David Lowery, Cracker Frontman and Artist Advocate, Explains His $150 Million Lawsuit Against Spotify: Q&A

David Lowery 2016
Jason Thrasher

David Lowery

"I hope they just clean up their act."

Just before the New Year, Camper Van Beethoven and Cracker frontman David Lowery dropped a bomb on the music business in the form of a proposed class-action copyright-infringement lawsuit against Spotify. The suit, filed on Lowery’s behalf by the law firm Michelman & Robinson, asserts that Spotify lacks mechanical licenses for many of the songs it’s streaming. (In addition to paying public performance royalties through ASCAP and BMI, streaming services like Spotify also need to get mechanical licenses for songs, either by striking direct deal with publishers or using the statutory license.) The lawsuit says Spotify could potentially be liable for up to $150 million in damages.

    Over the past few years, Lowery, who still records and tours with both Cracker and Camper Van Beethoven, has become the most prominent artist voice on creators rights. He writes sharp blog posts for The Trichordist, delivers engaging presentations at media-business conferences, and shares his thoughts through a variety of social media. The New York Times said he “has come to represent the anger of musicians in the digital age.”

Lowery says he has nothing against streaming services – he just wants to make sure they pay musicians and songwriters fairly and accurately. He’s certainly succeeded in making the issue urgent. On January 8, singer-songwriter Melissa Ferrick filed another proposed class-action suit against Spotify, which may be joined with Lowery’s. Two months later, Lowery’s lawyers filed another proposed class-action copyright infringement lawsuit, against Rhapsody, on behalf of Lowery and co-plaintiffs and fellow songwriters Victor Krummenacher and David Faragher. A little more than a week later, the National Music Publishers Association (NMPA) reached a $30 million settlement with Spotify, an agreement that could serve as a model for deals with other streaming services -- and could potentially also complicate efforts to have the court certify a class for Lowery’s lawsuits. 

Lowery believes that the problems with streaming services can only be solved by a class-action lawsuit, however. “If we’re going to have a fair market,” Lowery says, “we have to start with fundamental rules on how to use songs.”

In April 2012, you gave a now-famous speech at the SF Music Tech Summit, “Meet the New Boss, Worse Than the Old Boss?” Why did you charge into the debate over copyright and the future of the music business at that particular time?

It was right around the time of SOPA and I saw that whole thing play out online -- the torches-and-pitchforks mob. Camper Van Beethoven is an extraordinarily tech-savvy band: Jonathan Segal worked at Pandora, Victor Krummenacher is an art director at Wired, Chris Pedersen is an IT security guy, and I have a background in mathematics and computers. So I was going there and I said, ‘I want to do this other speech.’

My point was that we’re not waiting for a digital ecosystem to develop -- it’s already here. It has 3 pillars: piracy; streaming, whether fully licensed or not; and digital downloads. And for all three, artists are paid less. This was controversial, compared to the crack cocaine of tech optimism at the time.

Were you surprised that the digital revolution didn’t turn out better for artists?

Yes. I thought we would lose more to piracy but I also thought that the benefits of disintermediation would accrue more strongly to artists -- we would be able to sell directly to our fans and make more money.

Let’s talk about your class-action copyright infringement lawsuit against Spotify. Did you have any conversations with them before you filed the lawsuit?

For about two years I remember thinking, ‘How are my songs up there? Surely Spotify isn’t using my songs without a license.’ I didn’t consider filing a lawsuit against them until I saw the Victory Records blow-up in October [when Victory discovered that it wasn’t getting paid all of the mechanical royalties owed to its publishing division and Spotify pulled the music in question].

In early December we [Lowery and his legal team] started exchanging letters with Spotify. It’s possible we could have done a settlement, but I don’t think it would have been fair to all songwriters. I’m not sure anyone believes this but I really did decide to do this on behalf of indie songwriters who publish and manage their own catalogs. This wasn’t going to get fixed for them without a class action.

Did Spotify attempt to address the problem?

You mean settle? We talked about talking about a settlement. But my sense was it would not have been a broad settlement -- more like buying me off. Around the same time, they took a fairly aggressive stance in correspondence to our distributors and other third parties with which we do business. As a result, to me, they didn't seem serious about a settlement. Our idea is let’s have a third-party come in and audit this. 

Spotify is larded with unlicensed tracks. And it still will be, even after the NMPA settlement. It is an infringement machine. What investors in Spotify own is a copyright infringement machine. My understanding is that the only ways to get rid of all the infringement is to go the class action route.

What’s your impression of the NMPA settlement?

I haven’t seen a copy of the settlement, only news about it from the NMPA and Spotify. But this is clear: The NMPA settlement talks about unpaid and unmatched royalties, but that’s not the fundamental problem. The fundamental problem is that Spotify has a ton of unlicensed tracks, and the vast majority of the unlicensed tracks are from non-NMPA publishers. 

Maybe the settlement should make them use a database, not create a better one. A database is not a bad idea, but the first problem is getting services to use the databases that already exist. Apparently they didn’t. I am in the Copyright Office, HFA, BMI and ASCAP databases. The settlement should be, ‘If you don't have the data don't use the song.’

Couldn’t indie songwriters just join the settlement?

You mean should indie songwriters join the settlement and hence add their data to yet another database? I suppose so. But we are talking about a lot of independently published music. You’d have to have millions of songwriter-publishers opt in to the NMPA settlement. That would take a really long time, and in the meantime it doesn't solve the underlying problem because it doesn’t get rid of the underlying infringement. The only way out of this is a class settlement.

What do other musicians think of what you’re doing? Different creators have all kinds of feelings about Spotify, but artists and songwriters have generally been nervous about standing up for their rights.

I can’t think of a single musician who has come up to me or emailed me who isn’t like, ‘Go get ‘em.’ It would be different if this were a personal lawsuit, but it’s a class action.

And remember, my whole career was based on I-don’t-give-a-shit. I got a bunch of hippie kids from Santa Cruz together [in Camper Van Beethoven] to play ska and country in front of punk rockers. I do my own thing and not everybody likes it.

Streaming is now the biggest source of revenue for recorded music. Are you worried about killing the goose that lays the golden eggs?

Maybe a streaming service that didn’t put thousands of unlicensed songs up would fill the gap!

I’m not trying to put Spotify out of business. There’s a moral hazard to letting them off the hook, but I hope they don’t go out of business -- I hope they just clean up their act. If one guy like me can bring down a Goldman Sachs-backed firm valued at $8 billion, then, trust me, it’s not my fuck-up.