Microsoft, Yahoo And Real Sued For Failing To Get All Necessary Licenses For Music Stores
from the oops dept
Want to know just how incredibly confusing and impossible copyright law has become? Just take a look at this lawsuit, filed yesterday by some music publishing companies against Microsoft, Yahoo and Real Networks, claiming that the online music stores each of them runs (the Zune store, Yahoo Music and Rhapsody) infringe their copyrights (thanks Eric Goldman for sending this over). How can that be, you ask? Surely these companies properly licensed the music they offer in their streaming/download offerings, right? Well, the lawsuit doesn't provide that much in the way of detail (and I've spoken to a few copyright lawyers -- none of whom seem to agree with each other!), it sure looks like the claim is that Microsoft, Yahoo and Real may have licensed the copyrights on the recordings, but did not license the copyright on the compositions. It sounds like (though, again, the details are fuzzy) that the record labels did licensing deals with these music services, but publishers and labels are separate entities (even if the labels own many publishers), and the rights are separate.It's pure speculation until more details come out, but one imagines that the licensing deals with the record labels included some sort of assurances that the publishing rights were covered as well -- and for songs whose publishing rights were covered by the major record labels, that's probably the case. But for songs where the publishing rights were owned by independent companies -- such as MCS Music America, the claim appears to be that the publishing rights were never cleared -- and thus, Microsoft, Yahoo and Real were streaming/downloading music to which they only held some of the rights. Yikes.
Most of the complaint details which songs were offered without (allegedly) having secured all the rights. And, of course, the publishers are claiming that every time a song was streamed or downloaded, it counts as a separate act of infringement. If the court agrees, this could represent a massive liability for Microsoft, Yahoo and Real, given the fines we all know can be issued over a single instance of infringement.
That said, this is yet another example of the convoluted house of cards that copyright has become. The idea that you can license a recording, but then need to get a separate license from a totally different party for the rights to the "underlying composition" (and don't get us started on the need to make sure you're covered for reproduction, distribution and performance rights -- three separate issues under copyright law), and you begin to get a sense of the problem. Basically, every time some new technology or innovation comes along, the copyright holders run to Congress to slap on another right, rather than actually innovating on the business model side. And on top of it, when new technologies like the internet come along, it's not at all clear which rights really apply and who controls/owns what rights. Suddenly, you have a massive mess for a company trying to do something as simple as let people listen to music. Just for that, you get a massive lawsuit like the following:
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Filed Under: composers, copyright, music, publishing rights
Companies: mcs music america, microsoft, real networks, yahoo
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What is confusing?
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...
So the question is how many songs are we talking about?
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Re: What is confusing?
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Re: What is confusing?
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C.T. is exactly right
There are two copyrights at issue here: (1) the song itself (written by party A); and (2) the recording of that song (by party B, even if party B IS party A).
Mike, I bet you didn't know that the performers (party B) have to pay the writer (party A) for the right to record the song.
Please stop pontificating; go to law school if you want to pass legal judgment.
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Calculating 'damages'
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Re: Re: What is confusing?
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not that massive
But really, Ive gotta say this is probably the fault of whoever sold the rights to microsoft, real and yahoo failing to mention that certain songs in their catalogs had separate rights they needed to procure. Or its possible that it is the fault of these artists for being unreachable when the various entities tried to reach them (as the record industry often claims is the case when it owes artists money). Or I suppose it is possible that these stores with massive catalogs made minor clerical errors and failed to obtain proper rights for less than 1 percent of their respective libraries.
I hope everybody loses and that they have to pay out 80,000 dollars per download.
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Re: ...
But I agree with you 100%. The only way to stop these laws is to fully apply them. The judge/jury went beyond the RIAA's desires in the $2 mil case, why not here? Rather than work it out, slam these companies with the maximum fines.
Suddenly, Yahoo and Microsoft are lobbying against copyright law.
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Yeah, that is what we need. A settlement for a couple hundred million (or more) against a corporation. Then we could have a fair court fight.
I seriously doubt the RIAA would go after a major corporation though, as they would prefer to sit around and pick on people who can't fight back.
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Copyright is not trademarks
from the first paragraph (emphasis added and snips subtracted):
So why does the story here go on for 4 paragraphs on copyright law if this is a trademark case?
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Re: Re: What is confusing?
That laypeople find the nuances of copyright to be confusing is not itself an indictment of the Copyright Act. The interpretation of law is inherently complex. If you think copyright is bad, try familiarizing yourself with antitrust law... or for that matter, constitutional law.
None of this is to say that there isn't a need for some serious copyright reform. I certainly believe that there is. I just find that most populist attacks lack substance and are in many cases seriously misguided.
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Re: C.T. is exactly right
What about the guy who digitally edited it? What about the guy who did tech support for the computer on which it was digitally edited? What about the guy who taught the guy how to do tech support? And so on.
The band paid all of those guys too. Where are their residual checks? Shouldn't they be selling google? Why doesn't copyright apply to their participation in artistic creation?
My point is that there's no way to measure artistic creation so any line that is drawn legally leads to absurd conclusions.
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This may actually be good news...
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I know the answer....
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ITunes.
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Re: Re: C.T. is exactly right
works that might be combinations of other copyrighted
works is currently causing problems for ducmentatarians
as well as other older works being release on DVD. There
are a number of shows (WKRP in Cincinnati being a prominent
one) where the "original" work can't be published on DVD
due to the original music licensing arrangement.
Works are effectively being lost or prevented from being
even created due to the "gravy train" approach to copyright.
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Re: What is confusing?
That's not what I said was confusing. The point is that if Microsoft, Yahoo and Real could screw it up, then clearly SOMEONE was confused about who had the rights and how they were to be secured.
It's not the fundamentals that there are two separate copyrights -- that's quite clear. It's knowing whether you've got the rights or not. Clearly, it confused the hell out of three very large companies.
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Re: C.T. is exactly right
Uh, I know that quite well. Thanks very much.
Please stop pontificating; go to law school if you want to pass legal judgment.
I didn't pass legal judgment. I just pointed out how ridiculous the scenario is. And did you skip the part where I spoke to 3 separate copyright lawyers about the case, and none of them agreed.
Clearly something is rather confusing here.
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Re: Copyright is not trademarks
It's called a typo. It's been fixed. Thanks for calling it to our attention.
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Re: ITunes.
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Re: C.T. is exactly right
It just doesn't have to be so very difficult!
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Re: ITunes.
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When the hell did music become an absolutely indispensable part of daily life, more important than eating or even breathing?
That's the impression I get from reading these articles. People can go hungry, they can dump television, they can cut out virtually any luxury, but they absolutely, positively, can't live without music!
It used to be that people would drive with the radio on, or bring a CD or cassette to listen to. Now, they can't leave the house without an iPod/MP3 player with at least 1,000 songs on it. They probably spend at least $500 just on music, buying 20+ songs a day and putting their playlists up on the net. It's like their lives revolve around music.
Of course, the music industry shares the blame. They've elevated the infringement of their copyrights to the status of a global crime wave that threatens to completely and utterly destroy the ecomony of the entire world. Apparently music is the most important "product" in the entire history of the world.
You never hear this kind of stuff about movies or TV shows, or if you do, it's almost always related to the licensing of music used in the movie or TV show.
Maybe if people weren't so frigging obsessed with music, the music industry wouldn't be able to pull this crap.
(This message was typed while listening to the fan in the window, the birds in the trees and the wind outside)
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guess they don't want their music sold
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Re:
And on behalf of God, Mother Church would like her royalties please...
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Any relation to Videos/Movies?
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Re: Re: Copyright is not trademarks
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House of cards
Mike, about the expression "house of cards"...
"You keep using that word. I do not think it means what you think it means." - Inigo Montoya
The expression has a quite different meaning than how you've used it in this and past posts. A house of cards is something that can easilly collapse or is built on a shaky foundation. It has nothing do to with being complex or inscrutable.
I certainly wish that the copyright system were a house of cards. If it were, then it would soon collapse under all of the pressures on it and we'd be able to put something more reasonable in its place. The problem is that the current copyright system is built on a very solid, albeit a complex and confusing, foundation. The copyright system is actually the opposite of a house of cards.
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Re: Re: Re: Copyright is not trademarks
Hmm? For thanking someone for pointing out a typo and fixing it? How does that make me angry?
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Re:
Hyperbole much?
(This message was typed while listening to the fan in the window, the birds in the trees and the wind outside)
So, you have a problem that people find so much pleasure in life from listening to music and therefore place a high value on it? If only everyone in the world were just like you, it'd a better place, eh?
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Re: Re: Re: What is confusing?
They do that, too. Lawyers are expensive.
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re
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Re: What is confusing?
Please explain how playing a recorded song is a performance? It's not. To pretend otherwise makes a mockery of the whole system.
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Re: Re: C.T. is exactly right
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Re: Re: Re: What is confusing?
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Hyperbole much?
Maybe, but that's the impression painted by all these articles.
Look at the article about how the music industry wants to charge cell phone carriers a performance fee based on the idea that the ringtones used by subscribers constitute a public performance. Not to mention that selling ringtones is big business. Would they even think of trying to collect such a ridiculous fee if not for the fact that apparently most cell phone owners would suffer an agonizing death if they were forced to use one of their phone's stock ringtones, rather than a piece of copyrighted music?
Can you find me a single person in the civilized world who either doesn't own an iPod themselves or at least know someone who does? You never saw this kind of hype and craze about Walkmans, or portable CD players. They were just things that some people had. Now you have the mighty *iPOD*, which isn't just a device that some people own, it's a way of life! I can't walk into a store anymore without seeing at least a dozen different accessories for the iPod. Cables, cases, docks for your car, etc. You'd think we were living on an airless world and the iPod is our only means of life support.
Of course, to go along with the *iPOD* you have *iTUNES*, which has so much clout because of all the people buying music from it, that it can influence (to some extent) how the music industry sells music on the net. Every new version of the software is reviewed and analyzed in as much depth as any version of Windows ever was.
In the old days, people bought music albums and listened to the radio. Now that music is available on the net, it's like people's lives revolve around music. They have to have their internet radio stations, their iTunes songes, their cell phone ringtones, their iPod, their copy of WinAmp...
(This message was typed while listening to the fan in the window, the birds in the trees and the wind outside)
So, you have a problem that people find so much pleasure in life from listening to music and therefore place a high value on it? If only everyone in the world were just like you, it'd a better place, eh?
The line you quoted from me was a dig at all the people who feel that music is so important that they have to mention what they're listening to while typing a post. You've never seen that as a sig at the bottom of messages?
As for being like me; No, I just think that people have become too obsessed with music. Look at what's happening in the world today. The movie industry is worried about piracy too, but you don't see them suing file sharers for millions of dollars. You don't see them claiming that they need to charge double fees for every movie, or that they have to charge cable companies a performance fee for broadcasting their material. You don't see people obsessed with having 100+ movies on their iPod before leaving the house. Why is music suddenly such an obsession?
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Re: Re: Re: Re: Copyright is not trademarks
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Can customers have their money back?
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Re: Re: C.T. is exactly right
As a professional singer/songwriter I can tell you that this is not how complex the law has become...it's always been this way. You make it sound like this dual license structure is a new feature of the internet age...it's not.
The real problem is that these huge companies are built and financed not by the things they make, but rather by the laws and rights they enforce regarding the ideas they license. If the songwriters and the performers themselves were able to legally retain their copyright under all circumstances, and licensing were made more realistic and short term, then the courts could be the enforcers, protecting and enforcing the rights of those who actually do make the songs and/or performances, and this sort of thing would not come up....but alas, there are so many idiots who cannot do anything but still have "earned" a degree in "The Music Industry" from some snickering University somewhere. Isn't their job cool mom?
Suits can't write songs....Suits can't play music....Suits CAN collect all the revenue streams "for" those who can write and play...this is the problem, not the law that you have incorrectly deemed to be complicated. In this case, the labels outrageous ability own, consolidate and control something they didn't make is the problem.
What if it worked like this?:
I write a song
I perform that song on a recording
I send it to the US Copyright Office and they register it
A websternet company then has to get permission from me and pay me and then provide proof of such permission and payment to The US Copyright Office and pay them a fee before they can use my song/performance. The term is one year renewable upon payment of the fee.
There is no reason this corrupt bullshit can't be simplified and cleaned up. The problem isn't the law, it's the scumbag media companies who have to break it to maintain their fail upward business model.
brendan b brown
wheatus.com
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LOL. Did you have walk to school in the snow, up hill, both ways when you were a kid? Get off my lawn! But seriously folks...in those four paragraphs, all I heard was you have a problem with people using technology to experience more pleasure from music. Again, this is bad...because?
The movie industry is worried about piracy too, but you don't see...
You're not seriously pointing to the movie industry as an example of moderate copyright enforcement? Please. If there's any reason that the movie industry hasn't gone as far as the music industry, it's that in some small number of cases, they've learned their lesson from watching the music industry.
You don't see people obsessed with having 100+ movies on their iPod before leaving the house.
I have some friends/family who obsess about getting a DVD or Blue Ray as soon as it comes out. Others, about cramming as much music as they can onto their iPod. But the visibility of these collectors in public places has more to do with the size of storage devices and screens than it does a fundamental difference in what people collect or obsess over.
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School? Why, I could only dream of going to school! When I was a kid I had to walk 40 miles barefoot in sub-zero temperatures to just to take lessons in a cardboard box! And I was thankful! ;)
But seriously folks...in those four paragraphs, all I heard was you have a problem with people using technology to experience more pleasure from music. Again, this is bad...because?
It's not using new technology I mind, it's the level of obsession devoted to it.
People get obsessed about a lot of things, but music happens to be the most visible, because it's the most mainstream. This obsession has handed the music industry a lot of power. Let's face it, if there wasn't such a huge demand for music, they wouldn't have as much money as they do and without money, they wouldn't be able to bribe politicians into passing one-sided laws that favor them.
You're not seriously pointing to the movie industry as an example of moderate copyright enforcement? Please. If there's any reason that the movie industry hasn't gone as far as the music industry, it's that in some small number of cases, they've learned their lesson from watching the music industry.
I'm not saying that the movie industry is a good example. They've lobbied for a lot of bad laws as well. However, at least they haven't gone crazy with a ton of different licensing fees that they try to squeeze out of people. I mean, have they tried to charge cable companies a performance fee because a subscriber might have one of their movies playing in a bar, or a doctor's waiting room? Do they try to charge companies like Apple because someone might watch a movie on their iPod in public?
The movie industry is very far from being a good example of copyright enforcement, but what they've done so far doesn't compare to the asinine levels the music industry has stooped to.
I have some friends/family who obsess about getting a DVD or Blue Ray as soon as it comes out. Others, about cramming as much music as they can onto their iPod. But the visibility of these collectors in public places has more to do with the size of storage devices and screens than it does a fundamental difference in what people collect or obsess over.
When the Atari 2600 was popular, I remember going into a local toy store every single week to see if Activision's Laser Blast had come in yet. However, I never camped out overnight to be the first in line to buy a Mario game, nor did I ever try to mug someone for their new video game system.
I listen to a few songs occasionally, but I don't own an MP3 player, or even a radio. If I can't listen to music, it doesn't bother me. I used to have video games on the C64 that offered you a choice of music or sound effects. I always chose sound effects. I guess I'm the exception though...
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These big companies lose their priorities
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