ASCAP's Latest Claim: Embedding YouTube Videos Requires Public Performance License

from the good-luck-with-that dept

Thu, Jul 9th 2009 8:30am — Mike Masnick

A few years back, we idly wondered if it could possibly be copyright infringement to embed a YouTube video on your own site. It would be a very difficult argument, since an embed code is really no different than a link. The content itself is hosted by YouTube and was uploaded by some other party. Yet, we figured eventually someone would make a claim along those lines... and wouldn't you know it would be ASCAP?

ASCAP must be really hard up for cash these days, because it's going down the PRS route of trying to claim that just about anything now counts as a public performance. Just a few weeks ago, came the news that your mobile phone ringing in public is a public performance. It's also been telling composers/song writers to hold back on allowing their songs in video games like Rock Band/Guitar Hero on the assumption they should get more money for it (not realizing that getting songs in those games has been shown to raise the profile of the artists allowing them to make a lot more money).

So, the latest? Apparently ASCAP has started sending collection letters to various websites that have embedded YouTube videos that contain music, claiming they need to pay up for a performance license. This is definitely a huge stretch legally, but when has that stopped ASCAP? Meanwhile, you may recall that YouTube was just ordered to pay millions to ASCAP -- which you would think would cover this sort of thing -- but not according to ASCAP. If that's true, then ASCAP would be getting double/triple/quadrupled/etc. paid for embedded videos, which certainly doesn't seem right (or legal).

And, once again, we're left with a situation where ASCAP -- which always positions itself as having the best interests of songwriters/composers/publishers in mind -- is actually causing significant harm for artists. By adding to the cost of having people promote those artists on their own websites, they're greatly diminishing the ability of people to get the word out about these artists.

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Filed Under: copyright, embedded videos, music, public performance
Companies: ascap

31 Comments

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Anonymous Coward, 9 Jul 2009 @ 8:43am

ASCAP is a joke.

I'm always able to get a hold of my congresscritter via this phone number. Maybe you can change their minds.

Ask for the folks who represent you:
(202) 224-3121
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Anonymous Coward, 9 Jul 2009 @ 8:54am

Also, express support HR 1207 if your speaking with a House Rep. If your speaking with a Senator's office, express support for S.604

-That gay guy according to FBI records.
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Ima Fish (profile), 9 Jul 2009 @ 8:59am

As you point out, embedding a video is nothing more than hotlinking. When you hotlink the content never flows through your server. You actually never make a copy of it. The content flows directly from the host server to the end user's computer. All the embed code does is tell the browser where the host file is. Once again, the embed code does not create a copy. And the content never flows through your server.

I've written before how hotlinking is neither stealing nor any violation of copyright. So I'm totally perplexed at what legal basis ASCAP is relying upon.

My hope is that they're simply confused about what embedding a video really entails. However, my fear is that they know, but simply do not care and are acting purely on greed.
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- Anonymous Poster, 9 Jul 2009 @ 9:26am
  
  Re:
  Oh, I have no doubt they're acting on greed. They don't give a damn about the artists they're supposed to represent.
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- Anonymous Coward, 9 Jul 2009 @ 9:32am
  
  Re:
  I'm fairly certain they're acting out of ignorance, motivated by greed. I'd be shocked if they had any idea how websites and browsers really work. The way these people look at the Internet is like so many independant TV stations, broadcasting their "sites" out to computers around the world.
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  - Isaiah, 22 Sep 2010 @ 2:04pm
    
    Re: Re:
    I'm pretty sure they're not THAT ignorant, but they're malicious and just hoping that everyone ELSE is that ignorant.
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Anonymous Coward, 9 Jul 2009 @ 9:05am

pretty soon I think the courts are going to get fed up with this abuse of the system and the public(as opposed to those in the know) is starting to lash out because of the abuse.
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- Hephaestus (profile), 9 Jul 2009 @ 9:51am
  
  Re:
  Well that was expected .....
  "pretty soon I think the courts are going to get fed up with this abuse of the system and the public(as opposed to those in the know) is starting to lash out because of the abuse."
  
  Its probably going to happen in a couple ways....
  
  The legal legs these groups are standing on will be cut out from under them in a court of law.
  
  Someone will sue the RIAA for all the moneys collected like Charles Nesson is planning.
  
  Consumers will begin complaining the news agencies will pick up on it. The attention will be focused on IP Law and a need to have a re write.
  
  Someone will come up with a solution that everyone but the record labels will adopt, until after its to late.
  
  All of this will lead to an eventual collapse of the industry. they will go kicking and screaming into the night and cause alot of damage as they fall.
  
  Catastrophic Collapses - means the sudden and utter failure of overlying "strata" caused by removal of underlying materials...
  
  226 note/entry) performance license, fees, exclusions, etc included in the systems library/database.
  
  Missed that one in my initial draft ... thanks!!!
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:Lobo Santo (profile), 9 Jul 2009 @ 9:15am

The slow child...
Oh ASS-CAP, when will you ever learn?
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ChurchHatesTucker (profile), 9 Jul 2009 @ 9:24am

Is it?
What constitutes a public performance, legally?

I'm guessing it's more than you + family + some friends (otherwise, that's just about everything.) If so, how many instances of playing a youtube vid are 'public performances?' None that I can think of. It's hard to get more than two other people to see anything on my computer, and I know or am related to both of them.
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- Anonymous Coward, 9 Jul 2009 @ 9:33am
  
  Re: Is it?
  But do you know/are you related to the maintained of the blog that's embedding the video? I'd put my money on "no." And that's more what ASCAP cares about.
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  - ChurchHatesTucker (profile), 9 Jul 2009 @ 9:37am
    
    Re: Re: Is it?
    "But do you know/are you related to the maintained of the blog that's embedding the video"
    
    I think you're asking if I know the original poster. That's not how the web works. He/She isn't watching it with me, and they likely have no idea I've accessed it. They literally just gave me an address and told me there was something cool there.
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    - Anonymous Coward, 9 Jul 2009 @ 9:44am
      
      Re: Re: Re: Is it?
      I know that, and you know that, but does ASCAP know that? It looks a lot like a news channel broadcasting a video clip, the only difference is it's on your computer.
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      - ChurchHatesTucker (profile), 9 Jul 2009 @ 9:52am
        
        Re: Re: Re: Re: Is it?
        "I know that, and you know that, but does ASCAP know that?"
        
        Fair point. Also, do the courts know that?
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Anonymous Poster, 9 Jul 2009 @ 9:25am

Man, I haven't laughed this hard in a week.
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Avatar28 (profile), 9 Jul 2009 @ 9:30am

Can we PLEASE just line all these people up along a wall and shoot them firing squad style?

Next on ASCAP's agenda, trying to one up PRS by calling up random people and demanding a performance license if they hear music from the radio or TV in the background. Oh, and demanding a performance license from, well, pretty much everyone if you have a radio in your car and you have more than one person in it.
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Avatar28 (profile), 9 Jul 2009 @ 10:23am

the other possibility...
Hephaestus, I could see another way it could go too. The RIAA convince their pets in congress to introduce a bill that adds a new tax, excuse me, a license fee to every internet connection. Say $5 or $10/mo. A reverse compulsory license if you will. The money would then go into a pot to be split among the various IP holders to cover things like youtube videos and music on websites and such.

Or, worse, a license fee that gets added into your income taxes when you file. Say $20/person/yr. If you have two parents and three kids then you would have to pay $100. I believe there are about 350 million people in the US so multiply that by $20 and you have 7 billion USD/yr of free money for these people. And, yet, the artists would STILL not see the royalties. The executives and lobbyists would probably see a nice bonus though.
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monkyyy, 9 Jul 2009 @ 11:08am

screw the system
how much hate mail will it take before ass-cap and siia come down?
millions or billions of email`s?
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Sailingmaster (profile), 9 Jul 2009 @ 12:54pm

In a way, ASCAP is worse than the RIAA.
It really is. No one believes the RIAA's lies about trying to defend the artists. They are there for the record companies and themselves. No artist sees a dime from their efforts.

ASCAP is worse. They are "supposedly" there for the artists themselves. Coloring themselves in the reflected light of the hatred aimed at the RIAA, they are making themselves increasingly repugnant.

I remember reading something about a case a few years ago about a garage that was sued for a Public Performance due to a mechanic in the garage having a radio turned up where it could be heard in the garage's waiting room.

Rampant idiocy is going to be the norm until IP law is completely overhauled.
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Anonymous Coward, 9 Jul 2009 @ 5:25pm

Get off this site and embed while u still can.
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Mike Raphone, 9 Jul 2009 @ 7:09pm

ASCAP's Latest Claim
How quickly we forget: Check this link to an article from 1996 in the New York Times.

http://www.nytimes.com/1996/12/17/nyregion/ascap-asks-royalties-from-girl-scouts-and-regrets-it.ht ml?pagewanted=all

In 1996 ASCAP send a demand letter to the Girl Scouts of America demanding payment for public performances of copyrighted songs. Were where these songs being performed. Around the Girl Scouts campfires. What is worse is that Irving Berlin who was one of the major financial contributor to creation of the Girl and Boy Scouts of America, composed "God Bless America". In 1940 Irving Berlin donated all future royalties from "God Bless America" to the Girl Scouts and Boy Scouts. This means that every time "God Bless America" was sung around a Girl Scout Campfire ASCAP would expect to be compensated so they could get their cut before the balance of the royalty payment was paid to non other than the Girl Scouts of America.
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vastrightwing, 10 Jul 2009 @ 8:44am

Don't sing in public
Next: singing in public will require a performance license.
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Social Networking Conference, 15 Jul 2009 @ 11:56am

They are heading after SN companies
There is an article on Social Networking and ASCAP here:

http://mb.socialnetworkingconference.com/Ascap-The-New-Aggressive-Face-On-Copyright-Sn-Issu es-1_395.html
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Sparkletags, 24 Aug 2009 @ 10:12am

They are trying to get me too...
Just because I have a video section on my site that is from an api from another site.. they want for me to pay them to be able to stream music from my site sparkletags.com! I told them in an email that I was not streaming from my server and this is what he told me and I quote...
"John,

Unfortunately, whether you host the material or not is irrelevant. The videos can be viewed under your URL, and any user can see these videos.
This is considered a performance and a license is needed to prevent an infringement. Any website that streams music is responsible for obtaining permission for the material, whether the it is hosted on their server or not.

I hope this clarifies the issue further. Feel free to contact me if you have any other questions.

Kind Regards,

Bryan Krebs
Account Executive/Business Analyst
ASCAP New Media & Technology
One Lincoln Plaza
New York, NY 10023
ph: (212) 621-6271
fax: (678) 239-3595
Email: bkrebs@ascap.com"

Any ideas on what I should do?
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Sparkletags, 24 Aug 2009 @ 10:12am

They are trying to get me too...
Just because I have a video section on my site that is from an api from another site.. they want for me to pay them to be able to stream music from my site sparkletags.com! I told them in an email that I was not streaming from my server and this is what he told me and I quote...
"John,

Unfortunately, whether you host the material or not is irrelevant. The videos can be viewed under your URL, and any user can see these videos.
This is considered a performance and a license is needed to prevent an infringement. Any website that streams music is responsible for obtaining permission for the material, whether the it is hosted on their server or not.

I hope this clarifies the issue further. Feel free to contact me if you have any other questions.

Kind Regards,

Bryan Krebs
Account Executive/Business Analyst
ASCAP New Media & Technology
One Lincoln Plaza
New York, NY 10023
ph: (212) 621-6271
fax: (678) 239-3595
Email: bkrebs@ascap.com"

Any ideas on what I should do?
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- Marie, 6 Feb 2011 @ 3:51pm
  
  Re: They are trying to get me too...
  Thank you for that. I am so tired of people making excuses why they should not pay the artist or the PRO that will pay the artist
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A.MER.ICAN, 7 Mar 2010 @ 3:55pm

By this way thinking, ASCAP will be wanting money whenever someone plays a radio in public! Just think... you may get sued for walking down the street with a boom-box on your shoulder, or for driving with your windows down in your car, and your stereo blasting where someone can hear it. That's a "public performance," isn't it?

With all these silly nit-picking laws, it's getting to where you just may as well forget about playing music or videos of any kind, or else some goddamn blood-sucking lawyer will be trying to get some money out of you.

I think they're cutting their own throats. My kids have legally bought hundreds of $$$$ in music from the iTunes store. Where did they hear them first? On YouTube, MySpace, etc. It's not copyright violations... it's free advertising...!
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- A.MER.ICAN, 7 Mar 2010 @ 4:12pm
  
  Re:
  Oh... I read also about ASCAP frowning on games like Guitar Hero, Rock Band, etc. My kids have also bought songs from these games from the iTunes store. My son bought "School's Out" by Alice Cooper, and "Mississippi Queen" by Mountain. These were songs I remember when I was a kid.
  
  He would have never heard or even bought these "oldies" if he didn't get these games for his PlayStation. I sure hope we don't get sued because his friends came over, and they all had a good time playing them.
  
  I hope the next "Guitar Hero" game isn't about songs from the '50's. ASCAP will be bitching about public performance of these songs while raking in millions of $$$$$ in royalties..!
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Anonymous Coward, 24 Mar 2010 @ 4:46am

"He would have never heard or even bought these "oldies" if he didn't get these games for his PlayStation. I sure hope we don't get sued because his friends came over, and they all had a good time playing them."

Yeah, that is great, but did anyone buy any of these songs?

Look, you never would have bought the game if it did not include these copyrighted songs. The maker of the game is marketing other people's property to sell their own property. The music owners deserve to get paid, and no, your kids enjoying their music does not count as payment.
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Marie, 6 Feb 2011 @ 3:49pm

Missing The Point
A lot of you are missing the key point and that is the artists on the video is entertaining you or performing and, yes, they should get paid for their performance. Youtube is making money off of every click they get why should they capitalized off of the artist and the artist not making anything. Is that right? NO it is not
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Vern, 16 Aug 2012 @ 3:39am

ASCAP is right to demand this. If you want to use the music, then pay for the privilege. Otherwise, refrain.
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