Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters: 'Write A Hit Song If You Want Money'

from the well-that's-just-great dept

We keep hearing from folks how the collections societies in the US for songwriters and composers, ASCAP, BMI and SESAC, are supposedly the "good guys" in that they actually give money to the actual musicians, and they aren't like the RIAA at all. But the evidence continues to be lacking on that front. In fact, it increasingly looks like they're doing a lot more harm to most musicians. Earlier this year, we noted that their aggressiveness in getting just about any small venue to pay up fees was killing off open mic nights and other sorts of venues that allowed musicians to play live. Mike points us to the news that many venues are simply giving up on live music. The problem? Well, ASCAP, BMI and SESAC are all demanding huge fees. Even the restaurants that don't bring in cover bands are being told they need to pay up, just in case a musician happens to do a cover in the middle of a wholly original set. The licensing organizations don't seem to care, they just want you to pay, just in case. When asked how they know that covered music is being played, they admit they don't:

"Basically, we don't know," said Dave Ascher, the SESAC Music Licensing Consultant who sent the letters. "To make a long story short, there's no way, logistically, for us to know whether on a day-to-day basis they're playing SESAC music."

But, just in case, you need to pay up. Of course, rather than doing that, the venues are just giving up on live music, providing fewer places for musicians to perform, hone their craft, and build up a following (and a business model).

As for the claim that these organizations help bring in money for those musicians, well, that's not seen either. We've already seen how they only give money to big name artists in most cases, because that's all they're able to track. In fact, the article talks to one musician who's upset about all the venues closing, but is still registering his songs with ASCAP. When asked if he's received any royalty check at all, the answer was no. So, how do the collections organizations respond? They tell them to become more famous:

"I'm sorry to hear that, but what I would like to tell him is that he needs to write a hit song," BMI's Bailey said.

How nice. They funnel all the money to big name artists, force venues to close so new artists can't become famous, and then when asked about giving money to those up-and-coming artists, they flippantly tell them to become more famous.

At some point, musicians and songwriters need to learn that these organizations are not doing things in their best interests at all. They're simply bureaucracies to funnel money to big names, while limiting the competition.

Filed Under: collection societies, songwriters
Companies: ascap, bmi, sesac

TV Broadcasters Suing Songwriters' Org SESAC Over Pricing Power

from the tug-o'-war dept

Missed this one when it first came out, but Copycense points us to the news that TV broadcasters have sued SESAC, one of the collections agencies for songwriters and composers (the smallest, after ASCAP and BMI), claiming that SESAC is violating antitrust laws in how it prices music used in television shows -- especially for syndicated shows. The details are really quite fascinating. Local stations quite often run syndicated shows (such as sitcom reruns). When they buy the rights to run those syndicated shows, the package includes all of the related copyrights except for performance rights for any of the music included. Those have to be purchased separately by the broadcasters themselves. Now, for SESAC, representing the songwriters, this presents a golden opportunity. It's the only thing standing between the broadcaster and being able to show the syndicated shows -- and thus, it can ask for extremely high prices, or -- more commonly -- pressure the broadcasters into a high-priced "blanket license." Since the broadcasters can't change out the music (it's in the shows already), they generally have no choice but to go along. So, the argument goes, SESAC effectively has a monopoly position, and is abusing it.

Of course, the real "monopoly" here is copyright. At a quick glance, it certainly looks like SESAC is doing exactly what copyright allows -- but the structure of licensing for syndicated TV content allows SESAC to make life difficult for the broadcasters. So, I'm not really sure SESAC should really be faulted here, as it seems to be doing exactly what it was enabled to do thanks to overly broad copyright laws. At the same time, it also makes you wonder why the broadcasters don't go back to the TV program owners themselves and demand that they bundle the music performance rights as well, since there's more negotiating power there. So, while it does seem unfair for the broadcasters as the market is currently structured, I'm not sure it's an antitrust violation on SESAC's part. More a problem with how the industry licenses are set up, combined with copyright being way too broad in such situations.

There's also a separate interesting element to this lawsuit -- which is why it's SESAC being sued rather than ASCAP and BMI. ASCAP and BMI are both already limited due to previous antitrust fights and consent decrees against them, whereas SESAC has been more or less free to act this way. Either way, it's yet another lawsuit concerning aggressive use of copyright to try to demand as much money as possible, even for music that is a small part of an overall presentation of content.

Filed Under: antitrust, copyright, licensing, music, pricing power, syndication
Companies: ascap, bmi, sesac

Sorry ASCAP, A Ringtone Is Not A Public Performance

from the nice-try-though dept

ASCAP and BMI have been pushing all sorts of ridiculous claims over the past few months, trying to squeeze extra money out of pretty much everything, rather than actually doing right by those they represent and helping them adapt new business models based on giving people a reason to buy. Beyond claiming that Congress should make sure their royalties never decrease, they've also been saying they deserve money for things like YouTube embeds (even though YouTube already pays them for that same traffic) and the 30 second previews on iTunes and other music stores. However, the most ridiculous of all was trying to claim that ringtones are a public performance, and thus mobile phone providers need to pay ASCAP/BMI. The thing is, ASCAP and BMI already get paid for ringtone purchases -- but this was an attempt to get a second payment on top of that for the fact that people might hear the ringtones.

Thankfully (as a whole bunch of you have sent in), a judge wasted little time totally rejecting that reasoning. The court pointed out that the Copyright Act is pretty clear that there's no royalty needed for any sort of "performance" that isn't done for commercial advantage and "customers do not play ringtones with any expectation of profit." It's a pretty complete rejection of an obvious stretch by ASCAP.

We might hope that ASCAP will take this and begin to recognize that the best way to serve songwriters is helping them embrace new business models, but we expect that instead they'll keep looking to squeeze more money and double dip from other providers... while continuing to pay industry insiders to smear those who want to protect consumer rights.

Filed Under: copyright, double dipping, public performance, ringtones, songwriters
Companies: ascap, bmi, eff

As If Performance Royalty Threat Wasn't Enough, ASCAP, BMI Want To Increase Radio Royalties

from the squeeze-squeeze-squeeze dept

While the RIAA keeps pushing and pushing for a performance tax for radio stations, it looks like ASCAP and BMI on the songwriter/composer side are apparently now looking to increase their existing tax on stations (via Michael Scott). As you probably know, right now, stations do pay royalties to ASCAP and BMI for the "performance right" on music they play on the radio, which gets distributed to the composers and songwriters. But performers don't get a royalty, as Congress recognized (correctly) that radio was free advertising for musicians. So, the first battle is about adding another tax, but this newer battle would be about increasing the existing one.

Again, this shouldn't be a surprise. As we've been detailing lately, ASCAP, BMI and other similar groups around the world have gone on something of a rampage lately, trying to get larger and larger fees from just about any use of music -- including ringtones, the 30-second previews on iTunes, and YouTube videos embedded in blogs (despite the fact that YouTube already pays a fee). Sucks to be a terrestrial radio station these days. Not only do you have a ton of new competition from other sources, but the rest of the industry is looking to tax you until you're gone.

Filed Under: copyright, radio, royalties
Companies: ascap, bmi

ASCAP, BMI Demanding Payment For 30 Second Previews At Web Stores

from the are-they-insane? dept

It's been really stunning to see just how little dignity groups like ASCAP and BMI have in trying to suck every last penny out of any kind of musical usage, without ever once considering the damage they're actually doing to songwriters. It's as if the folks who run these groups have no concept of the actual impact of their crazy demands. In just the last few months, we've seen them try to squeeze more money out of music video games -- apparently not comprehending how much those games help promote musicians and sell more product. Then there was the fancy trick, where they claimed that websites that embedded music videos from YouTube had to pay even though they were already getting paid by YouTube directly. They just wanted to get paid twice. And remember back in the summer when they claimed that the ringtone playing on your phone required a public performance license on top of the royalties already paid? They have no shame.

So, I guess it should come as no surprise at all to find out that their latest target is the 30 second previews that you hear on iTunes or Amazon.com. Yes, they're claiming that those 30 second previews should count as a public performance, and they want to get paid. Now. And they're asking Congress to make it happen -- because, as we've been learning recently, if you're inept at running an actual business, just go to the federal gov't and ask them to bail you out.

Rick Carnes, the head of the Songwriters Guild of America -- and who, we've been reliably informed, is a big fan of this site (that's sarcasm) after our previous articles debunking some of his more absurd claims -- explains the situation:

"Yesterday, I received a check for 2 cents. I'm not kidding. People think we're making a fortune off the Web, but it's a tiny amount. We need multiple revenue streams or this isn't going to work."

Talk about entitlement culture. Because Rick Carnes is unable to structure a smart business model, and thus makes pennies, everyone else needs to just cough up and pay? Yeah... that's reasonable. How about rather than trying to squeeze every penny out of everyone else (and then funnel it to the top artists instead of the smaller artists, anyway), you spend some time actually understanding basic business models -- such as ones where you convince someone that something's worth paying for, rather than just demanding Congress give you a cut of everything, in a way that harms the very musicians you claim to represent?

And, of course, as the article above notes, it's a flat-out lie that songwriters aren't getting paid for a lot of this stuff:

"These guys are afraid that the business model is shifting away from public performances to a model of private performances," [David] Potter [from the Digital Media Association (DiMA)] said. "This is a turf battle. They are saying, 'The songwriters aren't getting paid.' Baloney. Songwriters are getting paid. They're paid sync rights and (mechanical) rights. They aren't getting paid for the public performance in a download because there is no public performance in a download."

This is a pure money grab by people who don't want to come up with a business model demanding free cash from those who did come up with a better business model. They're blaming everyone else for their own unwillingness to adapt.

Filed Under: performance fees, previews, rick carnes, songwriters
Companies: ascap, bmi

How Performing Rights Groups Funnel Money To Top Acts And Ignore Smaller Acts

from the nice-trick dept

It's no secret that most of the traditional "recording industry" really is structured almost entirely to help the big name acts, but whenever we write about the collections organizations like ASCAP and BMI we get angry people sending in emails and comments insisting that it's unfair to lump those two in with the RIAA, since they're really out to help the actual musicians, even the small guys. Uh huh. Of course, we've already shown how ASCAP and BMI and their overly aggressive attempts to collect royalties from just about everywhere actually have been known to harm up-and-coming singers, such as by destroying the ability for many venues to host open mic nights. ASCAP has been particularly aggressive lately in making bizarre claims about how embedding YouTube videos requires a license (despite the fact YouTube already pays ASCAP -- so it wants to double count) and how ringtones represent a public performance. These are pure money grabs that make it that much more difficult for anyone to help promote up-and-coming musicians and songwriters. Is it any wonder, in the meantime, that the organization is spending time setting up efforts to try to push back against people who support open culture and content sharing? It apparently would prefer that the songwriters they "represent" not know about these efforts that actually do quite a bit to harm the vast majority of songwriters out there.

But, back to the original point. ASCAP, BMI and their supporters insist that they're not as bad as the big, mean RIAA, and that they're especially focused on providing important royalties to less well known artists. Except... even that may be questionable, at least when it comes to live performance royalties (admittedly, a smaller segment of overall royalties). Reader btr1701 sent in some email exchanges from a mailing list, which I won't share directly since I don't have approval, concerning a jazz musician trying to find out why she doesn't receive any live performance royalties, despite knowing that these organizations collect them, supposedly on her behalf. In response, she's told that ASCAP and BMI only distribute that royalty money to "the top 200 grossing US tours of the year." If you're smaller than that? Too bad. Except... they do have one minor exception. If you play "serious music" (no joke), then they'll pay you your royalties. So, the musician asks what is "serious music" and is told it's "generally considered to be classical music."

The musician tried re-registering her own (jazz) compositions as "serious music" but it "does not appear to have made any difference whatsoever" and she notes that she is "yet to receive a single penny... for any US performance or radio broadcast of any kind" despite the fact that her music has been performed in the US for almost ten years, and "the vast majority of performances of my music take place in the US."

I went looking for some more details, and it appears that, indeed, ASCAP and BMI have a policy in place to only provide performance royalties to the top 200 grossing tours in the US. If you're a "smaller" act, the only way to get paid is to be an opening act on such a tour. Otherwise? Too bad, you're on your own. Aren't you glad you signed with ASCAP or BMI? Update Good clarifications in the comments on this. Despite what the musician was told originally, it appears that it's not that ASCAP and BMI only pay the top 200 tours, but that they only monitor them (it's not explained how they know ahead of time which are the top 200) in order to figure out who to pay. The end result, of course, is functionally quite similar. If they're only monitoring the top 200 grossing tours, then the likelihood of them finding out about songs from less well known composers is close to nil. But those big names? They get more than their fair share.

Filed Under: collections societies, money, royalties
Companies: ascap, bmi

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

from the good-luck-with-that dept

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.

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

Connecticut Town Tells ASCAP, BMI, SESAC To Get Lost Over Royalty Bills

from the get-lost! dept

Three years ago, the town of New Milford, Connecticut got a bill from ASCAP demanding $280 in licensing fees, because the local town center sometimes will have music playing. Even at that amount, the mayor felt it was ridiculous, since it was a municipality playing music for non-profit community purposes. So the town council voted to ignore the bill, tabling it "indefinitely." As far as I know nothing else has happened between ASCAP and New Milford, but reader Bill Waggoner recently alerted us to the news that BMI and SESAC -- the other two collection societies in the US -- sent bills to New Milford as well. BMI's was a whopping $3,000. SESAC's was $1,500.

After being asked about it, BMI realized that it had made a "mistake" in calculating the bill, and lowered it to $305 (funny that they don't make mistakes in the other direction, do they?). However, the town council has told them to go take a hike. "They're not going to get that either" was the quote from council member Roger Szendy. The town's mayor, Patricia Murphy, says she's standing up for the principle of the whole thing, claiming that it's silly that a municipality should have to pay. BMI apparently says it's not going to sue, but it hopes that the city will "do the right thing."

I'm guessing that BMI (and ASCAP) realize it would be a public relations nightmare to sue a municipality, but if other cities start taking similar principled stands, you have to wonder if they'd reconsider.

Side Note: As regular readers know, it's our common practice to link to our source for information on stories. In this case, however, our main source is The News Times. I had the story about this open in my browser for a few days before getting around to writing it up. Then I discovered that The News Times locks up its content after a few days. So... I can no longer actually get to the article or send any traffic to the newspaper site. Perhaps I don't quite get the economics of news publishing, but I would imagine ad traffic from a bunch of our readers visiting their site would greatly outweigh the expected value of people actually paying $3 to read the article (yes, that's what they want). Oh well. I guess it's just their loss.

Filed Under: collections societies, connecticut, new milford
Companies: ascap, bmi, sesac

ASCAP Now Claiming That Your Mobile Phone Ringing Is A Public Performance

from the pay-up dept

Ah, those collection societies just never learn, do they? We've discussed in the past how ASCAP once threatened the Girl Scouts for singing songs around the campfire, but in the past few years it's been ASCAP's counterpart in the UK that's been in the news the most for things like threatening small business owners after calling them on the phone and saying they hear music in the background or threatening a stable owner for playing the radio to her horses. I guess ASCAP was feeling a bit left out. Its latest move is to claim that legally purchased ringtones on mobiles phones, playing in public places, represents a public performance for which it is owed royalties. Songwriters and music publishers already are paid royalties on ringtone purchases, but ASCAP is claiming that buying the file is entirely different than "the performance" (i.e., the phone ringing).

In the EFF's response to ASCAP, it notes that copyright law makes a specific exemption for performances made "without any purpose of direct or indirect commercial advantage." ASCAP counters that even if that's true, only the owners of mobile phones can make that assertion, but the mobile operators (AT&T, Verizon, Sprint, etc.) still need to pay up for performance rights because they are commercial entities, even if the use of the phones is not. The EFF goes on to point out how this reasoning does not mesh with the law, the case law, or the intended purpose of copyright.

On top of this, even if, in some bizarre, twisted interpretation of the law, a ringtone playing on a phone was a public performance, how would it be the mobile operators' liability to pay? That would be like saying that Apple should pay ASCAP royalties because songs it sells on iTunes could potentially be played through speakers publicly somewhere. Perhaps I shouldn't be giving ASCAP ideas...

However, this is not a surprise. It's simply the way industry groups (even those representing the songwriters, rather than the labels) have always worked. It's always about "extending" rights. That's why copyright was broken down eventually into different types of rights -- including distribution rights and performance rights, because the "old" rights didn't fit the new technologies. It's a particularly obnoxious trick to claim that, because a single file can be used in multiple ways (for both distribution and performance), it is now subject to both types of royalties. The only reason those separate royalties were broken out in the first place was due to angry demands from these sorts of groups about how the old "rights" didn't cover new media versions of content. To then double back and claim multiple coverage is beyond obnoxious.

Filed Under: copyright, music, public performance, ringtones
Companies: ascap