The clock is ticking on passage of the Music Modernization Act, a bill that could ensure digital music services pay fair royalties to rights holders while giving streaming companies certainty, legal protection and more efficient payment tools.
Although the comprehensive copyright bill technically has until the Congressional term concludes at the end of the year to pass, insiders say that, ideally, the legislation would be buttoned up by Oct. 12, before the House of Representatives adjourns in advance of the Nov. 6 midterm elections.
“We are running out of time,” says Nashville Songwriters Association International (NSAI) executive director Bart Herbison. “A lot of things have to happen sequentially quickly. Our strategic goal is to work backward from Oct. 12.”
“Our game plan is to get this done as soon as possible and we think we have a window to do that before the election,” agrees David Israelite, president/CEO of the National Music Publishers Association (NMPA), which has been leading the effort with the NSAI and The Songwriters of North America (SONA), with assists from other industry groups.
The bill passed the House unanimously April 25 and a revised and amended version came out of the Senate Judiciary Committee June 28. If the bill passes a Senate vote, it goes back to the House for a final sign off.
Dealing with a lame duck Congress after the election is certainly doable, but far from preferable, those involved say. “It’s not predictable what they’re going to do in a lame duck session,” Israelite says. “It’s the more risky strategy we’d prefer not to find ourselves in.” There is also concern that if the Democrats take the House from Republicans in the midterms — which would happen if they turn 23 seats — Republican House members may not sign off on a bill that they initially pushed through as a way to express their disappointment, sources say.
After clearing a major hurdle Aug. 2 when SESAC/Harry Fox parent Blackstone dropped its opposition to a section of the MMA — in part due to a social media blitz by songwriters and artists condemning Blackstone — there are still obstacles in the bill’s way. A number of senators, including Ron Wyden (D-Oregon), Cory Gardner (R-Colorado), Ted Cruz (R-Texas) and Mike Lee (R-Utah) have expressed concerns about the bill, though Cruz’s and Lee’s issues may have been allayed by the SESAC compromise.
Getting SESAC to come around also cost the bill’s proponents three weeks of valuable time that they could have spent whipping up senatorial support, with one source saying if Majority Leader Mitch McConnell had not cut short the Senate’s August recess, the bill might have died because of the time lost.
Now, there’s an additional obstacle: at the end of July, both SiriusXM and Music Choice added more lobbyists to fight portions of the bill they disagree with. SiriusXM is battling a component of the bill’s CLASSICS Act provision which calls for digital and satellite radio to pay royalties for playing pre-1972 master recordings, while terrestrial radio would be exempt.
The Recording Industry Association of America (RIAA), which has visited more than 60 congressional offices this month, is helping in attempts to broker a resolution on that issue. But Israelite is adamant that there is no compromise to be had on Music Choice and SiriusXM’s stance against the rate standard portion of the bill, which would eliminate a “sweetheart deal” they have enjoyed for years.
“They can hire all the lobbyists they want to fight this,” he says, “[but] I’d warn Sirius and Music Choice that they ought to tread carefully because they are dealing now with a creative class that is energized and focused and their entire content depends on those people.” Music Choice did not respond to a request for comment; SiriusXM declined to comment.
Moving forward, the Music Modernization Act has three paths to pass through the Senate: by speedy unanimous verbal consent, which would require all 100 senators to vote yes; the more difficult floor process, which includes time for hearings and would require support of at least 60 Senators (so far 46 Senators have signed on as co-sponsors); or attaching the MMA as a rider to another piece of legislation that is sure to pass. While the preferred way is unanimous consent, Israelite says, “We’re for passing it any way. It doesn’t matter to us, as long as it becomes law.”
When the bill comes to a vote is up to McConnell and two of the bill’s strongest proponents, Senators Orrin Hatch (R-Utah) and Lamar Alexander (R-Tennessee). “Not to speak for them,” Israelite says, “but I can tell you they want to see this pass as soon as possible.”