The U.S. Copyright office has oversight over copyrights ... obviously. I don't see why it would be impossible or impractical to have copyright-related matters directed to the copyright office first. There, an arbitration panel of TRUE experts would determine if there was a valid claim and/or case. The two parties could then either settle or go to trial. This, by the way, is in many ways similar to the way employment issue are handled in the state of TN (I can't speak for other states). In TN, if you have a legal claim against your employer, it goes to the state employment commission first. They investigate, and if they determine you have a valid complaint, it moves forward - or it is dismissed. You are not allowed to go straight to court, by law.

Songwriters are treated differently in the eyes of the law anyway. Songwriter royalties are the only income stream in U.S. dictated by the Federal government. We are not allowed to negotiate mechanical or performance royalties, even if our cost of business increases or if the marketplace warrants an increase. The mechanical (sales) rate is set by a panel of 3 Federal judges (the Copyright Royalty Board) who meet every 5 years to review rates. The original mechanical rate was 2 cents, set in 1909. It is currently 9.1 cents. Performance royalties, paid to writers/publishers by performing rights organizations (BMI, ASCAP, SESAC). The two largest, BMI and ASCAP, have been under consent decrees dating back to WWII requiring them to go to rate court to have their royalty rates set. Songwriters are under a compulsory license, which means even if I disagree with the amount of money I'm to be paid, I am forced to grant the license if it meets the criteria set by the Federal government. To add insult to injury, most royalty income on a given song comes in one year. Unlike other creators such as book authors, songwriters are not allowed to use income averaging to spread the tax liability over a number of years, which typically throws a songwriter into a near-50% tax bracket.

I've been involved for almost two decades in working with Congress and the Copyright office from matters ranging from capital gains taxes on song catalog sales, to the Music Modernization Act, piracy, and pretty much everything else under the sun regarding songwriting issues. I can state for a fact that vast majority of copyright infringement claims are frivolous or unwarranted. If an arbitration-like panel did nothing else but clear these out, it would be worth it to creators.

The problem with the "jury of your peers" concept as it applies to copyright infringement is this: in the event of a trial, the plaintiff has to prove two things. 1, access to their work by the defendant, and 2) musical similarity. Therein lies the rub - juries shouldn't be put in the position of determining musical similarity. The so-called musicolgists who are brought it as "expert witnesses" in infringement cases are for all intents and purposes just hired guns who testify in favor of whomever hired them.

I'm a fierce defender of intellectual property rights. I believe if your work is genuinely infringed upon, you should have recourse. I don't believe, and I would submit that current events show, the current process is either fair or unbiased, and far too often justice is not even remotely served. I'm familiar with dozens of cases that started out with the plaintiff's attorney saying, in effect, my poor struggling client was ripped off by the greedy, rich songwriter(s) who stole his song. Even if that is complete and utter BS, it's hard to get a jury to discount it, because they don't have a clue about either the music business or copyright law. I've had a U.S. senator tell me that he had read through information on advanced satellite reconnoissance technology that was easier to understand than copyright law.

I could make a pretty strong argument that tort reform is needed across the board in the justice system, but I can think of nowhere it is needed more desperately than in cases regarding infringement.

Last edited by Roger Brown; 08/07/19 09:14 AM.
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