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David Lowery’s lawyers demand access to correspondence about Spotify’s mechanical settlement

By | Published on Wednesday 20 April 2016


So, more developments in the big battle for sign-ups in the streaming music space. And we don’t mean signing up punters to some £10 a month subscriptions nonsense, no, we’re talking about the real battle for sign-ups here: between the NMPA’s Spotify mechanicals settlement and David Lowery’s Spotify mechanicals class action.

As previously reported, Spotify last month announced a settlement with the US National Music Publishers Association over the streaming service’s failure to pay mechanical royalties to songwriters and publishers according to the terms of the compulsory licence that covers such things Stateside.

Under the deal song rights owners will get any unpaid royalties they are due, a share of a multi-million ‘soz fund’ and a commitment that the streaming service will sort out all of the data issues that have made the payment of US mechanical royalties a right mess across the streaming music sector to date.

The deal followed the filing of two class actions by American songwriters who claim they are owed mechanical royalties by Spotify, the first being led by David Lowery, a musician who has been vocal about artist rights in recent years.

The lawsuits allege that, by failing to comply with the formalities of the aforementioned compulsory licence, the streaming service is liable for copyright infringement, and therefore could be due to pay damages of up to $150,000 per song streamed without licence, which is significantly more than self-published songwriters could expect to see from the damages being paid under the NMPA settlement.

With the lawsuits hoping for class action status, any songwriter whose songs have been streamed without licence by Spotify could benefit from the litigation. However, a condition of signing up to the NMPA negotiated deal is that you don’t then join legal action over this issue, meaning for songwriters it’s either the settlement or the class action. There is a three month deadline for signing up to the former, meaning affected songwriters need to decide pretty damn quickly which route they would rather go.

In a new legal filing, Lowery’s lawyers seem to be claiming that Spotify isn’t playing fair in the race to sign up songwriters. To that end, Team Lowery want to see all the correspondence that has been sent out by the streaming service to potential class members, while asking the court to order that any misleading communications that may or may not have occurred be formally clarified or corrected.

The lawyers go on to say that, in their minds, the core of the Spotify/NMPA settlement is the payment of outstanding mechanicals, which are due to songwriters anyway, even if they don’t give up their right to sue down the line. To that end, the Lowery lawyers reckon, Spotify should have to give their class action a little plug when getting in touch with possibly affected songwriters.

Or, in the words of the legal papers: “Neither Spotify, nor any person acting in concert with Spotify, should be encouraging prospective class members to waive their copyright infringement claims and remedies without providing appropriate information about the pending class lawsuit as well, so that the putative class members may make an informed decision”.

The lawyers also have a good moan about the three-month opt-in period set by the Spotify/NMPA settlement which, as noted, means songwriters need to decide which way to go pretty quickly and – crucially – before the courts have even decided whether or not to actually grant Lowery’s lawsuit class action status.

That fact arguably makes choosing the class action option more risky, as it’s not known if that’s actually an option on the table yet. Which makes the deadline for opting in clever – or sneaky – on Spotify’s part, depending on which side of the table you’re sitting on.

Spotify is yet to respond to the latest legal filing. In its initial response to Lowery’s lawsuit, the streaming firm put most of its efforts into arguing why class action status should be denied.