Under the compulsory license for the use of sound recordings - the license which allows Internet radio services to use all legally recorded sound recordings by paying a royalty set by the Copyright Royalty Board - the designated collection agency can, once each year, audit a licensee to assess its compliance with the royalty requirements. Under the law, when the collective decides to audit a company, it must notify the Copyright Royalty Board, who then gives public notice of the fact that an audit is to take place. The Copyright Royalty Board has just announced that SoundExchange has decided to audit Last.FM. Based on a number of public statements, SoundExchange has been citing Last.FM as an example of problems with royalties - contending that Last.FM had paid royalties of only a couple of thousand dollars a year, under the Small Webcasters Settlement Act, just before selling out to CBS for over $200 million. Given SoundExchange's tough talk about Last.FM, this notice of an audit is not surprising. SoundExchange's focus on this company illustrates the difficulty of valuing music use, and the different perceptions of music users and copyright holders as to what that value should be.

In past years, SoundExchange has audited a number of webcasters - usually large webcasters. As SoundExchange must bear the cost of the audit unless a significant underpayment is discovered, it is unlikely that more than a few companies will be audited each year. However, as SoundExchange has made such a big deal of Last.FM, with witnesses on performance royalty issues mentioning it at Congressional hearings, and representatives mentioning it on various industry conferences (including SoundExchange President John Simson's reference to the company on a panel on which we jointly appeared at Canadian Music Week earlier this month), many expected that an audit would be forthcoming.

The complaint of the sound recording copyright holders (primarily the record companies), is that services like Last.FM use sound recordings as the building blocks of their business, and can amass large audiences based on the use of the sound recordings, yet the record companies don't get a share of the "windfall" that may result when these businesses are sold. Of course, this argument assumes that the value of these services is primarily in their use of the music. Under their theory, it would seem that all a service needs to do is start playing music, and audiences (and eventually riches) will result. Instead, most digital media companies will argue that there is far more to creating a successful Internet service than simply starting to play music online. If you just had to provide the music and watch the audiences roll in, Internet radio would be a huge business that anyone could enter - and the litany of failed or struggling Internet radio and digital music delivery companies should not exist. To me, it seems that a service, to be successful, must offer something more than just music, whether it is the community aspects of a Last.Fm or iMeem, or the sophisticated music selection software provided by a service like Pandora. These sorts of services take much investment and much time to develop audiences, and even longer to develop significant revenue. And, while these companies may eventually be sold to a company that may better develop and monetize their audience, as happened with Last.FM, the record companies will receive significant royalty revenue if the new owners are successful in the development of the potential of the service. If they are not successful, one wonder whether there really was any significant value received from the use of the music, and if there was no real value, should there be significant royalties?

The complexity of questions such as these, and the differing perception of the value of music (whether it has intrinsic value on a per performance basis, or whether it really only has value to the extent that it leads to the development of revenue) lead to the debates over the appropriate royalties that the services should pay - such as the debate over the Internet radio royalties that has been going on for the last year. Given the inherently conflicting views of the value of the music, and the contribution of the other elements of a service, the arguments are difficult to resolve, as there may be no common ground on which agreement can be reached. Nevertheless, as the industry matures, and there is more and more evidence as to how these services can monetize their use of music, perhaps more rational royalty models can arise - or so one would hope.

David Oxenford

David Oxenford is a partner in the Washington, DC office of the law firm of Davis Wright Tremaine LLP. This post originally appeared on DWT's Broadcast Law Blog, and is posted on DMW with the author’s permission. This information is provided for educational purposes only and should not be relied on as legal advice, and should not substitute for competent legal advice from your own attorney.

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