Dutch Collection Society Looks To Charge Bloggers For Embedding YouTube Videos

from the pay-up...-again dept

Wed, Oct 7th 2009 11:01am — Mike Masnick

Over the past year, we've noticed an explosion in ridiculous attempts by music collection societies (often totally clueless about technology) to extend their ability to collect for positively ridiculous things (while also looking to significantly increase their collection rates). The latest, sent in by Dennis Laumen, is that the Dutch collection society, Buma/Stemra, is claiming that it's going to start charging bloggers 130 euros for every 6 videos they embed. This is, of course, technologically clueless. The embedding of a video doesn't change the fact that it's actually playing from and hosted at the original site (such as YouTube). All embedding does is allow the video to appear via the other page, even though, technically, it's all still happening at its original location. Claiming that this is somehow a "new" publication of the content is technologically incorrect.

This is somewhat similar to ASCAP's recent technologically clueless claim that embedding YouTube videos should count as a public performance (along with its other recent claims that iTunes 30-second previews and your mobile phone ringtones should also be counted as public performances). You sort of get the feeling that many of these collection societies came to the conclusion about two years ago that they're functionally obsolete, and rather than adapt to the times, they've all agreed to the same basic principle of going out in a blaze of glory. They're trying to vastly increase rates while covering any and ever attempt to use music in any way, bleeding everyone dry while making it that much more difficult for up-and-coming acts to get heard (since venues that promote them can't pay the crazy rates) and (even better) setting up their payout mechanisms to massively favor the top acts.

For the most part, these collection societies are simply being greedy, without putting a single thought towards actually helping composers and songwriters. They're looking for every single penny they could possibly collect today, and ignoring the medium and long-term impact of trying to charge for any sort of promotional behavior.

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Filed Under: collection society, embeds, netherlands, performance, youtube videos
Companies: buma/stemra

48 Comments

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ChurchHatesTucker (profile), 7 Oct 2009 @ 11:24am

Hey!
We're just sitting here in our offices doing not anything that's helping anyone. But we've got lawyers to seek rents for us, so, sorry 'bout that.

Not really. Pay up. Tee-hee!
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Hephaestus (profile), 7 Oct 2009 @ 11:29am

Re: Hey!
Yet another bubble growing ...... anyone got a pin?
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Anonymous Coward, 7 Oct 2009 @ 11:32am

Actually. including something into a web page is publication. You need to meet smarter lawyers Mike.
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Chronno S. Trigger (profile), 7 Oct 2009 @ 11:45am

Re:
Would a URL to the video also count as publishing the video? It's the same damn thing. Welcome to the Internet.
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Anonymous Coward, 7 Oct 2009 @ 11:46am

Re:
I own the copyright on ignorance. Since you published your comment, I'd now like to demand $500 from you. I expect your check soon.

Thanks!
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Chronno S. Trigger (profile), 7 Oct 2009 @ 11:46am

Re: Re: Hey!
Pop that one quick and no bailouts this time.
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Anonymous Coward, 7 Oct 2009 @ 11:46am

Re:
Remember there is a difference between what a web browser shows you and what is published in a web page. An embedded video link in a web page is just a link, its you (your browser) that actually goes to YouTube to view the video, and you browser is convenient enough to just put it in the page for you. It's not the webpages fault that you used a super smart browser to view there page.
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Devonavar (profile), 7 Oct 2009 @ 12:11pm

Publication
I would think that a video that is embedded in a web page counts as part of that web page regardless of how it is implemented technically. It's the experience of the end user that counts, not how it's hosted. On an experiential level, embedding content is *not* the same as a link even if it's accomplished in technically the same way.

To borrow a phrase that you like to use for trademarks, no moron in a hurry is going to think he is looking at YouTube if he types in www.techdirt.com into his browser and views a video embedded there (though perhaps there are borderline cases for less "branded" web sites where the only visible logo is the one Youtube embeds into all their videos).

I think you're barking up the wrong tree here. The bigger issue here is the collapse of the distinction between public and private realms and the fact that "publication" doesn't really have the same meaning online as it does offline.

The collection societies' claims are ridiculous. There's no way a collection society should be entitled to charge every single web site that embeds a video, especially sites that don't make any money. But the fact of how this is technically accomplished has nothing to do with why the collection societies are wrong here.

The real problem is that the collection societies are essentially claiming the right to a "tax" on participating in culture by sharing it. I suspect that this is a case where the collection societies may be within the letter of the law, and the law is the problem because its incentives are designed for an offline world.
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Anonymous Coward, 7 Oct 2009 @ 12:26pm

"For the most part, these collection societies are simply being greedy"

Wrong, they're being SELFISH. Stop using the wrong words. SELFISH != Greedy (or, in more modern terms, Selfish greedy).
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Anonymous Coward, 7 Oct 2009 @ 12:27pm

What if the video isn't covered by copyright?
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Anonymous Coward, 7 Oct 2009 @ 12:29pm

Re:
Err, forgot that HTML brackets don't work. Uhm.... I can't find a way around it either. There might be one but I don't know it.

Ok, Let me replace [ with open HTML brackets and ] with closed html brackets.

Selfish [] Greedy. There
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Anonymous Coward, 7 Oct 2009 @ 12:30pm

Re: Re:
or, the other way around, replace open html brackets with [ and closed html brackets with ].
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Dark Helmet (profile), 7 Oct 2009 @ 12:32pm

Re: Publication
"I would think that a video that is embedded in a web page counts as part of that web page regardless of how it is implemented technically."

Errr, what? Isn't kind of the same as saying, "I don't care WHAT all the evidence in the world tells me, Rue Paul is a woman dammit." Technicalities that ARE the difference MAKE all the difference.

"It's the experience of the end user that counts, not how it's hosted."

I'm going to stick with the Rue Paul in a strip club analogy on this one to refute that statement. After all, the end user might be experiencing a woman on stage, but that woman is hosting a penis (okay, that part is a terrible analogy, but it popped in my head and made me laugh).

"To borrow a phrase that you like to use for trademarks, no moron in a hurry is going to think he is looking at YouTube if he types in www.techdirt.com into his browser and views a video embedded there..."

Well, I have to disagree with you. Most of the embedded YouTube videos I see actually have the name YouTube mentione somewhere on the window, and certainly the post video interface that occurs after the vid either says or is recognizable as YouTube's. Either way, this ain't trademark law, it's societies specifically trying to define what constitutes a separate posting/uploading, and frankly they're full of shit. The embed is essentially a set of binoculars letting the viewer see something occuring REALLY REALLY far away. But when you look into the binoculars, what you see isn't happening in front of you, is it?

I'm pretty much in agreement w/you everywhere else in your post.
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Mike Masnick (profile), 7 Oct 2009 @ 12:36pm

Re:
Actually. including something into a web page is publication.

An embed code is identical to a link. Are you now claiming that if I link to something, I am also responsible for "publishing" the content at the end of that link?

I think you -- whoever you are -- need smarter technologists.
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Marcel de Jong (profile), 7 Oct 2009 @ 12:51pm

Re:
we'd still need to pay.

Thankfully some clever people already made scripts, .htaccess files and plugins to block the spider that B/S (aptly named business) will use.
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fogbugzd (profile), 7 Oct 2009 @ 1:01pm

Their job is collecting money, not producing content.
The job of the collection societies is to collect money. They do a lot of hand-waving about compensating artists, but mainly they collect money, keeping as much as possible and passing on what they have to to the big name acts that have been anointed by the record labels.

Their efforts are raising the cost of using music and videos, so the logical result is that less music and video will be used in this way. In the long run it hurts those who are creating music and video in ways that far outstrip the pittance they get back from the collection societies.
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Marcel de Jong (profile), 7 Oct 2009 @ 1:03pm

B/S indeed
This Buma-Stemra company was the same company that had invested it's collections badly, and had to report a loss over 2005 and 2007, thus it couldn't pay the songwriters. They are probably now trying to recoup that money over the backs of bloggers.

Thankfully politicians are asking questions about it (the Dutch green party has been on the forefront of this).

Oh and another juicy tidbit, the Buma-Stemra themselves said that the contract probably wouldn't stand up in court.
Quote from mr. Van Rij: "We think that it's legally sound, but a judge might decide otherwise."
http://www.nu.nl/internet/2096726/onduidelijkheid-blijft-kosten-embedden.html (bottom of the article, sorry only in Dutch)
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Jerry, 7 Oct 2009 @ 1:03pm

collection societies
To suggest that these collection societies are clueless about technological matters is to show your own lack of knowledge. They have some of the best tech people around on staff. They also have good in-house attorneys who know copyright law better than you can imagine. They are not obsolete, since their revenues have grown steadily over the last decade while the rest of the music industry is in turmoil. And it's not accurate to call them greedy, since most operate on a non-profit basis, paying out most of their revenues to songwriters, composers and music publishers. These organizations may not always get what they want, but they know what they're doing. The music industry is not a monolith -- it has many different elements which do not have the same interests or methods of operation. This is what I've learned during a lifetime in the music industry. You probably won't believe me, but I know this to be true.
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justdave, 7 Oct 2009 @ 1:09pm

More Crazy Stuff
What is really amazing is the lack of depth in these stories we all read. I'll click on an interesting sounding link only to find a one to three paragraph "story". Even the responses are often longer. What lazy reporting! These pieces are at best low grade filler.
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Adam (profile), 7 Oct 2009 @ 1:13pm

I'm willing to bet that the collection societies need their growing revenue to support their lawyers and lobbiests.
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Anonymous Coward, 7 Oct 2009 @ 1:48pm

Re: collection societies
"They have some of the best tech people around on staff."

Demonstrably false.

"They are not obsolete, since their revenues have grown steadily over the last decade while the rest of the music industry is in turmoil."

That has nothing to do with their obsolescence.

"And it's not accurate to call them greedy, since most operate on a non-profit basis, paying out most of their revenues to songwriters, composers and music publishers."

I'd point out how wrong this shilling is, but I'm too busy laughing.

"This is what I've learned during a lifetime in the music industry. You probably won't believe me, but I know this to be true."

If by "lifetime" you mean the 5 minutes since you've been a (bad) shill, and by "I know this to be true," you mean, "the propaganda told me so!", then okay.
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Larry McGill, 7 Oct 2009 @ 1:56pm

PA systems next?
If they can get away with collecting a fee for embedded videos does this mean that anybody that plays music across a PA system originating from a radio station could soon have to start paying for songs played? This is ridiculous.
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Anonymous Coward, 7 Oct 2009 @ 1:58pm

Re: Re:
Apply the moron in a hurry test.

I go to a web page. There is a video on that web page. I view that video on that web page. As far as I can tell, that video is part of that webpage.

If it was only a link, I would end up at Youtube to see the video, not viewing it on the original webpage.

A link which takes you off the page isn't the same as a video that does not. Even a moron in a hurry can see that.
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Dark Helmet (profile), 7 Oct 2009 @ 2:00pm

Re: Re: Re:
As I stated elsewhere:

Well, I have to disagree with you. Most of the embedded YouTube videos I see actually have the name YouTube mentione somewhere on the window, and certainly the post video interface that occurs after the vid either says or is recognizable as YouTube's. Either way, this ain't trademark law, it's societies specifically trying to define what constitutes a separate posting/uploading, and frankly they're full of shit. The embed is essentially a set of binoculars letting the viewer see something occuring REALLY REALLY far away. But when you look into the binoculars, what you see isn't happening in front of you, is it?
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Anonymous Coward, 7 Oct 2009 @ 2:07pm

Re: Re: Re:
That would be a moron in a hurry with a snazzy web browser, resolving redirects without you having to worry. Look at like this: a moron in a hurry goes over to your house, you have a tv on, would the moron think that the program on the tv is something you created, or would they think it came from some other source?
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Anonymous Coward, 7 Oct 2009 @ 2:14pm

"Mmmrmrm. Me hungry. Me eat own feet. Mrowmng! Mnrom-rom-mrom."

- the music 'industry'
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Richard (profile), 7 Oct 2009 @ 2:40pm

Re: Re: Re:
"Apply the moron in a hurry test.

I go to a web page. There is a video on that web page. I view that video on that web page. As far as I can tell, that video is part of that webpage."

The moron in a hurry test applies to trademark law not copyright.

However in this case you are that moron!

If you look at the little flashing line of text on the bottom left of your browser window you will discover that it is YOUR browser that assembles what you see from a number of different sources.

Your argument is tantamount to saying that referencing an article amounts to a new publication.

If you view the source of a page you will see exactly what is actually being "published".
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Anonymous Coward, 7 Oct 2009 @ 2:45pm

Re: Re: Re: Re:
If I were a moron I would wonder how all those tiny people managed to end up inside the magic box. Unless the television was very large and in high definition then I would attempt to join in the fun by walking straight into the screen.
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Rabbit80, 7 Oct 2009 @ 2:47pm

Re: Re: Re: Re:
In the UK the person watching the TV can be fined despite the fact that they don't live there if the property isn't covered by a TV license...

I have to agree with mike on the embedded video being no different to a link.. I often read blogs on my mobile and it doesn't show the videos directly! Besides which - Youtube earn advertising revenue from the video despite the fact that the video is shown as part of another site..
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Mike Masnick (profile), 7 Oct 2009 @ 2:52pm

Re: Re: Re:
Apply the moron in a hurry test.

Moron in a hurry test has no relevance at all here.

Moron in a hurry test is for trademark, and is to serve a single purpose: to divine whether or not there's confusion that would harm the consumer. That's all.

Copyright has nothing to do with confusing consumers or how they view things. It has everything to do with whether a copy is made.

In this case, NO ADDITIONAL COPY is made. The original site hosting the video already pays fees, so this would be double counting.
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ChurchHatesTucker (profile), 7 Oct 2009 @ 3:06pm

Re: Re: Re: Re:
"The moron in a hurry test applies to trademark law not copyright."

Give him a break, he was in a bit of a rush.
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Anonymous Coward, 7 Oct 2009 @ 3:18pm

Re: Re: Re: Re:
Which makes you the moron, because most morons in a hurry aren't looking at the little flashing whatever at the bottom of their browser.
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Danny Neleman, 7 Oct 2009 @ 3:20pm

Well...
Who cares if they're legally in their right to do this kind of thing and what should or shouldn't be regarded as embedding or publishing media. The main effect would be, people installing htaccess file to block those crawlers from those 'so called' f'ing geniuses hired by these stoneage organisations. The other part of the bloggosphere could drop music media all together with the lack of exposure for the artists it would otherwise get for free! How in gods name would that be benificial for any party including BUMA/STEMRA in the long run. The ongoing battle between BUMA's Internet "guru's" and the rest of the internet would be potentially more expensive than this would ever create in revenue.

How about that, being .... in the .... by the monopolist collector of your copyright fees.
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Anonymous Coward, 7 Oct 2009 @ 3:21pm

Re: Re: Re: Re:
You miss the point (which you are good at).

Moron in a hurry = someone not technically inclined, doesn't want to know how the internet works, just looks at the screen and sees something. They are in a hurry to see what is on your page, not interested in the plumbing that made it happen

There is no requirement for a copy to be made for publishing to occur. The test is the reverse: Would the page be the same without the inserted video. The answer is no, so a publication has occured.

As far as the moron in a hurry is concerned, he went to your site to see the video. Therefore, you must have published it in some manner, even if it is just a collection of other publications.
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ChurchHatesTucker (profile), 7 Oct 2009 @ 3:34pm

Re: collection societies
"To suggest that these collection societies are clueless about technological matters is to show your own lack of knowledge. "

BWAHAHAHAHAHAHA!
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Devonavar (profile), 7 Oct 2009 @ 3:41pm

Re: Re: Re: Re:
If you really want to push it, you could argue that every transmission (i.e. every viewer) produces a new copy, since the data is essentially duplicated from YouTube's server array to the end user's cache drive. And, one can imagine the collection societies arguing, they deserve to be paid for every "copy". I suppose the might argue that every copy duplicated across YouTube's server farm might need to be licensed as well.

They'd be wrong, but not because there aren't new copies being created. They're wrong because copying is the wrong thing to be looking at. Whether or not additional copies are made is irrelevant. So is how they are made. Collection societies are designed to compensate for something along the lines of "public performances". So, what should be considered is not how many places the video can be seen (the societies' view) or how that video is delivered (Mike's). What is relevant is how many times that video is seen as part of a "public performance", and who is putting on that performance.

Unfortunately, we lack a good definition of public performance in the online realm, so we get this confusion.

I applied the moron in a hurry analogy not because I think this has anything to do with trademark, but because a moron in a hurry would be able to tell you who is "hosting" the "performance" online (don't confuse this usage with hosting the file — I'm perfectly aware it's on YouTube's server). I think what the moron would say (and the collection societies ... who fit the paradigm of morons in a hurry quite well I think) is that the site which embedded the video is where the performance is happening. Similarly, if you invited that same moron into your house and he saw a show on TV, they would say that *you* showed them that show; the network (YouTube) merely made it available to be shown.

I think this is why the collection societies think they can get away with charging every web site ... they're used to charging every *venue*, not the distributors where the venues get their shows.

Where the societies get into trouble is in assuming a web site is the same as a public venue. Yes, web sites are publicly available, but that doesn't make embedding a video a public performance. *Some* web sites might be this way (mostly, YouTube and sites that specifically exist to show videos), but most embed for purposes other than performance — typically criticism, cultural reference, or as part of a new work.
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Danny Neleman, 7 Oct 2009 @ 3:51pm

I think allot of people outside the Netherlands over-estimate the capacities of such organizations like BUMA/STEMRA. It's a really small, broke and ICT-less organization. This whole programme is based on the technology the dutch company Teezr developed. Which raises the suspicion that they actually came up with the possibilities of claiming the fees due to the technology offered to them by Teezr rather than the other way around. Which would mean they are looking for a quick and dirty buck without thinking the consequences through. The loss of good-will, Bad PR and unleashing an ongoing battle with the internet not only unrepairably hurt this organization but also for the copyright holders they are representing.
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Marcel de Jong (profile), 7 Oct 2009 @ 3:57pm

Re: collection societies
If they aren't clueless about technological matters, they are doing an amazing job hiding that.

Non-profit, yet they pay less to songwriters and artists than to their own staff members...
For a small(er) band, a large part of the cost for printing CDs are the fees you have to pay to organisations like the BUMA, and they get nothing back, as they aren't the big name. Only the big names and big labels get some money from organisations like the BUMA-Stemra. It's not worth it, but you have to pay for it, as cd-printers refuse to print discs, if it doesn't carry the BUMA stamp of approval.
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ChurchHatesTucker (profile), 7 Oct 2009 @ 4:23pm

Re: Re: Re: Re: Re:
"There is no requirement for a copy to be made for publishing to occur."

I'd like to know what your definition of 'publishing' is. I'm genuinely curious, since it seems to have no relationship to any definition I've ever heard of.
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Anonymous Coward, 7 Oct 2009 @ 4:46pm

Re: Re: Re: Re: Re: Re:
Welcome to the 21st century internet.

You could make a website thatis nothing but includes of material off of other sites, iframed together into a hodgepodge of ugly. While you didn't make a copy of any of the content, you still did publish it together on a single webpage.

The technical "how" the material ended up on the website is not truly material, because the act of putting together a webpage to pull all that other material is the act of publishing.

The 20th century version? You cut articles out of newspapers and magazines. You assemble them onto a piece of paper, photocopy it, and give it out to your coworkers. Tada, you just published something.

Publishing is the act of making something directly available. The location of the content is not relevant, but it is a cute legal distraction that will certainly tie some 80 year old judges in knots.
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Anonymous Coward, 7 Oct 2009 @ 4:50pm

Re: Re: Re: Re: Re: Re: Re:
"The 20th century version? You cut articles out of newspapers and magazines. You assemble them onto a piece of paper, photocopy it, and give it out to your coworkers. Tada, you just published something."

Nice try, but as is typical with ignorant shills, you failed at analogies.

The 20th century version? You invent a system that allows people to view the original newspaper from their desk at home.

Oh, wait.
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..., 7 Oct 2009 @ 6:10pm

Public Performance ?
How is it a public performance if it is only being viewed / heard by one person?
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ChurchHatesTucker (profile), 7 Oct 2009 @ 6:11pm

Re: B/S indeed
"This Buma-Stemra company was the same company that had invested it's collections badly, and had to report a loss over 2005 and 2007, thus it couldn't pay the songwriters."

They should advertise on billboards: Your song was somewhere played/We thought you should be paid/But your funds we have mislaid/Buma-Stemra
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Irate Pirate, 8 Oct 2009 @ 5:03am

Someone made a good point about web browser rendering. Embeded videos are just links and always have been. It's your choice of browser and how you set it's options that dictate whether the video actually appears in a page. I use NoScript, an add-on for Firefox, which means embeded videos don't play at all unless I give it explicit permission. I can middle click the link which makes the video play alone in a new tab. Does that mean I now owe money to a collection agency?

I would also like to take this moment to remind folks that Jon Newton, who runs the site p2pnet.net, was recently sued by Wayne Crookes for posting a link in one of his articles which led to (allegedly) defamatory material. Wayne Crookes' illogical argument is that linking was the equivalent publishing. Unsurprisingly the Canadian court ruled that Jon was not responsible for anything written and published by another party on another website. This ruling was also held up a second time when Wayne Crookes appealed. Linking is NOT the equivalent of publishing. Imagine the greed driven insanity that would ensue if it were.

http://www.techdirt.com/articles/20081028/0054072663.shtml
http://www.techdirt.com/article s/20090918/0118426233.shtml
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Marcel de Jong (profile), 8 Oct 2009 @ 7:12am

Re: PA systems next?
Actually you already have to in that situation, as it's a public performance. Even just turning on a radio at the office counts as such, at least if you don't use earbuds/headphones.

Double billing is par for the course in music land. Radio station already paid a fee for the privilege of playing music on the air, and now businesses have to pay a fee for the privilege of listening to that radio station with your colleagues.

So Youtube already pays for the privilege of hosting (and spending bandwidth) a video owned by the music-cartel. And now you too will have to pay for the privilege of embedding that same video.

It's greed, pure and simple...
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Marcel de Jong (profile), 8 Oct 2009 @ 7:14am

Re: Re: B/S indeed
hehe Burma Shave... :D
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Bas (profile), 8 Oct 2009 @ 7:34am

Re: PA systems next?
@Larry McGill: we already have to pay for that in The Netherlands.
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Bas (profile), 8 Oct 2009 @ 7:36am

Re: Public Performance ?
It's about the potential.

Bars in Holland need a license for the music they play. Even when there's nobody in the bar, they still need to pay for that license.

Buma thinks the internet is the same. LOL.
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