David Lowery has encouraged songwriters not to exclude themselves from his current class action lawsuit against Spotify – and challenged assertions made on this very website regarding perceived downsides to the litigation.
In a guest blog on MBW earlier this week, CD Baby CEO Tracy Maddux criticized those lawyers who are currently suing a range of streaming platforms – including Spotify, TIDAL and Google Play – for alleged non-payment of mechanical royalties.
“Join [these class action cases] and you might get paid if you win,” said Maddux. “Don’t join; your pool of potential royalties just got diluted to pay a settlement.”
Not true, says Lowery.
Responding to Maddux’s blog, Lowery told us: “You don’t ‘join’ a class action. A federal judge decides there is a class. And songwriters opt in when/if there is a settlement.
“There is no possible mechanism under copyright statutes that would let your royalties be diluted by a settlement. And most importantly there is no ticking clock as Maddux seems to imply.”
Songwriters, though, won’t be able to participate in a settlement resulting from Lowery’s suit if they choose to instead opt-in to a $30m settlement agreed between the NMPA and Spotify.
They are not permitted to join both.
There is something of a ticking clock associated with the NMPA deal – it’s given writers until the start of July to opt-in, after which time they will lose the opportunity.
“There is no possible mechanism under copyright statutes that would let your royalties be diluted by a settlement.”
Lowery’s problems with Maddux’s article didn’t end there. He also took particular issue with this line:
“Legal action, such as the recent songwriters looking to get certified as a class action, will in the end only distribute others’ money unfairly and to the detriment of all value creators.”
Said Lowery: “Unless Tracy Maddux has a crystal ball, he can’t predict what a US federal judge will do. I personally would not loudly and publicly predict that a sitting US federal judge is going to ‘distribute others’ money unfairly and to detriment of all value creators’. Unless of course I lived outside of the US and never planned on visiting.
“Unfortunately (for us) Maddux lives in the US. So this guy either has extremely large cajones or is not very smart. Could be both as they are not mutually exclusive.
“But then again I’m just a rock and roll musician. What do I know? We musicians are a more cautious and circumspect lot than Mr. Maddux. We stick to throwing television sets off of hotel balconies and things like that, stuff that will only rouse the local constabulary, not the feds.”
“The choice for songwriters is clear: A transparent court supervised process? OR a secret backroom deal?”
Lowery added: “The major publishers, the NMPA, The Harry Fox Agency and Spotify would really like the class action to go away because they don’t want the courts snooping around in their apparently very messy businesses. Mr Maddux appears to be aiding them by spreading misinformation to songwriters.”
“Despite Mr Maddux’s distortions and pseudo-intellectual bullshit about markets, the choice for songwriters is quite clear:
“A transparent court supervised process? Or a secret backroom deal cut by trade organizations and major publishers. Make your choice songwriters.”
David Lowery launched his $150m class action lawsuit against Spotify in late December last year.
In addition to the accusation regarding unpaid royalties, Lowery’s legal team accuses Spotify of “profiting off its own unlawful conduct” – a reference to possible interest earned on any withheld money.Music Business Worldwide