Songwriter Claims He Was Exploited By Google... But A Few Seconds Of Logical Thinking Disproves That

German Collections Society Trying To Collect For Performances It Has No Rights Over

from the how-it-all-works dept

Fri, Apr 10th 2009 11:45am — Mike Masnick

The various music collections societies always like to present themselves as being there "for the artists." When we write about ASCAP in the US or PRS in the UK, we often get angry emails from supporters of those groups (or individuals who work for them) insisting that what they do is all to support the artist, and we should go pick on the record labels or something instead. Yet, that's misleading. These organizations always seem to keep looking to expand their collections duties, often at the expense of any other business model. Take, for example, what's happening in Germany, with its collection society, GEMA (which is separately battling YouTube over music videos). You see, like so many of these collections societies, GEMA works on the principle of "guilty until proven innocent." We've seen this with ASCAP and BMI as well -- where they insist that anyone who plays live music has to prove that none of it is covered by the collections society.

In the case of GEMA, unfortunately, German courts have agreed. The burden isn't on GEMA to prove that GEMA-covered music was performed -- but on the accused to prove that no GEMA-covered music is performed. Now, Wolfgang Senges alerts us to a rather ridiculous scenario. There's a startup, Jamendo, which has received a fair amount of press coverage, for offering a place for musicians to offer up their music under a Creative Commons (or similar) license. Artists uploading their works who want to offer a commercial license option (on top of the free option) have to show that they are not covered by a collections society like GEMA. As part of the commercial offering, Jamendo offers up a license showing that the music is not covered by GEMA. This is so that any establishment using Jamendo-licensed music can "prove" that the music wasn't covered by GEMA.

But, here's the fun part. According to Senges, GEMA refuses to recognize the license. That is, if you're a business that specifically licensed all the music you use from Jamendo, when GEMA comes calling to demand a blanket royalty fee, you should be able to show GEMA the license from Jamendo, showing that the music you play is not covered by GEMA and thus GEMA has no right to collect. But, GEMA refuses to recognize the license, and insists that every performance requires the venue/artists to fill out GEMA's forms about every song, to show that it's not covered by GEMA, or the group insists it has the right to collect, thanks to a legal ruling that states:

Because of the large and comprehensive repertoire GEMA manages, at performances of national and international dance and entertainment music there is an actual assumption militating in favour of the existence of a liability fee.

Oh, and lest we forget, it appears that even if you do fill out GEMA's own forms listing out all the non-GEMA music you played, you have to pay GEMA to file the forms. So... you end up paying no matter what.

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Filed Under: collections society, germany
Companies: gema

54 Comments

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Anonymous Coward, 10 Apr 2009 @ 12:01pm

Do the folks at GEMA wear brown shirts?
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RD, 10 Apr 2009 @ 12:11pm

FUWH
Yes but as WeirdHarold will tell you, this is the ARTISTS FAULT. See, they arent being diligent and they failed to chase after these people for their money. It is the RIGHT of the collection society to collect for ALL artists. IT is the FAULT of the artist for not getting paid. WeirdHarold has actually said this before.

But he's so far up the ass of his industry corporate masters he cant see that the CREATOR has the primary rights.
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RD, 10 Apr 2009 @ 12:15pm

FUWH
"Artists uploading their works who want to offer a commercial license option (on top of the free option) have to show that they are not covered by a collections society like GEMA. As part of the commercial offering, Jamendo offers up a license showing that the music is not covered by GEMA. This is so that any establishment using Jamendo-licensed music can "prove" that the music wasn't covered by GEMA. "

Lets not forget, its not possible to prove something ISNT. If I never signed rights away, how can I prove that? I dont have anything to show. And yet, somehow, the burden of proof on the other side (the collection societies) to show they DO have a signed rights agreement doesnt apply. They are given a pass and its on the ARTISTS to prove them DIDNT give permission. Nice catch 22 there, since its not possible, it must be legal, QED.
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ChurchHatesTucker (profile), 10 Apr 2009 @ 12:18pm

Guilty until proven innocent
It's not fair, but it is efficient..
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sehlat, 10 Apr 2009 @ 12:29pm

Re: Guilty until proven innocent
Jawohl, mein fuehrer!
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arne, 10 Apr 2009 @ 12:35pm

the ruling doesn't mean much
That ruling doesn't mean much, german has no concept of caselaw.
So that ruling has no meaning outside its specific case. The next ruling in a diverent case could be anyhing.
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Will, 10 Apr 2009 @ 12:43pm

Collective rights
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HH, 10 Apr 2009 @ 12:48pm

Germany Deja Vu
Dictionay.com lists the following:
Fascism
a governmental system led by a dictator having complete power, forcibly suppressing opposition and criticism, regimenting all industry, commerce, etc., and emphasizing an aggressive nationalism and often racism.

Did you guys active your time-machine by mistake?
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ehrichweiss, 10 Apr 2009 @ 12:50pm

ASCAP
Yeah..this is typical..

ASCAP called one of my clients a while back saying that she was playing music that she needed to pay a licensing fee for despite the fact that she was selling the CD's. She fixed it pretty quickly my ceasing to sell CD's and hence no need to play the music.

A friend who owns a record store was contacted by ASCAP saying he was playing some of their artists and needed to pay a fee. He shut them up quick with "Oh, ok. Well if you'll just send me a list of those artists, I'll be sure to stop selling their records and I won't have to play them any more". He never heard from them again.
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TheStuipdOne, 10 Apr 2009 @ 12:56pm

Re: FUWH
Good point ... now go tell the to the Germans
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Ryan, 10 Apr 2009 @ 1:02pm

Re: the ruling doesn't mean much
In the meantime, GEMA gets money from every citizen that plays music. Nice...
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Anonymous Coward, 10 Apr 2009 @ 1:02pm

Re: Germany Deja Vu
Maybe you should try Dictionary.com instead. The definitions at Dictionay.com are notoriously unreliable.
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Anonymous Coward, 10 Apr 2009 @ 1:08pm

Re: ASCAP
Interesting...so selling the music seems to have an effect on their attidude toward playing the music...Adam Smith would be so proud.
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ChurchHatesTucker (profile), 10 Apr 2009 @ 1:08pm

Re: ASCAP
ASCAP called one of my clients a while back saying that she was playing music that she needed to pay a licensing fee for despite the fact that she was selling the CD's. She fixed it pretty quickly my ceasing to sell CD's and hence no need to play the music.
Very efficient, but if you're in the business of selling CDs, that's not really an option.
It's an onerous tax on selling music, which results in less music sales, which get attributed to piracy, and then we get more draconian measures "to protect the artists."
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Tgeigs, 10 Apr 2009 @ 1:09pm

Coincidence?
Nazi has four letters, GEMA has four letters....
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HH, 10 Apr 2009 @ 1:12pm

Re: Re: Germany Deja Vu
Thanks Dic police, don't know what the Internet would be without you...
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The infamous Joe, 10 Apr 2009 @ 1:17pm

Re: Re: Re: Germany Deja Vu
I thought it was kinda ironic.
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Weird Harold, 10 Apr 2009 @ 1:22pm

This is the artists fault for not paying the GEMA for illegally producing free music.
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ChurchHatesTucker (profile), 10 Apr 2009 @ 1:29pm

Re:
This is the artists fault for not paying the GEMA for illegally producing free music.
WH, FTW!
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The infamous Joe, 10 Apr 2009 @ 1:35pm

Re: Re:
That's a fake WH. :(
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Anonymous Coward, 10 Apr 2009 @ 1:35pm

That might be a fake Weird Harold. So hard to tell these days.
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Tgeigs, 10 Apr 2009 @ 1:48pm

Er?
I'm confused, even the REAL Weird Harold is a fake Weird Harold...
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Hairy Weirdo, 10 Apr 2009 @ 1:56pm

Everyone knows that in order to compose and play music, you first need to pay for the right to do so. Isn't this common knowledge? Damn, I have to tell you guys everything!
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Weird Harold, 10 Apr 2009 @ 2:02pm

GEMA is my favorite organization behind NAMBLA
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Kirk, 10 Apr 2009 @ 2:05pm

Locking it down
It is as I've said before. The recording industry learned from ASCAP and BMI in the thirties: If you're going to smother the market to death, you can't let them have any option that you DON'T control. If you don't control ALL the music, you've only got control of one nostril. Then, the public will laugh in your face when you plug it and they will blow you out like the slime you are. Thus, they recognize that the only way they can get your lunch money is to ensure you have no other option, because they know the LAST thing they want to do is to compete.

Free Culture is a threat.

Let's have pie.
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Ward Hairdoo, 10 Apr 2009 @ 2:05pm

All music is composed of the same notes as those under license to GEMA, so these artists should just pay up for using GEMA's notes...
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Weird Harold, 10 Apr 2009 @ 2:56pm

All I can wonder is how an artist would find all the time to go from site to site, bar to bar, and radio station to radio station to collect their residuals from each one by one.

When would they actually make music?
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RD, 10 Apr 2009 @ 3:04pm

Oh dear...
"All I can wonder is how an artist would find all the time to go from site to site, bar to bar, and radio station to radio station to collect their residuals from each one by one.

When would they actually make music?"

Perhaps when they want to? Perhaps when they arent chasing residuals that a) they will never be paid anyway and b) DIDNT SIGN THE RIGHTS FOR A 3RD PARTY TO COLLECT ON IN THE FIRST PLACE.

Once again, WH misses the ENTIRE POINT of the argument and makes the case FOR the very organization that is committing the crime. Way to go WH! Your corporate overlords will be very pleased with you today. If you perform as well tomorrow, perhaps they will give you a crumb. After all, they only take care of their own, NEVER the artist who makes them the money to begin with.
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Weird Harold, 10 Apr 2009 @ 3:06pm

Mugga
Mugga.

Mugga mugga.

shmintorabble, mugga sumaphralio

Mubble mubble, wonga

Save me a cookie
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Weird Harold, 10 Apr 2009 @ 3:15pm

Re: Oh dear...
RD, please. Go look up "music publishing" and learn how it works.

GEMA isn't committing a crime (and you are one of the ones that complains when I call piracy theft... would you like to use your other face instead?). GEMA is doing what they are mandated to do. If the artist wants to opt out, they can do so.

You guys aren't thinking real hard - what if Jamendo just randomly claims the artist agreed to their terms? What is the proof? Are they perhaps just trying to avoid paying royalties? Also, if the artist signs with Jamendo, do they in turn lose all other potential royalities or residuals from any other use of their music?

It's really easy to get picky when you only look at a very narrow part of a larger process.
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Anonymous Coward, 10 Apr 2009 @ 3:48pm

Re: Re: Oh dear...
If I sign with Jamendo, and have the paperwork, then that's the proof. That's what licensing is all about, after all, right? So your strawman arguments aren't going to work on this one. GEMA is your pirate in this one, claiming monies that aren't theirs to collect, and wanting people to prove that they aren't signed with GEMA for the collections. GEMA bloody well KNOWS who is not signed with them. Are they going to let you skim their records to prove it?
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RD, 10 Apr 2009 @ 3:59pm

Scumbag shill coporate lapdog twat
"GEMA isn't committing a crime (and you are one of the ones that complains when I call piracy theft... would you like to use your other face instead?). GEMA is doing what they are mandated to do. If the artist wants to opt out, they can do so."

Wow you really are a piece of fucking WORK arent you? No matter what the issue is, you side with the INDUSTRY, every time. After all, they exist, therefore they MUST be right and legal.

If an artist doesnt agree to this kind of deal, then GEMA (and ASCAP and PRS etc) HAS NO RIGHT TO COLLECT ON THEIR BEHALF. Sorry, but you FAIL again with your idiotic, "the big labels are always right" mentality. When someone DOES NOT sign away rights to another party, then they are entitled to NOT HAVE THEM USURPED ILLEGALLY by someone else who then goes on to collect money of their work.

This is EXACTLY piracy and yet YOU, being the SCUMBAG SHILL LAPDOG that you are, DEFEND them and give them a blanket "oh yes they have a mandate." So does the MAFIA you fucking idiot. So do drug cartels. So they are OK too then, right? Of course not, they arent the ENTERTAINMENT BUSINESS who seem to operate outside of all the rules of law and have shill pricks like you to spread around misinformation about their illegal tactics and call it "just."

You are a disgusting human being, and you prove with every post your agenda for your masters. And if they arent paying you for this garbage, then you ought to send them a bill.
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Udo, 10 Apr 2009 @ 4:19pm

This happened to us
The German company I'm working for is being sued by GEMA right now for using podsafe music from podshow.com as the soundtrack to a PowerPoint presentation we did on a tradeshow last year.

And we're losing the case, our lawyers say. Because, even though we are able to reproduce the origin of the music, and even though it's podsafe and isn't in GEMA's list of licensable music, that doesn't count as proof that it isn't covered GEMA. Because by default, everything is covered by GEMA.

Now in our case, the actual artist who did the piece is not around anymore (the project seems to be dead), and even if they could be contacted it's highly doubtful they would fly over here testify in a German court (and that would still not be counted as proof).

So, yeah, GEMA is collecting for ANY music in Germany, and they love to collect for free music as well. Our lawyers explained to me that GEMA has a special status and is quite literally above the law. There is nothing anybody can do.

Oh, and by the way, speaking of German collections agencies: GEZ - the German collections company for public TV and radio - is taxing all people for any computers with internet access on the grounds that those computers could theoretically be used to visit the _WEBSITES_ of public TV and radio stations where they apparently publish some of their programming online. Oh Germany is just a great country, isn't it?
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Esahc (profile), 10 Apr 2009 @ 5:04pm

Re: Germany Deja Vu
Wikipedia.ord lists the following:
Fascist (epithet): http://en.wikipedia.org/wiki/Fascism_(epithet)
p2.
"In this sense, the word fascist is intended to mean "oppressive", "intolerant", "chauvinist", "genocidal", "dictatorial", "racist", or "aggressive" – all concepts that are at least loosely inspired by the ideology of actual fascism. One might accuse an inconveniently placed police roadblock as being a "fascist tactic" or an overly authoritarian teacher as being "a total fascist". Terms like Nazi and Hitlerite, are often used (correctly or incorrectly) in similar contexts."
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Anonymous Coward, 10 Apr 2009 @ 6:28pm

Re: This happened to us
Germany sounds like a WH paradise
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Weird Harold, 10 Apr 2009 @ 6:44pm

Re: Scumbag shill coporate lapdog twat
You may want to check your blood pressure, perhaps take a valium or something, because you sound like you are having a breakdown.

Do you make your living off music? No? Then why get all upset about it (especially when you are wrong)?
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Anonymous Coward, 10 Apr 2009 @ 6:56pm

And in other News ...
Germany muzzles WikiLeaks

http://wikileaks.org/wiki/Germany_muzzles_Wikileaks
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Lawrence D'Oliveiro, 10 Apr 2009 @ 7:05pm

Re: Oh dear...
Weird Harold claimed:

...what if Jamendo just randomly claims the artist agreed to their terms? What is the proof?

How do we know GEMA isn’t doing exactly that?
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Anonymous Coward, 10 Apr 2009 @ 7:42pm

Re: Re: Oh dear...
GEMA isn't committing a crime (and you are one of the ones that complains when I call piracy theft... would you like to use your other face instead?).

Calling copyright infringement "theft" is one of your favorite lies.
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Anonymous Coward, 10 Apr 2009 @ 7:49pm

Re: Scumbag shill coporate lapdog twat
Hey RD, don't let WH get to you. He's a pathological liar and nothing you can say to him will ever change that. You know, like they say, you can't argue with a twisted mind. WH is in his own reality. I think he actually lies to himself.
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Weird Harold, 10 Apr 2009 @ 10:49pm

Re: Re: Scumbag shill coporate lapdog twat
Did you come up with those names all by yourself? Your momma must be proud.
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Wolfgang Senges (profile), 11 Apr 2009 @ 8:06am

Re: ASCAP
ehrichweis, you're missing the point. GEMA starts effectively to stifle alternatives like Jamendo in birth. arne said, that another law suit might end up differently. That's right. But although Germany has another jurisdiction, they still look for precedences.

By setting up a general statement like the "GEMA assumption" (which is really ridiculous and embarassing at the same time), they are founding the basics for upcoming law suits - in particular, if they find support by law.

Nonetheless, there's still hope the judgment I referred to as been based on more facts than just the "GEMA assumption". Yet the GEMA is an opponent hard as rock. They are quite infamous for for enforcing financial claims.
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Aaron Martin-Colby (profile), 11 Apr 2009 @ 9:04am

Weird Harold
I've never read anything by this "Weird Harold," before.

Is everyone sure he's not just some troll?

But Weird Harold, if you're legit, I think you're missing the point.

"All I can wonder is how an artist would find all the time to go from site to site, bar to bar, and radio station to radio station to collect their residuals from each one by one."

This isn't what's being discussed. If an artist is worried about that, they can join GEMA. But these are artists who have not joined GEMA because, in the logic of this discussion anyways, they're NOT interested in residuals.

This is worthy of righteous indignation because the courts are saying there is an assumption, sans proof of any kind, that GEMA music is being played if there is music being played at all. This means that if you and your friends record lots of your own music, then play it publicly, GEMA can still sue you and force you and your friends to prove you made your own music.

"You guys aren't thinking real hard - what if Jamendo just randomly claims the artist agreed to their terms? What is the proof? Are they perhaps just trying to avoid paying royalties? Also, if the artist signs with Jamendo, do they in turn lose all other potential royalities [sic] or residuals from any other use of their music?"

The proof are binding contracts and testimony, just as it is in this country. If you want, we can get really epistemological and say we don't KNOW that anyone has really signed anything unless we have direct testimony from every artist. In this case, it's the artist's job to complain that Jamendo is lying. If there's no complaint, there's no problem.

And the answer to your second question is no. The artist still maintains control over their music. This applies to the US, I know. And since we're talking about Germany, if you'll look here,

http://translate.google.com/translate?prev=_t&hl=en&ie=UTF-8&u=http%3A%2F%2Fwww .gema.de%2Fuploads%2Ftx_mmsdownloads%2Fgema_jb_06-07_c1_urhg_01.pdf&sl=de&tl=en&history_ state0=

German law seems to specifically state that an author has absolute control over their creation for the duration of copyright. Moreover, I think it's an inaccurate statement to say that an artist "signs" with Jamendo. Jamendo is a service, not a record label.
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CleverName, 11 Apr 2009 @ 10:27am

Re: Weird Harold
In answer to your question, yes (IMO) WH is a troll.
And I think that 4 out of 5 TD readers would agree.
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MIchael, 11 Apr 2009 @ 6:36pm

Who cares.
Matters not what they do, I can just go dl whatever I choose. I have the ability to easily ignore whatever ridiculous laws they impose regarding music copyrights, and there is nothing at all they can do. When I have the option of anonymously dl'ing the music I choose to listen to, all of their arguments fall on deaf ears. Before there was internet, there was radio... where I could pop in a cassette and record it at will. So who cares what they do, they are irrelevant.
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t.ferree, 11 Apr 2009 @ 9:25pm

inquisition
People a few hundred years ago could be accused of being a witch, had to prove they weren't, and then had to pay their jailers anyway if they somehow managed to escape.
500 years later, we're doing the same thing; People can be accused of piracy; have to they're not, then have to pay their accusers anyway if they somehow manage to escape. Just insert "piracy" where the inquisition used "witchcraft".
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Anonymous Coward, 11 Apr 2009 @ 10:36pm

If... she... weighs... the same as a duck,... she's made of wood.
And therefore?
A witch!
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spaceman spiff, 12 Apr 2009 @ 9:06am

Legal Extortion
These assholes should be in prison, not extracting money from performers under quasi-legal fiat. I would hope that all musicians and affected performers/venues in Germany would strike - refuse to perform, until this situation is adequately redressed in their favor. The publicity such an action would generate would force the legislature to act.
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Weird Harold, 12 Apr 2009 @ 9:20am

Re: Weird Harold
I appreciate your posts and views, but I think that you are missing many things that are in play here. I would suggest you study up on things like public performance rights (not just in music, but for all "art", such as theater to book readings). Without a clear understanding of the underlying concepts (both legal and moral) the rest of the discussion is moot.

Jamendo actually is more than a service, again, I think you need to look at all that this type of company / organization does.

I would suspect that you think that bars, clubs, and live music venues should not have to pay for the music played in their establishments, and that websites like last.fm or whatever should not be paying artists for their music. It sort of makes the rest of this very hard to understand when you start from that point.
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Anonymous Coward, 12 Apr 2009 @ 11:52am

Re: Re: Weird Harold
So, in other words WH thinks you're ignorant
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soundlounge, 15 Apr 2009 @ 7:04am

Google and YouTube
Google’s acquisition of YouTube in 2006 and Google’s promise to uphold the rights of content creators seems to be an ongoing challenge. At soundlounge, we know that the clearance of music copyrights is always demanding for everyone from Retail shops to Advertising Agencies wanting to use music to enhance their own commercial selling environments. That fact seems to have eluded YouTube and it now seems to have become a hot issue with YouTube’s split from PRS and now GEMA. YouTube seems to have settled itself in the seat of controversy, but at least it keeps its name in the headlines, which in itself has a commercial value!

For further reading about GEMA please visit our blog:
http://soundlounge.wordpress.com/

For more information about music licensing:
http://www.soundlounge.co.uk/
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Bergman (profile), 10 Oct 2011 @ 8:09pm

Re:
No, but I hear there's a rather short man, high in the ranks, with a very amusing little mustache.
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Sunhawk, 26 Jul 2013 @ 9:36am

Re: Re: Weird Harold
I would suspect that you think that bars, clubs, and live music venues should not have to pay for the music played in their establishments, and that websites like last.fm or whatever should not be paying artists for their music.

Explain exactly how, if a bar is playing music not licensed by GEMA, they should have to pay GEMA anyway? That's what most of the outrage I've seen over GEMA has been about...
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Uncyc, 28 Sep 2016 @ 3:04pm

Wow
German courts are terrible but this takes the cake
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