The FezGuys predict: Punk music's gonna get good again, now that corporate heads are so obviously running the United States. Please refer to last month's copy of EQ or go to: <www.fezguys.com/columns/052.shtml> for the intro and glossary relevant to this column.

Broadcast Music, Inc. (BMI) is the #2, "We Try Harder" member on the music performance collection society totem pole. Let's see what they have to say about online publishing.

A useful site search feature can be found at: <www.bmi.com/search/tree.asp>. We search on "royalties" and find <www.bmi.com/about/library/brochures/royalty/print.asp>, "a convenient, easy-to-read format (for) most of the information you want to know about the method your BMI royalties are calculated and distributed." We learn, among other things, that "BMI operates on a non-profit basis. All available income is distributed, except for a modest reserve."

In a paragraph titled "Payment for Uses in Unmonitored Areas" we learn that BMI collects license fees from, among other places; hotels, restaurants, nightclubs, sports arenas, theme parks, airlines, jukeboxes and retail stores. The next sentence is interesting. "If the administrative cost involved in collecting the performance data for music used by these licensees is not economically feasible, BMI may choose an appropriate surrogate, such as radio or television performances, for the distribution of the fees." It's the same situation described in our last column. Namely; using radio and TV performance data to decide how much money goes to which song writer. This presents a big problem. If your music is used anwhere else but radio or TV (hellooooo, Internet!), this payment scheme doesn't work.

Most of the information in this section of the web site revolves around radio airplay, not surprising in a company with the word "Broadcast" in the title. BMI wants us to know they have a worldwide presence but dampen our confidence by coyly asking for our help. "Although BMI has an extensive foreign royalty tracking system, we always welcome information from you regarding foreign translations and details regarding foreign sub-publishing agreements." Would this mean a break in the fee if we do the footwork? Unlikely.

The site carefully addresses online music use. We learn that "BMI licenses certain Internet sites and is seeking to license many more." They're on the ball for sure. A caveat quickly follows: "As this is a very new medium...policies still are being established..." True enough and what are they doing about establishing these policies? We read on: "To the extent that music usage information has been submitted to us, we have distributed...royalties for performances of music over the Internet on sites licensed by BMI. For further developments in this area, please contact your local Writer/Publisher Relations office." So. Don't delay, call or email them in Atlanta, Los Angeles, Nashville, New York or London. Contact info on the site can be found at <www.bmi.com/about/contact.asp>. And, like many artists who have turned to the Internet to help close the gap of not living in big cities, if you don't live near any of those cities, pick one out of a hat and contact 'em anyways! Remember, where consumer relations are concerned, every letter or phone call translates to representing hundreds or even thousands of people. Consider it your call to arms to demand the current establishment deliver fair reporting on (and payments from) use of your music on the Internet.

Let's Pretend We're A Webcaster

For now let's pretend we're a webcaster and wish to license some BMI songs for use online. We go to the BMI Digital Licensing Center <https://dlc.bmi.com/dlcmenu.asp>, by clicking on: "I Am A Webcaster" from the main site. We are invited to take advantage of an automated system called (yuk) "Klik Thru." (The domain <klikthru.com>, listed on the WWW as "under construction", doesn't appear to be owned by BMI.)

First we'll take a look at BMI's Music Performance Agreement Fee Calculator at <https://dlc.bmi.com/dlcCalculateChoose.asp>. We have two choices: the "License Fee Calculator" (for "commercial entities that generate revenues from the operation of the web site") and the "Corporate Image License Fee Calculator" (for music use to "promote your (primarily) off line business"). We''ll go with the former. Clicking through opens a dialog box asking for our "gross revenue." A-ha. Now we see how it is. Let's say we want songs to play while visitors look over our web site (mostly pictures of kids and dogs and nice sunsets out our kitchen window). Let's say we work a day job and make $45K a year. We enter that figure into the box. Next we are asked for annual estimated "page impressions" (defined as: "a transfer request for a single web page"). Let's pretend 1200. Just friends and family, right? We are next asked for estimated annual "music impressions" (defined as a: "Page Impression of a Music Page multiplied by the number of music file titles on that page"). We plug in 300. Why not? It's a nice round number and maybe we like a lot of music. Then again maybe we're bored. Are you bored? Of course you are! Well buck up little camper, the best is yet to come. The two "impression" criteria are calculated together to form what BMI calls "Music Area Revenues" (MAR). MAR is defined as: "Gross Revenues multiplied by a fraction the numerator of which is the total number of Music Impressions for the Web Site and the denominator of which is the total number of Page Impressions for the Web Site."

You got that? This must be the *NEW* new math. What it appears to be saying is: regardless of whether anyone listens to the music on your page or not, the fact that it's there and available means BMI will charge you money.

We calculate based on the our phony facts. Looks like we'll be annually owing BMI a sum total of $1115.63. Now, how about if we tell the truth (for once) and say our faux web site generates no money whatsoever (while keeping the "impressions" info intact). Calculating the numbers this way shows we would owe BMI absolutely nothing. How about if we up the "impressions" figures to the hundreds of thousands? Still zip. Millions? Zero. Billions? Goose egg. This can't be right. They would never allow us to use music for free on a web site that recieved millions of visitors annually. Before we jump for joy and start hurriedly uploading music on our free site we have to ask ourselves: "Does this little BMI web site calculator really mean anything?" Or is it a fake "interactive" feature designed to get us hooked so we can be billed later? At the bottom there's a bit saying: "If your estimated annual revenue does not exceed $25,000 you are eligible to use our KLIK THRU License. The above fee calculators apply to the KLIK THRU license." Curiouser and curiouser...Let's see what happens when we apply for the (yuk) Klik Thru License.

Applying for the "Klik Thru" License

So, we're hypothetical webcasters drooling for some mainstream pop to stream. It's the middle of the night and we want it now. We "klik thru." The next page informs us we can "electronically enter into a binding license agreement with BMI" but that we must be legally "authorized to bind the entity (our streaming web site) for which the license is sought." The term "binding" is always a swell way to feel good about doing business. Who knows what we're agreeing to? We "klik" on and come to a big sign-up page requiring all our pertinent data. We make a bunch of shit up. Then they ask if our server is in the United States. We pretend it's not and we're instantly dumped from the sign-up process (understandable since BMI only handles US licenses). We go back and do it all again. When we come to the server location dialog box we tell 'em it's in Arkansas. Why not? Next they want to know if we're affiliated with any "FCC-licensed radio stations." We say no. Why go thru more dialog boxes than we have to? Then they want to know if our fictitious web site is affiliated with a "non-profit educational institution." Again we say no. Another box pops up asking if we plan to "sell downloadable full-length recordings." Definitely not. We're wondering why they didn't put all these questions on one page. Next they want to know if we "plan to generate revenues (i.e. ads, sponsorship, subscription fees, etc.)." We don't. We provide our online services free. Yet another (and kinda ridiculous) question: "Do you intend to operate your web site primarily for the purpose of promoting your company's corporate image?" What corporate image? It's "no" again. Finally we get to the end of the line and what an end it is. On <https://dlc.bmi.com/dlcmenu.asp> it is unequivocally stated that a webcaster has "access to music performance licensing 24 hour a day!" as well as being able to "get your web site music performance agreement in minutes!" Now, however, after answering a bunch of questions designed to assist them in learning about the webcaster demographic we're greeted by this sad statement: "A BMI Sales Representative will contact you within the next few days regarding your Internet license agreement." A few DAYS!?! What the hell happened to the "agreement in minutes"? Liars, that's what they are. Of course we lied about our contact info, too, but at least it means our investigation into their services has saved us a possible midnight call from lawyers. We feel like sending them a bill for our time.

It feels pretty safe to say that BMI's web site and online music publishing tools are all about BMI's convenience and BMI's time. Thanks for nothing, gang. The FezGuys are very disappointed with you. We're the first to admit that online licensing is a new and crazy concept for an old-guard company, but from what we've seen, no significant progress has been made in the past few years. Plus, the web site is rife with typographical errors. You've got a long way to go, dear.

The final third of the Big Three of music performance collection societies was originally called the "Society of European Stage Authors & Composers" but moved to Nashville and changed their name to the above-mentioned acronym. Like the previous two collection societies (ASCAP and BMI) SESAC's heavy-handed rhetoric lets us know right away that online music publishing should be left to the professionals. "The system required to compute compensation is based on many factors, including music trade publication chart activity, broadcast logs, computer database information, and state-of-the-art monitoring." God knows we little musicians could never handle it. As Barbie once said: "Math is hard!" Calling itself the most "most technologically adept" of the Big Three societies the SESAC web site turns out to be a woeful mix of "under construction" messages and suggestions on where to go in the site for information but providing no direct links to these recommended areas. Ever heard the term "hypertext links," gang? There's no way to become a member online. By explanation the web site offers that: "SESAC has a selective process." That means you've got to apply. They don't want just anybody. But that's probably a good idea. Quality, not quantity, right? For songwriters who want someone else to take care of everything (so you don't need to worry your pretty little head about big, confusing numbers) this organization might be an appropriate choice.

If you are interested in being involved in managing your career, however, this company presents a few conundrums. If, as they say, their web site represents "SESAC's continuing strategy to lead performing rights in technological development" then maybe SESAC shouldn't use white text on a black background. Really folks, your site design and navigation is awful. This should be a tool for songwriters and interested licensees, not a flash-filled sci-fi experience for kids.

Helpfully though, a link on the front page offers: "Simple, Comprehensive Online Licensing" and "Complete Online Works Registration." Clicking on either of these two links opens a message that links us straight back to the front page. Again, no direct link to the area they're talking about. So we start again at the top and click on "Licensing." This gives us several choices. Which one? Let's try "General." Yes, buried amongst the 30-odd examples of general licensing (Country Club, Cruise Ship, Dance Studio, Family Show, Festival, etc...) is the word "Internet." We open the General License and try signing up. We see "Internet/New License." We click through to "complete an online license." This downloads an Acrobat .pdf file to our desktop to fill out that gets sent automatically back to SESAC site. An option to print and snailmail the form is also available. After completing the form we'll apparently be emailed in a "few days" confirming our license. Minimum annual fee is $75.00 but it's impossible to know just how real fees will be calculated.

There's also a "Report Unlicensed Establishments" link so you can play snitch if you like. Be careful what you say, eyes are everywhere. George Orwell would be proud to know just how accurately he predicted our present. The SESAC web site reminds us that "When you purchase a record, tape, compact disc, DVD or similar product you are granted the authorization for a non-public performance, such as in your home or car." That means any other use by you (including streaming over the Internet) of copyrighted music is billable by the collection societies and subject (under U.S. copyright law) to big fines if you break those laws.

The issue of fair distribution of monies collected (both on and offline) by these three big collection societies remains unsatisfied. Though boasting online licensing and pulishing agreements on their web sites, these organizations do not appear to have followed suit by providing clear tracking and payment/billing using new media technologies. The FezGuys aren't convinced that the system is equitable or even common-sensically oriented to online use. As the president of BMI says on the company's web site: "The long term solution for (tracking online music use) will be a form of watermarking or encryption" and "we are already behind the times." The former statement remains, at this date, unproven. The latter is true enough. Collection societies need to solicit the opinions of the online community, to say nothing of modifying their explantions for real world clarity and understanding. Or maybe they're afraid that if we really knew how they operate, they would have no business? We feel all three of the big performance collection groups could stand doing entire redesigns of their web sites with their rank and file customers in mind. Information on joining, how payments are determined and executed, as well as information on how to license their catalog should be simple to find (not to mention possible to do affordably and fairly). This is the stuff that matters!

Next month we will dig into the oddly monopolistic Harry Fox Agency and its parent, the National Music Publishers' Association, as well as take a look at the major labels' answer to online music publishing (Soundexchange) represented through its industry strongarm, the Recording Industry Association of America.

As first reported in FezGuys #007, this is still a darned good resource: <www.music-law.com>. A very practical Q&A series. Recommended.

For all things government-related to the subject: <lcweb.loc.gov/copyright> The final word.

The FezGuys welcome critique, agreement, support and approbation. <www.fezguys.com>