Choruss' Music Tax Plan: Bait-And-Switch

from the ah-the-fine-print dept

Wed, Mar 18th 2009 10:17am — Mike Masnick

Back in December, when we revealed how Warner Music, through consultant Jim Griffin and his new organization "Choruss," were quietly pushing a music tax on universities, Warner and Griffin snapped back angrily, telling us it wasn't fair to criticize the plan, because it was still being "discussed." Yet, as we then asked: where is that discussion and why isn't it taking place with the actual stakeholders? To date, the answer has been a near deafening silence. Despite having reached out to both Griffin and Warner Music directly, neither has shown any interest to actually engage in any form of conversation.

Now we're beginning to learn why.

While we discussed, in detail, why any such music tax is problematic, the details coming out make it clear that this is much worse than originally imagined. In fact, it's so bad that it can be described accurately as a bait-and-switch program designed to make people (1) pay lots of money (2) believing they're now free to file share and then find out that (3) file sharing systems will still be sued out of existence and (4) the users themselves, despite paying, will still be liable for massive lawsuits. It's basically a plan to give the record labels tons of money, handed over by universities (so users have no chance to opt-out) without actually changing anything.

After months of silence on what he was working on behind closed doors and in backrooms, Griffin recently gave a prepared speech supposedly revealing some "details" on the plan -- but as IP attorney Bennett Lincoff points out, what Griffin and Choruss are proposing is to pull the wool over universities and the public's eyes. The plan, as we originally pointed out, isn't a license: it's merely a covenant not to sue -- and that leads to all sorts of problems.

First, considering that the RIAA has been cutting back on lawsuits, that's not particularly meaningful. It'll still pushing for 3 strikes policies that will cut users off from the internet, even if they've paid up through Choruss. Furthermore, as was made clear in the speech, the RIAA won't stop trying to shut down file sharing systems. So, people who think this is a good idea because it will let them use The Pirate Bay or Limewire may discover after getting locked into this program that the lawsuits continue and those services keep getting shut down. Next, since it's just a covenant for the labels not to sue, rather than a license, it doesn't cover all of the other rightsholders, such as songwriters and the music publishers -- meaning that those who file share will still be wide open to lawsuits from those parties.

This is quite a scheme that the record labels and Griffin may pull off:

Convince universities to buy into the program with no input from students. Universities will buy into it because they think they're "helping" deal with the "problem" of file sharing... and to avoid Congress forcing them into such agreements
Universities pass the cost on to students (of course), so students are forced to pay for this
Record labels get a big chunk of money for no good reason
New expensive bureaucracy (Choruss) gets set up to siphon more middleman cash away from musicians
Record labels don't do anything different, since they already have started moving away from suing individuals (sorta)
The public thinks that file sharing is now legal
Record labels continue to sue and shut down favorite file sharing networks, leaving only crappy, limited and expensive "approved" systems
Individuals who paid up start getting sued by other rightsholders not covered by this agreement and not getting any money from it

And most of the press will eat it up as a revolutionary agreement whereby the record labels "legalize" file sharing.

Now can you understand why Griffin and Warner Music aren't open to any real conversation and will slam anyone who actually offers to take part in a conversation? A real conversation might bring out these issues, and that's the last thing the record labels want. They want everyone to believe they're working to make file sharing legal, when all they're doing is constructing a massive wealth transfer from people to the labels providing almost no benefit to consumers at all.

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Filed Under: bait and switch, covenant not to sue, jim griffin, licensing, music tax, universities
Companies: choruss, riaa, warner music group

66 Comments

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Todd, 18 Mar 2009 @ 10:41am

Buck stops with musicians
This won't end until the musicians decide to stop it. Suing fans has to be ultimately laid at their feet.

They are represented by the labels and by extension groups such as the RIAA and collection agencies (Choruss).

Musicians shouldn't get a free pass on this issue.
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- Mike, 19 Mar 2009 @ 12:18am
  
  Re: Buck stops with musicians
  Very few musicians are successful enough to have lawyers and sue people. It's the recording industry with the big bucks and the out of date business models that are doing this.
  [ link to this | view in chronology ]
- M-RES, 19 Mar 2009 @ 8:05am
  
  Re: Buck stops with musicians
  eh? You seem to be labouring under the impression that the musicians have ANY SAY WHATSOEVER in the machinations of the labels. The artists don't even have a say in how they're marketed to the public - that's how solidly they're locked out of power by contractual obligations to the labels.
  [ link to this | view in chronology ]
R. Miles, 18 Mar 2009 @ 11:02am

180 turn around in full motion.
Well, hell. If this is truly the plan, you can bet I'm now against it.

But, in truth, the more I thought about the tax, the more I disliked it.

Distribution companies just need to go away. I'm so tired of all the fingers trying to pull more from the pot, the only result is increased costs to consumers.

Screw them all. Long live piracy until the artists start realizing the mistake in using these idiots while whining about them.

Will things ever change?

*sigh*

I guess 2009 is another dry year of no new purchases.
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- Anonymous Coward, 18 Mar 2009 @ 11:17am
  
  Re: 180 turn around in full motion.
  There's always used CD shops. Thanks to the first sale doctrine, the labels and musicians don't get a cut.
  [ link to this | view in chronology ]
  - R. Miles, 18 Mar 2009 @ 11:25am
    
    Re: Re: 180 turn around in full motion.
    CD? You mean that worthless plastic disc that contains 6 songs I don't like for the 1 I do?
    ;)
    
    Yeah, I haven't bought a CD in over a decade.
    
    I have been looking up indie bands offering their music for free. Some good stuff out there.
    
    But this nagging feeling of giving nothing bugs the hell out of me, but at the same time, not a dollar per song.
    >:(
    [ link to this | view in chronology ]
    - cvpunk, 18 Mar 2009 @ 2:18pm
      
      Re: Re: Re: 180 turn around in full motion.
      I actually like what quoteunquoterecords.com is doing.
      You can download the music for free and give a donation to support the bands and label. I don't know how well it is working for them... but, it is something new.
      [ link to this | view in chronology ]
- mrfleish, 8 Apr 2009 @ 7:37am
  
  This plan is lame
  Choruss is being considered by my university (a major div 1 school) and I'm a student being consulted on it through our student government. I would not be serving the students if I supported this crazy music tax.
  
  to them I say: argggg
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Jesse, 18 Mar 2009 @ 11:02am

I agree. I will not support musicians from these labels. They signed with them and therefore in my eyes agree with these practices.
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- M-RES, 19 Mar 2009 @ 8:09am
  
  Re:
  No, you're wrong. Many of the affected artists will have signed with small indie labels who were bought out by majors if one or two of the bands started to get somewhere. It happens all the time. So the bands didn't necessarily sign with the majors who are pushing this, but have ended up stuck in contracts with them and in massive debt to them.
  [ link to this | view in chronology ]
- sedna, 20 Mar 2009 @ 1:47am
  
  Re:
  Jesse wrote: "I agree. I will not support musicians from these labels. They signed with them and therefore in my eyes agree with these practices."
  
  I hate to say it, but your statement exemplifies several common misconceptions.
  
  Signing with a major label typically includes contract terms such as:
  * If you make any money off of your music outside of what we control, you have to give us that money and pay penalties
  * If you sign with another label, they have to pay us what we say you are worth
  * Any music you produce while signed with us is our property, not yours
  * Your band name / brand recognition / etc is ours, not yours
  * You have absolutely no say in our business decisions
  * If you wish to dispute any terms of this contract, you will have to pay our lawyers for all of the time they take to settle the dispute
  * All production costs, studio time, tour booking, and marketing expenses come out of your paycheck, and we have the final say in all of these areas
  * If you sue us for anything, even if you win, you are expected to pay our lawyers for their time
  ... and on and on. Obviously, many of these terms are unconscionable, and terms like these are regularly ruled unenforceable by judges. Unfortunately, fighting contracts like these is something best done by unions or people with a lot of money. If musicians trying to get out there had plenty of money, they would not be signing with labels in the first place. There really are no musicians' unions that have gained any traction, and groups like the RIAA do not represent musicians, but rather the major labels. The musicians who are already signed with a major label and start to make enough money to fight the ridiculous contracts usually get bought off in one way or another: "You're unhappy with your contract? Hey, how about a new Lexus and we'll forget you had a complaint?" "Here's $500K if you don't take us to court over you contract, because the publicity will raise awareness of how crappy we treat the musicians that keep us employed" As for other musicians, don't forget that they might be making $100K a year --- but also getting billed $70K a year for production costs et al...
  
  Major labels all have very similar contracts; picking one label over another is almost pointless. It's a collusion.
  
  It typically takes 5-10 years of playing local shows several times a week before you have a big enough fanbase to be able to put out records and/or tour without assistance from a major label. Thankfully, the Internet is starting to change this a *lot* --- and the major labels aren't happy, because it's making their business methods obselete.
  
  In short, musicians have to be very tech-savvy, clever, persistent, and/or have a law degree to ever hope to stop cooking hamburgers at McDonald's and be able to write and develop music full-time.
  
  The RIAA does not represent musicians. The RIAA's lawyers could not care less about the musicians that keep them employed.
  
  Major labels somehow seem to be immune to all attempts to beat them with a cluestick.
  [ link to this | view in chronology ]
dave, 18 Mar 2009 @ 11:04am

Desperation!
ALL the majors need to generate or collect revenue from any means possible. WMG is obviously getting more needy. Your coverage and recent article are spot on.

Artists always have and always will get screwed by the majors, there is no transparency in accounting. Throw MySpace into the mix here too - go ask a major label artist what Royalty Payment they got from MySpace - ZERO -it's all going to the labels.

Artists NEED a unilateral body to reprsent them, and NOT ASCAP or BMI - until this happens artists are at the bottom of the totem pole.

Go ask the twits at mnajor labels why they have jobs, the majority don't realize the money to pay them comes from SALES generated by ARTISTS - these last ditch efforts by WMG is another way of all the staffers keeping their asses on seats fo another year.
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Devonavar, 18 Mar 2009 @ 11:11am

I don't think you're being quite fair...
I don't think you're being quite fair to Griffin. A covenant not to sue is exactly the kind of thing the labels need to do to repair their damaged reputation. I have a problem with using a "covenant" as a bargaining chip with universities, but a pledge from the labels not to attack their customers and to acknowledge tha they have erred is exactly what I need to hear from them if I'm ever going to start buying from them again.

I don't want to hear about licenses or business agreements from the labels. I don't care whether or not downloading is legal or whether the labels have "legalized" certain uses. What I want is a human acknowledgement by the labels that the market has changed and that they are going to make an effort to serve, rather than squash that market. To date, Mr. Griffin has come closest of any of the major labels as far as I can see. I'll admit that he's still a long way off.

I don't envy Mr. Griffin his job. He has been put at the helm of a label run by established interests with (formerly) established ways of doing business, and been told: "Fix it". He doesn't have the luxury of starting from scratch, and he has to justify his actions (preferably with a guarantee of revenue) for every new approach he tries. As far as I can tell, he's been made captain of a ship that was going down well before he arrived.
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RD, 18 Mar 2009 @ 11:17am

And now..
Cue WeirdHarold and the Industry Apoligitards(tm) in 3, 2, 1....
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- R. Miles, 18 Mar 2009 @ 11:30am
  
  Re: And now..
  +1 for this comment, which made me laugh, especially when it's right on cue.
  [ link to this | view in chronology ]
- Weird Harold, 18 Mar 2009 @ 11:36am
  
  Re: And now..
  Cue the f-ing idiots who would rather swallow half the story whole than actually THINK for a second.
  [ link to this | view in chronology ]
  - R. Miles, 18 Mar 2009 @ 11:43am
    
    Re: Re: And now..
    I see you don't practice what you preach.
    
    Who's the f-ing idiot again?
    [ link to this | view in chronology ]
  - Killer_Tofu (profile), 18 Mar 2009 @ 11:50am
    
    Re: Re: And now..
    You sound upset that he nailed your timing so perfectly.
    I too would give him a +1.
    It was placed so perfectly that I wouldn't let it past me that you pasted it yourself, just so you would have somebody else to argue against.
    But, chances are, with as much as you have been here lately to try to expand and promote horrible laws these days, it was somebody else, who just had flawless timing.
    
    And no, the ISP is not a host. They do not own your computer or put up your webpage for you. They are a dumb pipe, as it should be. So no on the hosting.
    [ link to this | view in chronology ]
    - Weird Harold, 18 Mar 2009 @ 12:10pm
      
      Re: Re: Re: And now..
      Again, a question of real world experience versus theoretical chatters.
      
      http://www.chillingeffects.org/dmca512/faq.cgi#QID125
      
      One of the issues that comes into play is at what point an ISP providing connectivity (such as comcast, example) because an actual web host by permitting and giving transit to hosted data. In some ways, this sort of issue is why ISPs tend to have a "no servers" rule for their clients, which is occassionally enforced.
      
      The true reality is that most ISPs don't want to take the chance of finding out they would be liable, and will take steps to get their client to remove the offending content. Upstream providers will often do the same thing, limiting their potential liablity by making good faith efforts to resolve the issues.
      
      The desire or intent of this sort of wide spread DMCA notice is to get the desired actions. No ISP is going to be happy fielding hundreds of DMCA notices for a customer, no bandwidth provider wants to deal with it, and they will do what is needed to make sure they aren't part of it.
      
      Most of the provisions of DMCA have yet to have a full day in court, and most companies just don't want to be a test case.
      [ link to this | view in chronology ]
      - R. Miles, 18 Mar 2009 @ 12:42pm
        
        Re: Re: Re: Re: And now..
        The true reality is that most ISPs don't want to take the chance of finding out they would be liable, and will take steps to get their client to remove the offending content.
        From the link you posted:
        Question: Does a copyright owner have to specify the exact materials it alleges are infringing?
        
        Answer: Proper notice under the safe harbor provisions requires the copyright owners to specifically identify the alleged infringing materials, or if the service provider is an "information location tool" such as a search engine, to specifically identify the links to the alleged infringing materials.
        ***
        Sorry, but I disagree to a point. I can understand an ISPs position if, and only if, copyright violation does occur, but this is becoming the rare, not current reason for DCMA notices.
        
        Most ISPs instantly take down once a DCMA is presented, especially those being filed illegally (unethically). Case in point: Fair use copyright and DCMA.
        
        I wouldn't object if the DCMA is true, but every day, we see more stories regarding the misuse of DCMA, rather than its true intent.
        
        I don't think you read the information contained in the document you linked.
        
        When news spreads that a record label forces a video down from YouTube (fair use) using DCMA, information regarding shady industry practices becomes ever more clear.
        
        And for the life of me, I can not fathom why you would ever defend these industries.
        [ link to this | view in chronology ]
        
        Newbelius, 18 Mar 2009 @ 1:05pm
        
        Re: Re: Re: Re: Re: And now..
        @R.Miles...
        
        In reading your comment, it appears that you have equated service provider to ISP. An ISP is the provider of Internet service, not a hoster of content. The ISP does not take down offending content in response to a DMCA takedown notice, but rather the host does. All ISPs are service providers, but not all service providers are ISPs. You appear to be thinking of a content-hosting service provider.
        [ link to this | view in chronology ]
        
        R. Miles, 18 Mar 2009 @ 2:57pm
        
        Re: Re: Re: Re: Re: Re: And now..
        Doh! Thanks for clarifying. Can't understand why I used ISP.
        Tired, I guess.
        :P
        [ link to this | view in chronology ]
      - george, 18 Mar 2009 @ 2:58pm
        
        Re: Re: Re: Re: And now..
        Wonders what part of "A service provider shall not be liable for monetary relief" is too hard to understand?
        [ link to this | view in chronology ]
      - Anonymous Coward, 18 Mar 2009 @ 9:23pm
        
        Re: Re: Re: Re: And now..
        One of the issues that comes into play is at what point an ISP providing connectivity (such as comcast, example) because an actual web host by permitting and giving transit to hosted data. In some ways, this sort of issue is why ISPs tend to have a "no servers" rule for their clients, which is occassionally [sic] enforced.
        
        Hate to tell you this genius, but web sites, such as this one, are run on web "servers". And web "servers" typically connect to the internet through ISPs. (e.g. Techdirt's ISP appears to be Tier Four, Inc.) If ISPs didn't allow servers there wouldn't be much content on the Internet. How did you think it worked, magic pixie dust?
        
        ISPs don't allow servers? You are so full of it.
        [ link to this | view in chronology ]
- Anonymous Coward, 20 Mar 2009 @ 8:57pm
  
  Re: And now..
  [ link to this | view in chronology ]
Weird Harold, 18 Mar 2009 @ 11:17am

The universities are in a bad spot with this one. DMCA pretty much says that even a host or ISP must take action when notified of violating content on their networks. Failure to act would potentially open up a whole bunch of liability.

Then we end up with the classic squeeze play: The costs to have enough staff and enough resources to review, handle, and enforce the results of DMCA claims versus the cost of an agreement that would limit their liablity.

It sucks for the universities, but in many ways it has been their own lax approach to network management that has gotten them into this problem. They don't have very many winning cards to play here, and listening to the student side of the discussion would likely only lead to bigger problems.
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- hegemon13, 18 Mar 2009 @ 11:26am
  
  Re:
  It only says that, when informed of a specific piece of infringing content on a system within their control, they must take it down. Neither ISPs nor universities are required, nor even allowed, to remove files from your personal computer as part of the DMCA. If students were sharing by posting files on university servers, they would be required to remove those files when alerted specifically to the infringing files. But file-sharing on a university network is no different than file-sharing using an ISP's connection. It is not covered in any way by the DMCA.
  
  Oh, and listening to the students might take more time and lead to a more complicated solution. But it would also be far more likely to be a solution that satisfies both parties, and thus far more likely to work.
  [ link to this | view in chronology ]
  - Weird Harold, 18 Mar 2009 @ 11:35am
    
    Re: Re:
    I have to say "wrong". It isn't a question of what you have on your personal computer for your own use, as much as the question of what is in your share file that you are allowing others to get. P2P software makes your computer into a server, and the ISP into a host. Hosts are liable. Heck, the network provider that gives the connection can be found liable as well. DMCA is not limited to the owner of the server, but to all that make that serving possible.
    
    That isn't theory - that's reality (been there, seen it done).
    [ link to this | view in chronology ]
    - :Lobo Santo, 18 Mar 2009 @ 11:54am
      
      Re: Re: Re:
      Heckle!
      .
      .
      .
      Heckle!
      .
      .
      .
      Shoot, I think I'm doing it wrong. Hey weird harold, what's the best way to heckle a putz?
      [ link to this | view in chronology ]
      - Weird Harold, 18 Mar 2009 @ 12:11pm
        
        Re: Re: Re: Re:
        I dunno putz, how do they do it to you?
        [ link to this | view in chronology ]
    - Mechwarrior, 18 Mar 2009 @ 11:56am
      
      Re: Re: Re:
      Thats the opposite of the Safe Harbour clause in the DMCA.Safe harbour is not optional , but in face a requirement in DMCA.
      [ link to this | view in chronology ]
    - hegemon13, 18 Mar 2009 @ 12:18pm
      
      Re: Re: Re:
      You seem incapable of understanding the difference, but let me spell it out for you anyway:
      
      HOST: Hosts content - Possible liability under DMCA.
      
      ISP: Provides connection - NO liability under DMCA.
      
      They are not the same thing, despite your driveling claims to the contrary.
      [ link to this | view in chronology ]
    - SteveD, 18 Mar 2009 @ 12:29pm
      
      Re: Re: Re: Weird Harold
      'That isn't theory - that's reality (been there, seen it done).'
      
      Ahh good. If there's a legal case to support your idea, then there will be a reference you can supply to verify it.
      
      But I remain sceptical of this, as nothing you have suggested does away with the classic 'just a dumb pipe' defence ISP's have always enjoyed.
      [ link to this | view in chronology ]
      - Weird Harold, 18 Mar 2009 @ 2:08pm
        
        Re: Re: Re: Re: Weird Harold
        There is no legal case, because ISPs are pretty good about getting things handled, as are the upstream providers. I don't think much has ended up in court because things get handled, which is exactly the point of DMCA - to avoid long court battles.
        
        If copyright takendown noticed ran at the speed of the courts, it would take years to remove a single image. DMCA essentially uses the pressure of potential liablity to resolve things in a timely manner. Outside of a few dillweeds in Russia and China, I can't remember a DMCA being ignored that I was aware of.
        [ link to this | view in chronology ]
Anonymous Coward, 18 Mar 2009 @ 11:23am

Yes, there is a distinction between a "covenant not to sue" and a "license", but in large measure Mr. Lincoff's article strikes me as one asserting "the sky is falling".

Before I start characterizing a potential approach as "bait and switch", I deem it wise to wait and read a preliminary draft of one of these agreements. Representations and warranties are important. Indeminity provisions are important. Third party rights are important. Etc., etc.

I do understand Mr. Lincoff's concerns, but at this point in time it is far too early to tell if they are truly substantive or merely theoretical.
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Derek Kerton (profile), 18 Mar 2009 @ 11:31am

Blank Media Tax
Sounds exactly like the blank media tax paid on blank cassettes and CD-Rs. The consumer pays a bunch of money on the assumption we're all infringing copyright, yet we get nothing at all in return. If we DO use the cassettes to copy music, we could still be sued.

They got that terrible BS passed off, let's not let them do it again.

This Choruss plan is just a poll tax with the proceeds going to the recording industry.
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Marmaluke, 18 Mar 2009 @ 12:08pm

Harold - Name one
Wierd Harold: Please direct those of us skeptical of your views to one example of an ISP held liable under the DMCA?

We definitely would have seen RIAA and other like organizations go after universities if what you say is true. I have never read the DMCA to mean or seen evidence that suggests that you are correct, so until you can give me a court decision that I can look up to verify, I call BS.
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- Weird Harold, 18 Mar 2009 @ 12:18pm
  
  Re: Harold - Name one
  http://www.chillingeffects.org/dmca512/faq.cgi#QID590
  
  512(i) in particular is interesting, and explains exactly why ISPs get notified. There is no other way for them to determine repeat offenders if they are not notified.
  
  Court cases? Well, you can go look up the various losses of Napster. I can do the research for you if you like, but first I would need a credit card so I can bill you the research time. ;)
  [ link to this | view in chronology ]
  - SteveD, 18 Mar 2009 @ 12:45pm
    
    Re: Re: Harold - Name one
    That's a nice theory mate, but until you actually have an example of it being used its just a content-industry wet dream.
    
    If people were loosing their internet connections because they'd been infringing, or ISP's were getting sued...I'm quite sure it would be news.
    [ link to this | view in chronology ]
    - Weird Harold, 18 Mar 2009 @ 2:13pm
      
      Re: Re: Re: Harold - Name one
      As stated before, I haven't seen any court cases, because in everything I have been personally aware of, the ISPs have taken steps to resolve the issues quickly. Most ISPs don't want to risk the liability, and they will contact their client and resolve the issue where possible.
      
      Because of the repeat offender clauses, the ISPs are also sensitive to the issues and don't want to end up with liablity as a result. Like I said, I haven't seen a single situation with an ISP that had to go to court. If I see one, I will let you know.
      [ link to this | view in chronology ]
  - batch, 18 Mar 2009 @ 12:53pm
    
    Re: Re: Harold - Name one
    Napster was the host of the data. They were the provider. Napster was Not an ISP.
    
    Damn, Harold, you fail each and every single time. Just stop already.
    [ link to this | view in chronology ]
    - Weird Harold, 18 Mar 2009 @ 2:16pm
      
      Re: Re: Re: Harold - Name one
      Learn the whole story of Napster, it isn't as straight up as that.
      [ link to this | view in chronology ]
      - cvpunk, 18 Mar 2009 @ 2:36pm
        
        Re: Re: Re: Re: Harold - Name one
        ummm... no, it is as straight up as that.. Napster is not now and never was an ISP.
        
        read this slowly...
        someone asked you to sight where an "Internet Service Provider" was sued. Not Napster, not TPB, etc.
        [ link to this | view in chronology ]
  - Enrico Suarve, 19 Mar 2009 @ 2:07am
    
    Re: Re: Harold - Name one
    Yes Napster lost a lot of cases - but they were a HOST providing search capabilities HOSTED on a SERVER, even then the rulings were tenuous in places as far as I am concerned
    
    Their ISP did not lose any court cases because they were a dumb pipe
    
    With l33t research skillz like those already demonstrated I think I could afford your rate
    [ link to this | view in chronology ]
Pjerky, 18 Mar 2009 @ 12:39pm

Strong Arming
Sounds a bit like when gangsters would go into shops and demand protection money every month/week. Then would still abuse them for more in the time in between. Any more I just see the record labels and RIAA as a bunch of thugs that have the money and political power to bully everyone, from the consumer to the artist, to get more out of them and they use that power and abuse it badly.
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Another AC, 18 Mar 2009 @ 12:42pm

All done
Music is basically dead to me now and has been for quite some time. I used to buy CDs and go to shows, but the fact of the matter is that the product these days sucks and is way overpriced. Out of the many shows I have been to there have been 2 or 3 that were worth the money, and those were free tickets. No one in the industry deserves to make the money they do. It is mindless entertainment and not very good at that. I will not pay another dime for(or waste my time downloading) music. Further more, they shouldn't be getting paid at all unless they are dragging their sorry asses to a stage to show people a good time. The recorded music is the advertising, plain and simple and Napster should have been the ultimate spring board.

This is by far the main industry that I can agree with Mike on regarding infinite vs Scarce goods.
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Anonymous Coward, 18 Mar 2009 @ 1:29pm

Do you guys ever consult any lawyers on your statements of the law?

Covenants not to sue are virtually the same as licenses. Here's pretty much the only differences, and why this is irrelevant:
* Covenants are personal, whereas licenses may be transferable. Since there's no sale here, there can be no first sale. Thus, this point is irrelevant.
* Licenses usually cover future rights in the IP by default, whereas covenants by default usually don't, but the agreement can extend the covenant to future rights (and licenses can limit this extension), so this is moot.
* Licenses are protected in bankruptcy, but no case has yet determined whether covenants are. And by the time the bankruptcy proceeding is done, the university student will have graduated and moved.

The covenant vs license issue is irrelevant to the fact that labels would be doing the deal instead of labels AND publishers. The labels can't grant a license to the publisher's content in the first place.
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- Mike (profile), 18 Mar 2009 @ 1:58pm
  
  Re:
  Do you guys ever consult any lawyers on your statements of the law?
  
  Yes, quite frequently. This post was based on a report written by a lawyer. Are you suggesting that he should consult a lawyer?
  
  Covenants not to sue are virtually the same as licenses. Here's pretty much the only differences, and why this is irrelevant:
  
  If you read the report, you'll see there's a lot more than that.
  
  But, even if you're right, that alone is not the biggest issue. The fact that the industry will continue to shut down file sharing systems is a pretty big bait-and-switch point.
  
  The covenant vs license issue is irrelevant to the fact that labels would be doing the deal instead of labels AND publishers. The labels can't grant a license to the publisher's content in the first place.
  
  Again, as the original report noted (did you not read it?), a typical license with the record labels includes a promise to to clear the mechanical rights. But a covenant to sue doesn't include that, and it seems unlikely that it would in this case.
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nix, 18 Mar 2009 @ 1:57pm

Main stream music
I will say that I have disliked the main stream music scene for quite a while; for various reasons, suing fans is one of them. I currently only buy non-main stream music from various sources.

I guarantee that musicians associated with riaa will never see another penny from me.

PS: The quality and originality is actually better than the main stream. The entire cd(s) are actually worth listening to rather than 1 or 2 tracks.

The media distribution formula lacks something to be desired. 1 or 2 good tracks, 2 or 3 mediocre tracks and the last 4 utter crap.

Independent artists work to make the whole cd quality. Also their prices are cheaper. Seriously $20 bucks for a lousy cd vs an $10-$12 bucks for a quality cd from an independent. Actually, there are a number of sites to listen to the music before you buy it. How cool is that?

PSS: I have turned on many of my friends to various independent artists. Yep, more money that riaa/riaa artists wont see.
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- Anonymous Coward, 18 Mar 2009 @ 2:10pm
  
  Re: Main stream music
  How about some links? Sounds good. Any money I can send straight to the artist (ie not to RIAA or distributors) is money well spent, on music anyway.
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  - Joel Arant, 19 Mar 2009 @ 6:06am
    
    Re: Re: Main stream music
    http://www.joelarant.com
    
    Help yourself! You can even buy a CD if you like. Fortunately or unfortunately I'm no Britney.
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Anonymous Coward, 18 Mar 2009 @ 3:25pm

Support live music. That's all that matters. That's how musicians make the real money. So, Britteny spears and miley will be out of work. Who the F cares about them . It's not music, it's entertainment. And not good entertainment unless you are 12.
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Alsee, 18 Mar 2009 @ 4:11pm

Weird Harold please stop.
Weird Harold you don't understand the law, and many of your assertions about the law are completely wrong.

First and most importantly, the DMCA is a United States law. DMCA law and DMCA notices do not apply in Russia, China, Canada, Australia, or anywhere else. Anyone mails DMCA notices to outside the US is an IDIOT.

Next, Safe Harbor provisions are absolutely NOT mandatory. If you have your ship in a safe harbor then you are safe, but obviously ships can and do sail outside harbors. If you go outside the harbor than you are subject to standard pre-DMCA law. If you go outside the harbor and do not do anything prohibited by standard pre-DMCA law, then you are still safe. Not only are DMCA safe harbors not mandatory provisions, but companies remain free to IGNORE a DMCA notice if they wish. If they examine a DMCA takedown notice and decide it's bullshit, they can mail back a fuck-you letter. If a company ignores a DMCA takedown notice, then the person sending the notice is free to go to court to argue their assertion that the end-user and his content are infringing under standard old copyright law. They could also then try to argue that the internet company is somehow indirectly liable for infringement under standard old copyright law. There are a multitude of valid reasons a company could safely ignore a DMCA takedown notice.

Next, ISPs who merely provide a connection to the internet are protected under the communications provisions of the DMCA. ISPs do NOT cut off access when a customer's computer is hosting allegedly infringing materials.

The DMCA takedown notices are for when someone submits materials and those materials are hosted on the company's own computers. And in that case the company can either take down those materials, or they can stand by standard old copyright law and the position either that the materials are not infringing, or that they are not liable under standard old pre-DMCA law.

Next, Napster was taking a very active personal role in the process and they were processing and managing all the file trades. Under pre-DMCA standards they were too closely involved in the specific files being traded and they were required to make a reasonable effort to filter out infringement. The court permitted Napster to remain active and in business. The court injunction required Napster to implement some sort of system to filter their own processing of the files that the court was ordering blocked. Due to the past and ongoing legal costs, and technical and other difficulties of trying to implement such a filter, and the profit of simply selling the name and the business, Napster themselves decided it would be easier and more profitable to shut down and sell. By my figures by closing up selling the name and everything and getting the RIAA to agree to a settlement to go away, Napster netted $49 million.
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- Weird Harold, 18 Mar 2009 @ 7:16pm
  
  Re: Weird Harold please stop.
  Again, welcome the wonderful world of the difference between "theoretical" and "practical".
  
  DMCA doesn't apply to russian based websites. But you see, you are thinking like a first year law student reading the law as written. In real life, there are two reasons why you would send the DMCA to Russia: 1) because it is a good enough format to notify someone of violation, regardless of locations, and 2) because they would not be the only ones you would notify.
  
  In practical terms, it is usually pretty easy to find some part of the process jutting out into the US. Hosting companies, bandwidth providers, ad networks, DNS providers, credit card processors, and even registrars and such. The key is that these companies usually won't do much with your DMCA unless you show that you attempted to contact the owner. Thus, step 1 makes step 2 work.
  
  Are all of these companies liable? Well, most of them don't want to find out. It's cheaper and easier to apply a little pressure up the ladder to get the guy in Russia to take down the content. All the safe harbour provisions in the world are nice, but nobody wants to be in a court of law trying to prove that the server on their network isn't in fact theirs, and that they have no control over it.
  
  Also in the real world, especially when dealing with hosting companies outside of the US, most of them will react to DMCA notices even though not required to by law. Almost every country has copyright laws, and again, most of them don't want the hassle. There are certainly companies in Russia and China that are not fussy about what they host, but others are responsive. If you don't make the effort, nothing happens.
  
  I could go on, safe to say that reading the rules and actually working with them are two different things. The MIAA and RIAA have a tough time mostly because they are apparently such a-holes with people about take downs. You don't get as much cooperation that way. Their attitude basically encourages people to fight back.
  
  As for Napster, well, I will accept as "standing corrected" but I think you missed a huge hunk of the history in there. However, part of the reason Napster couldn't control and filter the files as per the Ninth Courts ruling was because it had gone p2p at that point, and they no longer had full control of their network. Had they been as centralized as when they started, it would have been possible but not likely.
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  - Weird Angry Harold Dude, 18 Mar 2009 @ 8:25pm
    
    Re: Re: Weird Harold please stop.
    Ok I was wrong, but .... blah blah blah
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  - Yosi, 19 Mar 2009 @ 2:58am
    
    Re: Re: Weird Harold please stop.
    Typical US-is-top-of-the-world arrogance. It this is in US "good enough format to notify someone" it doesn't mean this format is good in other places.
    Here's novel concept for you: some independent countries have their own laws. Some of those countries think that DMCA-like laws are full of crap.
    Also basic misunderstanding how Internet works. Just because DNS server located in US it doesn't make owner somehow liable. Why not sue Intel too, they are US company, isn't it?
    
    ".. the difference between "theoretical" and "practical" is that there are corrupted politicians, stupid judges and sell-my-mother-for-a-dollar pals like you. US govmt have them all as can be seen from foreign policy.
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  - LostSailor, 19 Mar 2009 @ 7:17am
    
    Re: Re: Weird Harold please stop.
    Weird Harold is correct that DMCA notices are quite often very effective even if the company and servers hosting third-party infringing content are based outside the US. I have seen first hand that such notices sent to services based in both Switzerland and Hong Kong nearly always result in infringing content being removed. Many of these non-US sites even have DMCA policies posted, when they clearly don't have to.
    
    Whether such notices are enforceable or not is often irrelevant, since, as Harold points out, they are an effective means of notification of infringement that it likely illegal in those countries as well, whether by local statute or international copyright treaty obligations.
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tim, 18 Mar 2009 @ 8:55pm

Re:Re:Weird Harold please stop.
"But you see, you are thinking like a first year law student reading the law as written."
Are you telling me the law shouldnt be enforced as it is written? There should be no loopholes, ambiguous clauses etc, because people will understand the practicality of how it should be over the theoretical application according to how it is documented?
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- Anonymous Coward, 19 Mar 2009 @ 5:59am
  
  Re: Re:Re:Weird Harold please stop.
  Yeah. That's pretty much what he is saying, and always has said. Note the backpedaling and excuses when he's asked to provide links?
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Sheila, 19 Mar 2009 @ 9:19am

how come they think it's ONLY college students who steal music?
The arrogance of it all almost makes blood squirt out of my eyes. WHY is it my problem, as a higher ed residential network service provider, that their business model has failed? Does no one else have access to high speed internet? Only colleges students? Really? Must be why they're putting it on my back. Warner Bros and Choruss can bite me.
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Kyle, 19 Mar 2009 @ 11:35am

We argue more than understand
Until everyone understands what "royalties" are, and how they are paid, you will not fully understand why ASCAP, BMI, SESAC, and Soundexchange (PRO's) was created.

PRO collect payment and pay Publishers, and independent songwriters. How are they the problem? No ones ever had an issue with someone writing a book. ASCAP pay authors just as well! Whats different?

PROS don't pay the artist, only songwriters which can include some top known artist. Labels pay the Artist!

Major labels control the RIAA, that who you should have your beef with!

As far as Chrouss goes, it was a hidden way for colleges to "sleep with the enemy!"

And the music industry hasn't failed, technology through them a curve ball, and they're saying its failing to get congresses attention! They're crying wolf! Meanwhile major labels are losing to new independent labels! Thus the fight!
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Joe J, 19 Mar 2009 @ 2:47pm

Artists to blame?
People blame the musicians all the time. "It's THEM that signed with these people!"

Generally speaking, an artist knows they're getting the shit stick from the labels when they sign. They do all the work and get paid a fraction of the income they generate.

But really, you can't blame them. New bands make no money. None. They might be able to get paid for a few shows to buy a new piece of equipment sometimes if they are lucky. Otherwise they usually work full time somewhere to support themselves.

So, when a label says "We'll sign you, pay you 20% of the revenue, the rest is ours" most of them will sign because 20% of 4 million is still an ass load more than the $8.50 they make stocking shelves somewhere. Since there's so many new musicians out there every day, this may be their only shot. They HAVE to take it.

You can't blame these people. Keep the blame on the RIAA and such. They're the problem.
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fritz, 19 Mar 2009 @ 4:22pm

Seems Simple
If people would stop stealing music there would be no more problem. The RIAA wants to make it more difficult to steal music. Why is that objectionable? If you don't want to get sued, or face criminal action, don't steal. Simple.
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wheatus, 20 Mar 2009 @ 9:22am

Failure
Those who say the only way to stop this is to boycott ML's and ML artists and for ML artists to take a stand and cut these lamprey out of the mix are CORRECT....That IS the only way for music to survive.

Weird Harold, what ML do you work for?

We were on Columbia for our 1st record, found out up close and personal what type of people we were dealing with and asked to be let go....we got lucky and they obliged...but not before we made them some serious money (our 1st record recouped).

The unfortunate fact is that artists have a personality type that easily falls into co-dependence with these ChoruSS type Remora....I'm certain though, it is time to evolve............. or die with these parasites eating out our eyes out.

Artists who are not hell bent on super stardom and are willing to work hard for a more balanced economic relationship with music buyers will survive.

Fuck ChoruSS and anyone who supports it.

brendan b brown
wheatus.com
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Anonymous Coward, 8 Jul 2009 @ 5:31am

So TechDirt is dissing a buffet $5 a month plan for all you can eat, and on the same page has Google adverts such as the highly attractive offer of:

$5/Mo. Gets You 5 MP3 Downloads Plus Unlimited Streaming - Napster®

Me thinks TechDirt is out for all the $$$ it can scam as well...
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Brian Corber (profile), 24 Oct 2009 @ 3:50pm

con artist Jim Griffin
I was a member of the PHO listserv run by Griffin. he proved himself time an again, a con artist on that list. Don't trust him. If he's involved, it's fraudulent.
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