Court Says ASCAP Can't Selectively Remove Songs From The Blanket License It Gives Pandora
from the some-sense dept
The legacy recording industry's ridiculous war on Pandora has reached some really ridiculous levels, especially as ASCAP has continually tried to pretend that Pandora was trying to stiff artists. The details suggested something entirely different. After staying quiet for a while, Pandora finally highlighted the true story, which showed that the claims about Pandora were completely bogus. It was actually ASCAP who was playing sick games with Pandora, trying to remove the right to play certain songs, without even letting Pandora know which songs.Historically, Pandora has paid essentially the same rate as all other forms of radio, a rate established unilaterally by the performing rights organizations, ASCAP and BMI, in the late 1990s. In November of last year, following a lengthy negotiation, Pandora agreed with ASCAP to a new rate, an increase over the prior amount, and shook hands with ASCAP management. Not only was our hand-shake agreement rejected by the ASCAP board, but shortly thereafter we were subjected to a steady stream of “withdrawals” by major publishers from ASCAP and BMI seeking to negotiate separate and higher rates with Pandora, and only Pandora. This move caused us to seek the protection of the rate, also recently negotiated, enjoyed by the online radio streams of broadcast radio companies. It’s important to note that these streams represent 96% of the Internet radio listening hours among the top 20 services outside of Pandora (talk about an un-level playing field). We did not enter this period looking for a lower rate – we agreed to a higher rate. But in a sad irony, the actions of a few small, but powerful publishers seeking to gain advantage for themselves has caused all songwriters’ royalties to go down. Any characterization of Pandora as being out to cut publishing rates flies in the face of the facts.And while not highlighted there, Pandora also noted that ASCAP refused to let Pandora know which tracks were being withdrawn, leading to uncertainty over potential liability if it played the wrong track:
During negotiations, ASCAP and the publisher increased the pressure by refusing to provide Pandora the list of tracks that were being withdrawn, exposing Pandora to copyright infringement liability of up to $150,000 per work. At Pandora’s scale, such liability would be enormous.As we noted at the time, this appeared to be in direct violation of a long-term antitrust agreement ASCAP has with the DOJ, given ASCAP's massive market power. Some in our comments suggested it was crazy to suggest this move violated the antitrust agreement, but a court has basically ruled strongly in favor of Pandora, noting that it goes against the agreement to selectively remove songs from the blanket license, and allowing Pandora to continue to stream such songs. Basically, the court rules that the consent decree from the antitrust fight means that ASCAP can't divide up the various copyrights to separate out things like "new media rights," but rather if it has a song in its catalog, it must license it under its blanket license.
ASCAP’s argument is predicated on the Copyright doctrine of “divisibility of rights” within a copyrighted work. It is true that “[t]he Copyright Act confers upon the owner of a copyright a bundle of discrete exclusive rights, each of which may be transferred or retained separately by the copyright owner.” But while the Copyright Act allows rights within works to be alienated separately in general, [the consent decree] imposes restrictions beyond those imposed by the Copyright Act on ASCAP. [The consent decree denies] ASCAP the power to refuse to grant public performance rights to songs to particular users while, at the same time, retaining the songs in question in its repertory.I await ASCAP's next press release insisting that Pandora is the one playing games....
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Filed Under: antitrust, blanket license, streaming
Companies: ascap, pandora
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Re:
If Universal Media just stops licensing to ASCAP it has a completely different problem. PROs were established to reduce infringement and improve collection of royalties owed to artist and recording companies. Those problems all come back with te decision to withdraw. By only providing certain musicians (the new, up-and-coming talents that will be the next big thing) to licence their music individually, either the talents don't become hits, or infringement goes up. Neither of which is good for business.
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Where are these "crazy" comments, Mike?
Now, the fanboys will blow this off, and the theoretical new reader dropping in will puzzle for a couple seconds then shrug, but assertions of "crazy" suggestions and other assertions tossed in as fact are typical Mikeness. Anyone who questions His Mikeness gets censored by the fanboys in a mis-use of the "Report" buttons. The above is ALL the text the AC wrote in that post, yet it was censored. See link:
http://www.techdirt.com/articles/20130613/14324223460/legacy-recording-industry-claims-pandor a-is-playing-sick-joke-seeking-same-rates-others-pay.shtml#c373
Readers should also look into Pandora, which Mike is clearly keen on (for unknown reason) in several posts; it pays artists VERY low rates that some famous ones complain about (see link), and at best, is just a new middleman that hopes to replace the old, will do nothing better for artists.
Pink Floyd: Pandora's Internet radio royalty ripoff
http://www.usatoday.com/story/opinion/2013/06/23/pink-floyd-royalties-pandora-column/24474 45/
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Re: Where are these "crazy" comments, Mike?
Whenever someone is talking about crazy, they mean you.
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Re: Where are these "crazy" comments, Mike?
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Here's a typical take from a sane site:
Takes breather from kicking penniless songwriters to plead for more dosh
Controversial webcaster Pandora, under fire for running its music streaming business with the iron grip of a plantation owner, is returning to Wall Street for a cash injection.
http://www.theregister.co.uk/2013/09/17/plantation_op_pandora_wants_more_cash/
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Getting used to it
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Re: Where are these "crazy" comments, Mike?
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Re: Here's a typical take from a sane site:
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Yup
...Now, I really gotta get to work.
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Re: Here's a typical take from a sane site:
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Step two - After they pay up sue them out of existence.
Step three - Wait for a new company to fill the void.
Step four - Repeat
-Profit
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Re: Yup
average_joe just hates it when due process is enforced.
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Re: Here's a typical take from a sane site:
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Re: Re: Here's a typical take from a sane site:
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Re: Re: Re: Here's a typical take from a sane site:
The crazy dude that believes Google is the source of all evil?
Sometimes I thing he and ootb are the same person, but it couldn't be the Register is a fun tabloid I like most the titles if for no other reason for the laughs I get out of those, but come on, every single time I am unfortunate to click on a story written by that dude I regret it immensely, but I digress The Register wouldn't hire a doorknob would they?
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Re: Re: Re: Re: Here's a typical take from a sane site:
Nah, Orlowski has his own little outlet that he can control and presumably benefits financially from his trolling. ootb is a barely coherent mess who can't handle the fact that a free debate on someone else's site allows people to mock and dismantle his arguments or choose simply not to view them. Orlowski at least manages to come across as balanced even if his articles are not.
"The Register wouldn't hire a doorknob would they?"
He's the executive editor of The Register (http://www.theregister.co.uk/about/company/contact/)
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Re: Re: Re: Re: Re: Here's a typical take from a sane site:
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Not that there shouldn't have been, just saying it's amazing what the entertainment industry can get away with...
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Philanthropist Music Lovers
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Re: Philanthropist Music Lovers
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Re:
...and given that you didn't bother to address the actual complaint in the article, nor do you. What does what you had to say have to do with the central problem that ASCAP were telling Pandora that they didn't have a blanket licence but refused to tell them which songs weren't covered? Why is that a good tactic for dealing with a company trying to provide your customers with a legal way to access music and pass royalties on to the creators of that music? Why do the publishers think that screwing over legal channels is any way to provide a long-term solution to piracy (which would be most peoples' alternative, not suddenly going from free streaming to purchasing albums)? Why are these tactics being used against Pandora, but not offline radio outlets?
"legacy recording industry"
"ASCAP represents SONGWRITERS"
How is the method by which songwriters have their work licensed not part of the legacy industry? Was it revamped after CD sales started falling?
"Sorry, Mike, they can't... beg people on kickstarter for money to pay for their groceries."
Ignoring the t-shirt idiocy (do you people really have no other arguments?), why can a songwriter not get hired for his work through Kickstarter or another non-legacy industry method? He could even negotiate a royalty mechanism if he wished. Why do you feel that licensing through ASCAP and other legacy methods is his only option?
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Re:
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Simple solution
Whatever the solution is, collection societies must go. They are just rotten, greedy corruption hives.
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Re:
You seem to ignore one key factor: the rates Pandora pays through ASCAP are HIGHER rates then any other source type. That means, given the level of play Pandora produces, that Pandora was already the single greatest income source to ASCAP.
Pandora had agreed to raise the rates it was paying. It wasn't until ASCAP withdrew its offer that Pandora began to attempt to find ways to protect itself and lower its rates.
If you blanket licence your music to a internet radio with a terrestrial arm for x, why would back out of the deal with pandora that gets you more (y), in the hopes that you could collect EVEN MORE (z)? The fact that the royalty rates are different depending on how you broadcast such that the larger the likely audience and the more plays you are likely to produce, the more you pay per play, is ass backwards, failing to make sense in any other market, doesn't suggest that ASCAP (and soundexchange) are abusing their monopoly powers is absurd and you want to give them more?
So rather then take the greatest windfall to songwriters since vinyl made the idea of being a songwriter financially possible, they want to jack up the rates to what, 50% of pandoras revenue? so pandora folds and is out? what sense does that make?
Please cite me a source for your 50%/4% statistic. And then And then show me where in Pandora's Financials you suggest
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Re:
Would you kindly tell me what part of "if it's in your catalogue, then it's covered by the blanket license you issued" doesn't deal with that and smack ASCAP down?
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