Voluntary collective licensing, Humpty Dumpty and the house of cards

Chris Castle is Managing Partner of Christian L. Castle Attorneys, Los Angeles and San Francisco.

If you believe as I do that “voluntary collective licensing” is neither voluntary, collective nor a license, you will be interested in reading “Choruss’s Covenant: The Promised Land (Maybe) For Record Labels; A Lesser Destination For Everyone Else,” a very well-reasoned article by Bennett Lincoff. Bennett is a distinguished member of the music bar, and illuminates several key flaws in the Choruss house of cards. The article may be of particular interest to Canadians as there are striking similarities between the Electronic Frontier Foundation’s “white paper” on voluntary collective licensing, Choruss and the proposal of the Songwriters Association of Canada.

Choruss is a very U.S.-centric idea. Applying the scheme in the U.S. will be very difficult, but it will be near impossible to accomplish internationally. Because Choruss has repeatedly said it will not block and filter, there is no way that Choruss can distinguish between U.S. repertoire, French repertoire, Canadian repertoire, or any repertoire. It will essentially force international rights holders to participate in the scheme whether they like it or not.

I would add one thing to Bennett’s article. We have an agency in the US that licenses sound recordings online. It’s called SoundExchange. The monies collected (by statute or contract) get paid directly to artists. It’s supervised by a joint board of stakeholders and is under heavy scrutiny. I have to wonder if the same would happen with the Choruss or if the monies collected by Choruss would be paid to the sound recording copyright owners and applied to unrecouped balances. This gets you to the same place more or less as Bennett gets to in his questioning of the wisdom of the covenant not to sue, and is an equally likely result. So even if it turns out that Bennett is wrong in practice (although he is certainly right on the facts and the law), I think that it gets you to the exact same place.

I would also clarify one point that Bennett makes in his article. One could come away from the piece with the idea that the major labels have never licensed for p2p. That’s not true. I know because I did the deals. It was very difficult to get the majors to agree a deal for p2p, but it was impossible to get the p2ps to take a license pre-Grokster and most of them preferred to shut down or become ghost ships rather than take a license post-Grokster, with a couple notable exceptions that are currently in litigation or being prosecuted. So that opportunity passed.

And here we are.