Oxenford: "Music community seemed to favor (and expect) such negotiations" in 2005-2006

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Issue Date: 
Nov 8 2011 - 11:00am

From Issue:

David Oxenford, partner at Davis Wright TremaineSiriusXM's much-publicized move to obtain direct music licenses and thereby avoid SoundExchange has caused an uproar amongst artist unions and SoundExchange (RAIN coverage here and here).

But industry attorney David Oxenford (pictured) points out that SoundExchange's own witness in the Coypright Royalty Board proceedings of 2005-2006 expected this move.

"If the price is too high," stated SoundExchange witness Michael Pelcovits, an expert economist, "parties can (and are almost certain to) negotiate agreements for rates lower than the statutory standard. Thus, a rate that is set too high is likely to 'self-adjust' because of the sellers' natural incentive to meet the market."

Yesterday, SoundExchange president Michael Huppe told the New York Times (here), "Our mission is to maximize the value of the content...We believe that content is already undervalued."

Writes Oxenford, a partner at Davis Wright Tremaine: "In other words, the music community seemed to favor (and expect) such negotiations, before they were against them it in their statements today." Oxenford even argues such negotiations for lower rates outside of the CRB have already happened: the web radio royalty deals following the Webcaster Settlement Acts (more here).


So why is SoundExchange upset over SiriusXM seeking lower rates? "One possible difference is the loss of control," reasons Oxenford. SoundExchange was able to decide which webcaster deals would be precedential in future CRB proceedings (making most non-precedential, meaning they could not be considered in future CRB arbitration).

"Deals that are marketplace deals" -- including any direct deals SiriusXM is able to get -- "would not be afforded the non-precedential status." Meaning the CRB could consider any (presumably lower) rates SiriusXM reaches outside of SoundExchange.

You can find David Oxenford's full article and analysis at his Broadcast Law Blog here.


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SoundExchange is full of hypocrites, thieves, and bandits. When the negotiations favor them, they are in complete agreement no matter what the price. When it doesn't benefit them, they cry foul and act like whining little babies who would co trading themselves only to prevent others from following suit. This is why I believe the whole CRB in 2005 was a complete failure, and this illustrates my point. The rates are too high. The rates continue to be too high, and the more you try to push people in this direction of yet more higher fees, this is going to continue to happen. Soundexchange: your time is over. Give it a rest. I know artists who personally never received a dime from you.

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