors (and the material rights) are recognized as a human right by Article 27 of the Universal Declaration of Human Rights. Or as Gloria Steinem said, artist rights are human rights.
The question then came up, why should the U.S. government require songwriters to license their works through the compulsory license without also requiring proper attribution consistent with America’s treaty obligations, good sense and common decency?
Why not indeed.
It is important to note that there are certain requirements relating to the names of the authors that are required by regulations for sending a “Notice of Intention” to use a song under the compulsory license which is what starts the formal compulsory license process. The required “Content” of an NOI is stated in the regulations is:
(d) Content.
(1) A Notice of Intention shall be clearly and prominently designated, at the head of the notice, as a “Notice of Intention to Obtain a Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information....
(v) For each nondramatic musical work embodied or intended to be embodied in phonorecords made under the compulsory license:
(A) The title of the nondramatic musical work;
(B) The name of the author or authors, if known;
(C) A copyright owner of the work, if known...
As I suspect based on the various songwriter lawsuits against Spotify over its apparent failures in the handling of these NOIs, the “if known” modifying “the name of the author or authors” is actually translated as “don’t bother” as most of the form NOIs don’t even have a box for that information. This is a bit odd, because if the song is registered with the Copyright Office, the names of the authors most likely are listed in the registration and thus are “known.”
The question for moral rights purposes, of course, is not whether the music user sends the names of the authors in the NOI-presumably the copyright owner already knows who wrote the song. The question is whether the music user displays the names of the authors of a song on their service, or better yet, is required to display those names so that the public knows.
This seems a very small price to pay when balanced against the extraordinarily cheap compulsory license that songwriters are required to grant with very little recourse against the music user for noncompliance. (Short of an unimaginably expensive federal copyright lawsuit against a rich digital music service, of course.) As the Spotify litigation brought by songwriters is demonstrating, these services only have about a 75% compliance rate as it is, if that much.
It is pretty commonplace stuff for liner notes to include all of the creative credits. So who is behind the times? The artist releasing a physical disc with all of these credits, or the digital music service with its infinite shelf space that doesn’t bother with 95% of them-particularly the multinational media corporation dedicated to organizing the world’s information whether the world likes it or not? And we’re not even broaching the topic of classical music, where the metadata and credits on digital services are dreadful.
In fairness, I have to point out that iTunes has made great strides in cleaning up this problem voluntarily, at least for songwriters. Which goes to show it can be done if the service wants it done.
Digital services should care about whether the songwriters are fairly treated as ultimately songwriters create the one product the services have built their business on-songs. There is an increasing level of distrust between songwriters and services, so proper attribution can help to restore trust.
As it stands, a generation or two now have little knowledge of who wrote the songs, who played on the records, much less who produced or engineered the records they supposedly “love” and who definitely contribute to the $8 billion valuation of services like Spotify.
It seems that at least the failure to accord songwriters their moral right of attribution could be fixed in the regulations without need of amending the Copyright Act by requiring the collection and display of songwriter credits at least if those credits are part of a copyright registration. This might have the additional benefit of encouraging songwriters to register their works.
Google will no doubt vigorously lead the charge to oppose this change because that is their customary knee jerk reaction that often colors all digital services with a uniquely Googlely brush. Even so, I think this is a worthy path for both songwriters and services to pursue and could solve a number of accounting and recordation problems utilizing information that is readily available-to everyone’s advantage in furthering vital transparency. And as we know, transparency begins upstream.
Why? Because as the Universal Declaration of Human Rights teaches us, “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

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Conyers Praises $188 Million Hardest Hit Fund Allocation for Michigan Homeowners


WASHINGTON – The U.S. Treasury Department announced today that it will allocate an additional $188 million in Troubled Asset Relief Program (TARP) funds to the Hardest Hit Fund (HHF) program in the second phase of funding.  The additional funding into the HHF program, which is the result of recent bipartisan cooperation in Congress, will assist homeowners who are struggling to keep a roof over their heads and help stabilize impoverished neighborhoods.

Dean of the U.S. House
of Representatives
John Conyers, Jr.
After the funding was approved by Congress, Rep. John Conyers sent a letter to Treasury Secretary Jack Lew, advocating on behalf of Michigan as the Obama administration designed a process for distributing the funds between states. He urged the Administration to take into consideration Michigan’s “disproportionate economic challenges resulting from the Great Recession,” including continued high unemployment and underemployment, and the ongoing impact on Michigan families of the drop of housing prices caused by the economic collapse.  Rep. Conyers also highlighted the “expeditious manner that Hardest Hit Fund resources have been disbursed in our state,” as the funds enabled Michigan to conduct more blight removal than any other state, in addition to providing important assistance with those at risk of losing their homes due to property tax foreclosure.

After the second phase of funding was announced, Rep. Conyers made the following statement:
“The people of Michigan and I are deeply grateful for the work of the Treasury Department and our Michigan Congressional delegation for this significant infusion of funding to the Hardest Hit Fund and to Step Forward Michigan.  As the aftermath of the Great Recession continues to cause severe hardship for many Michigan families, I am thankful that Secretary Lew and the Obama Administration shared my perspective that the additional funds should provide special assistance for our state. Due to this fair formula devised by the Department of the Treasury, the first phase of new funding provided Michigan with one of the largest portions of funds, per capita, of any state receiving assistance. In the second phase, which was announced today, Michigan will receive the largest allocation of any state. I look forward to witnessing the impact of this funding as our communities continue to heal and rebuild.”

The process announced by the Department of Treasury allocated $1 billion using a formula based on state population and the state’s use of their HHF allocation to date. In the second phase that was announced today, Treasury focused additional resources on those states “with significant ongoing foreclosure prevention and neighborhood stabilization needs, a proven track record in utilizing funds, and successful program models to address those needs,” mirroring the criteria Rep. Conyers urged Treasury to consider in his February 2016 letter.

The Hardest Hit Fund was created in 2010 to provide $7.6 billion in targeted aid to 18 states and the District of Columbia, deemed hardest hit by the economic and housing market downturn.  The program has funded numerous initiatives in Michigan that have made significant progress for the people of Michigan. As of January 17, Michigan’s Blight Elimination Program had successfully demolished 8,022 blighted properties, the most of any state in the country. And aside from California (which has a population four times greater than that of Michigan), Michigan has used the Hardest Hit Funds to assist the greatest number of homeowners of any state, surpassing 30,000 in January 2015. 
Visit the Treasury Department’s website for more information on how the Hardest Hit Fund is helping communities and homeowners across the country.

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Conyers: Charges in Flint Water Crisis are not the Final Resolution to Long-Standing Inequities


WASHINGTON – Today, Representative John Conyers, Jr. released the following statement in response to the charges filed against three government officials (two state officials and a city employee) in Michigan in connection with the Flint Water Crisis.

Dean of the U.S. House
of Representatives
John Conyers, Jr.
“Today’s news demonstrates the regrettable consequences of encouraging state and local workers to put the health and safety of Michiganders behind cutting costs, pleasing industry, and fighting federal authorities.  The decision to charge low-level employees is one that may give the people of Flint some small sense of reckoning—but under no circumstances should these charges or this trial be seen as bringing either closure or justice to the people of Flint.”

“Charging these individuals and even convicting these individuals may be the legally correct course, but it does not one single thing to address the fundamental inequality that communities like Flint and Detroit have to face every single day—and will do so regardless of the outcome of this case.  Tomorrow, they will still live in toxic homes, send their children to toxic schools, and be forced to plan for a future with a dwindling safety net and fewer ladders of opportunity.”

“The simple truth is that we are seeing action on Flint because there is a trail of evidence that leads to the conservative ideology currently in power. For those who have pushed a deregulatory, anti-environment agenda, it appears that their outrage and compassion begins and ends with their own legal culpability—and their support vanishes once the blame is fixed on someone else. Were that not true, we would see the governor taking a substantial part of that billion-dollar surplus and rebuilding Flint’s infrastructure.  Were that not true, we would see the state investing in Detroit’s literally toxic public schools in the way that they invest in the schools where they send their children.  Were that not true, we would see the Attorney General’s office stop wasting resources fighting to permit mercury pollution in Michigan.

“While I want to see people held accountable, I am worried that people are being charged today so that tomorrow the problem can be swept under the rug and the conservatives running Lansing can again focus on their most important issues: eliminating worker and environmental protections, cutting public support services, and usurping the political power of urban and low-income communities.  We cannot afford any more of the governance that has brought places like Flint and Detroit to their knees, and charging low-level civil servants will not prevent that.”

Rep. John Conyers, together with 31 original cosponsors, introduced H.R. 4754, the Emergency Financial Manager Reform Act of 2016 to address unchecked decision-making powers that appointed emergency financial managers have in financially distressed cities which cause 
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Friday, April 15, 2016

Conyers: Time to rein in Michigan’s emergency managers

By John Conyers, Jr.
A task force appointed by Gov. Rick Snyder confirmed last month what we had suspected all
Dean of the U.S. House
of Representatives
John Conyers, Jr.
along — the water crisis in Flint was caused by emergency management. It’s time Michigan reins in its out-of-control emergency manager law. The questions now are: how our state got to this point, and what the lessons for reform are going forward.
When Snyder had just been elected governor and the Republicans took control of the Michigan Legislature in 2011, one of their first orders of business was to radically expand the Michigan financial distress law. The new statute granted EMs unprecedented powers to take over all aspects of local government — not just finances — and unilaterally reject collective bargaining agreements. Under Snyder, the frequency of EM appointments greatly increased due to the Great Recession and state-imposed cutbacks in local revenue sharing.
The result has not only led to public health disasters, such as Flint and the Detroit Public Schools, but numerous instances of conflicts of interest and abuse. This includes documented mismanagement by EMs in Pontiac (potential loss of $1.4 million in federal grant money), Highland Park (terminated for making $200,000 in unauthorized payments to himself), and Benton Harbor (exceeded budget and failed to make required pension contributions).
Worse still is the law’s encroachment on our constitutional rights, most notably by disproportionately targeting African-American voters. A recent academic study found that while 73 percent of black residents were subject to emergency management over the last decade, only 21 percent of whites were covered over the same period.
The EM law has also been found to contravene constitutional protections for collective bargaining agreements. Professor Kenneth Klee, a pre-eminent bankruptcy expert, testified at a 2011 forum I held that “no prior legislature has had the audacity to legislate the unilateral termination, rejection, or modification of a collective bargaining agreement” and that the law “is violative of (the U.S. Constitution’s) Contracts Clause.”
I, along with U.S. Reps. Brenda Lawrence and Dan Kildee, recently introduced legislation responding to the most problematic features of the EM law. We had little choice given that Snyder and Republicans in Lansing had previously overruled a voter referendum repealing the statute.
The “Emergency Financial Manager Reform Act” would authorize the U.S. Attorney General to withhold a small portion of law enforcement funds from the state if the EM fails to adequately protect against discrimination in voting, harm to public health, conflicts of interest and mismanagement, or unilaterally denying collective bargaining rights. Adoption of these incentives would allow the state the ability to assist financially troubled local governments without jeopardizing our citizens’ safety or constitutional rights.
We cannot retroactively undo the damage already done in Flint or Detroit’s schools, but we can help make sure the unaccountable emergency managers are not permitted to inflict further harm on our citizens.
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Statement of the Honorable John Conyers for the Hearing on H.R. 4924, the “Prenatal Nondiscrimination Act of 2016"

Dean of the U.S. House
of Representatives
John Conyers, Jr.
H.R. 4924, the “Prenatal Nondiscrimination Act of 2016,” is the latest attempt to erode the constitutional right to an abortion guaranteed by Roe v. Wade more than 40 years ago.
Among other things, the bill would make it a crime for a doctor to perform an abortion if she or he knows that the procedure is being done because of the race or sex of the fetus or the race of one of the parents, regardless of viability.
As I noted in the 112th Congress, when we last considered this bill, the bill is deeply flawed for a number of reasons.
To begin with, the bill is patently unconstitutional because it bans certain pre-viability abortions.
Roe is clear that a woman has an absolute constitutional right to have an abortion prior to fetal viability.
This legislation is simply yet another deliberate attempt by anti-choice activists to undermine and ultimately overturnRoe
In addition, this measure has nothing to do with civil rights. 
For instance, the bill’s proponents offer no evidence that women are choosing race-selective abortions.
Indeed, these proponents do not even bother to make the claim that African-American women, for example, choose to abort their fetuses because the fetus or one of the parents is African-American.
They do not make this argument because it is absurd on its face.  Yet, that is exactly the type of conduct that the bill supposedly prohibits.
The bill’s proponents try to sidestep this obvious flaw by arguing instead that the bill is needed because abortions are disproportionately common in communities of color.
But to the extent abortions are performed disproportionately in minority communities, the disparity points to broader socioeconomic inequalities that banning abortion will not solve.
The African-American and Hispanic communities are underserved when it comes to prenatal, maternal, and child health care services. 
This lack of access to reproductive health care results in African-American women being 3 to 4 times more likely to die from pregnancy-related causes than white women.
And, barriers to effective contraceptives and effective sex education, among other things, leads to the unintended pregnancy rate for African-American women being 67% versus 40% for white women.
Minority communities lack access to adequate health care, yet rather than addressing these disparities, the bill only reinforces them through its criminal penalties, which will create a chilling effect on doctors serving these communities.
Finally, I reject in the strongest possible terms the slander that Planned Parenthood and other abortion providers are inherently racist. 
Planned Parenthood is a leading provider of high-quality health care for women, serving 2.7 million Americans a year.
It provides many critical health services, such as annual wellness exams, cancer screenings, contraception, and the study of sexually transmitted diseases.
Dr. Martin Luther King, Jr. strongly supported the work of Margaret Sanger, Planned Parenthood’s founder, and emphasized the importance of access to family planning resources for African-Americans. 
On accepting the Margaret Sanger Award from Planned Parenthood in 1966, Dr. King stated:
There is a striking kinship between our movement and Margaret Sanger’s early efforts. She, like we, saw the horrifying conditions of ghetto life.  Like we, she knew that all of society is poisoned by cancerous slums. Like we, she was a direct actionist—a nonviolent resister. . . .[African-Americans] have no mere academic nor ordinary interest in family planning. They have a special and urgent concern.
I concur with Dr. King and reject the sponsors’ preposterous and offensive argument that legalized abortion and its providers are racist.

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 We Need to Build a Voting-Rights Movement

The time has come to translate widespread outrage about voter suppression into momentum for an actionable voting-rights agenda.


By John Conyers, Jr. and Barbara Arnwine

Dean of the U.S. House'
of Representatives
John Conyers, Jr.
The spring of 1966 was a harrowing yet hopeful period in America’s electoral history. In March of that year, the Voting Rights Act survived a Supreme Court challenge from the attorney general of South Carolina. Civil-rights campaigners could finally breathe at least a tentative sigh of relief as public officials across the country began initial preparations for the first federal election following passage of the landmark law for which King and countless others had toiled for years.

Fast-forward 50 years, and the scene is just as harrowing, but—tragically—far less hopeful. Voter-suppression tactics in 2016 are spreading like a virus in our body politic. In the first presidential primaries since the Supreme Court gutted Section 5 of the VRA and opened the floodgates for passage of voter-suppression laws in states, the impacts are already evident. Whereas voting rights were ascendant in 1966, voter-suppression tactics are spreading in 2016. Whereas Congress was moving in the right direction in 1966, in 2016, it’s often conspicuously absent.

The challenge this year—the 50th anniversary of the implementation of the VRA

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—isn’t just protecting free and open access to the ballot; it is also rekindling the fire that forced federal action on voting rights. This means reigniting a national movement for restoration of the Voting Rights Act, vigorous federal enforcement of electoral rights, and a reversal of anti-democratic state voter-suppression laws. With our country at a political turning point, time is of the essence.
As The Nation’s Ari Berman and others have methodically reported, the far-right’s well orchestrated voter suppression strategy—focusing on voter ID laws, purging of voter rolls, polling place reduction, and rolling back early voting requirements—has actually resulted in a rekindling of Americans’ 1960s-style resolve in defense of the right to vote. Look at Aracely Calderon, a naturalized citizen from Guatemala, who stood at the back of a 700-person, four-block line and waited five hours to vote in the Arizona primary. Or Dennis Hatten, an African-American Marine veteran, who endured seemingly endless bureaucratic hurdles to get a Wisconsin photo ID after being told his other forms of identification—including a veteran’s ID—were insufficient under that state’s new draconian voter-ID law. There is no shortage of courage and grit in the face of these abuses.
However, we need more than individual resolve to overcome the systemic injustice of voter suppression. We need a broad-based movement for legislative change. Many voter-ID laws—which 36 states have now enacted in varying forms—will have their first test in the 2016 general election. An analysis by Nate Silver for The New York Times shows that these laws can decrease turnout by between between 0.8 and 2.4 percent—a potentially decisive amount in highly competitive elections. Other academic research supports anecdotal findings that voter-ID laws have disproportionate impacts on minorities and immigrants, expanding the participation gap between white and nonwhite members of the electorate.
The time has come to translate widespread outrage about voter suppression into momentum for an actionable voting-rights agenda. The first step is building awareness of the legislative fixes that are available right now.
In the immediate aftermath of the Supreme Court’s disastrous Shelby ruling—which paved the way for widespread state voter suppression by eliminating the requirement that jurisdictions with histories of discrimination obtain Department of Justice preclearance for any changes to voting laws—there was hope that Congress would act to mitigate the damage. Then-House majority leader Eric Cantor traveled to Selma with Representative John Lewis’s civil-rights pilgrimage anddeclared his intention to find a bipartisan solution. Unfortunately, in the wake of Cantor’s departure, the Republican Congress has balked at even discussing the issue. Both the bipartisan Voting Rights Amendments Act, HR 885, and the Voting Rights Advancement Act, HR 2867, are viable options for Congress to turn the tide against state-based voter suppression tactics. While not a panacea, these proposed post-Shelby VRA fixes would help end voter-access crises of the kind already on display in Arizona, North Carolina, and elsewhere by restoring the preclearence requirement in up to 13 states.
Voter protection is just the start of a legislative agenda for election integrity–which must also address issues like modernization of voting machines, absentee balloting, willful misinformation, felon disenfranchisement, partisan election administration, untrained election staff, and many others. On April 21, we’ll be participating in a special briefing on Capitol Hill—including the Rev. William Barber, Ari Berman, and others—to draw attention to the crisis of election integrity and to identify policy options for restoring our democratic institutions. This is the first of a series of efforts to bring the rising passion for voter protection to the halls of Congress.
The cause of voter protection is unique in that it can unite people from across the disparate areas of the progressive movement. Whether someone cares most about civil rights, campaign finance, climate change, reproductive rights, or global peace—fair and transparent elections are an absolute requirement for success. Election protection demands a fusion movement.
We’ve seen what happens when people are mobilized and organized in strategic action to defend the right to vote. Though African Americans were nearly absent from voter rolls in the deep south in the early 1960s, by late 1966, just four of the traditional 13 Southern states had African-American voter-registration levels under 50 percent. By 1968, even Mississippi had a 59 percent registration rate among African Americans. That progress was directly attributable to an indefatigable people’s movement that achieved tangible legislative change.
This year, voting-rights advocates are rightfully rushing to address the short-term barriers to the ballot box—getting people the required IDs, ensuring the presence of adequate polling sites, and protecting people from being purged from voter rolls. This is essential work. But we must also seize this moment and build broad momentum for a long-term election integrity agenda that can take hold in municipal buildings, in statehouses, and on Capitol Hill. 
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Wednesday, April 13, 2016

Bill requiring warrant for emails takes step forward in the House

Dean of the U.S. House
of Representatives
John Conyers, Jr.
The House Judiciary Committee on Wednesday approved a bill to protect the private emails of Americans from the government, marking a small step forward for one of the most widely supported bills in Congress. 
The committee, on a unanimous 28-0 vote, approved the Email Privacy Act, which would require that law enforcement obtain a warrant before forcing a technology company to hand over a customer's emails or other electronic communications, no matter how old they are.  
"This committee quickly reached consensus that those proposals were unworkable, unconstitutional and sometimes both," ranking Judiciary Democrat John Conyers Jr. (Mich.) said. 
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