The Music Licensing Swamp: Spotify Settles Over Failure To Obtain Mechanical Licenses

from the how-could-they-not-have-done-this? dept

A year and a half ago we wrote about a lawsuit, filed by musician/songwriter/Techdirt-hater (with a few perhaps surprising exceptions) David Lowery against Spotify, for failing to pay mechanical licenses. As we noted at the time, the more interesting thing to us beyond the lawsuit itself was how it demonstrated what an amazing clusterfuck music licensing is. That's because copyright law has not done a very good job keeping up with the times as technology changes (understatement alert).

Basically, each time a new technology undermines the way licensing worked in the past, Congress ends up duct-taping on some new kind of licensing regime. There are a bunch currently, nearly all of which can be traced back to different technological innovations from the past century and a half. And, then, the internet came along. And it wasn't entirely clear how the licensing regimes of things like radio, television, player pianos, and satellite radio fit into the internet. And, some seem to think the answer is: they ALL apply. At the very least, I don't envy the "licensing" team at the various music tech companies.

In our initial post, we noted that the issue seemed so complex that after talking to half-a-dozen copyright lawyers, no two could agree on what was actually happening with the lawsuit, or even if it was a legitimate case. The underlying issue had to do with mechanical licensing (a type of licensing which, as it's name suggests, goes all the way back to the early days of "mechanical" reproduction of compositions), and we were wondering how it could possibly be that a company as big as Spotify, whose entire story rested on the idea that it had properly negotiated licenses, had somehow failed to properly secure mechanical licenses. And, yet, a few months later, we noted that the Harry Fox Agency, an organization that many companies, including Spotify, Apple and others, use to handle these kinds of licenses, appeared to be scrambling to send out notices of intent (NOIs), which was something that should have happened way earlier.

After Lowery's lawsuit got combined with another similar lawsuit, it's now been announced that Spotify has settled the combined lawsuit and created a $43.4 million fund to pay for the mechanical licenses it failed to obtain properly in the first place. Now, there are still some who argue that mechanical licenses shouldn't even be necessary for a streaming service, but it doesn't appear that anyone has the desire to fight that one out in court, and it's understandable why. Doing so would almost certainly lead to any service making that argument getting slammed by musicians for trying to avoid paying songwriters.

Either way, Spotify has paid its way out of this and I remain baffled by the fact that it hadn't just done the right thing in the first place -- though I'm still curious if the real culprit here is the Harry Fox Agency, and if Spotify and HFA have had a long conversation or two about how this all came down. The real lesson in all of this, though, is that music licensing continues to be a complete murky, swampy mess, almost designed to make it that much harder for licensed music services to exist. While Congress dithers with silly ideas about "moving" the Copyright Office, if it wasn't to actually reform copyright laws, it should start by fixing and modernizing the crazy and overly complex licensing regimes.

Filed Under: copyright, david lowery, licenses, mechanical licenses, music
Companies: harry fox agency, hfa, spotify

Music Licensing Shop Harry Fox Agency Appears To Be Scrambling To Fix Its Failure To Properly License Songs

from the well,-look-at-that... dept

A couple of months ago, I wrote a long post trying to dig into the details of David Lowery's class action lawsuit against Spotify. In the end, while there was some question over whether or not streaming music services really need to get compulsory mechanical licenses for producing reproductions of songs, it seemed like the fact that such licenses are compulsory and can be obtained easily via having the Harry Fox Agency issue a "Notice of Intention" under Section 115, it seemed crazy to think that the various music services had not done that. In fact, we noted that the only way the lawsuits made any sense was if the various music services and HFA ignored this and didn't send out such NOIs. At the time, I noted that this would be a surprise, and it could mean the services were in deep trouble.

Or perhaps not a surprise... and, yes, some folks may be in deep trouble. Beyond Lowery's lawsuit, a few other similar lawsuits have been filed. Earlier this month, Tim Geigner wrote about a very similar lawsuit filed by Yesh Music against Tidal. Of course, what didn't get as much attention is that Yesh filed very similar lawsuits against a bunch of other music services as well, including Google Music, Slacker, Line Corporation (which runs Mix Radio) and Guerva (which I think is a misspelling of the music site Guvera). Yesh also sued Deezer a few months ago.

One of the key questions that came up following the reporting on all of these cases is the Harry Fox Agency's role in all of this. HFA, an organization that was set up by the publishers themselves is supposed to be responsible for managing compulsory licensing for the vast majority (though not all) of popular songwriters (remember, HFA is about compositions/publishing, not sound recordings). But it's beginning to look seriously like HFA just fell asleep on the job and didn't bother to do the one key thing it was supposed to do for all these music services: file Section 115 NOIs.

Both David Lowery and another songwriter, Ari Herstand, have recently posted examples of HFA suddenly sending them NOIs that appear to be rushed and are showing up way after they're supposed to. I rarely agree with Lowery about anything, but it's seriously looking like HFA totally fucked up here. Big time. Here's the notice Lowery received: As Lowery notes, this NOI was sent on February 16th, 2016, but was signed by a Spotify exec who left the company in 2015, for a song that showed up on Spotify in 2011 and using an HFA address that didn't exist until 2012. Basically... it looks like HFA is rushing around trying to send out NOIs that it failed to do properly, and doing a pretty half-assed job about it. And that seems especially stupid when it comes to issuing those NOIs to the guy who is already suing over those missing NOIs.

Herstand just received a similarly late NOI from HFA for his music appearing on Apple Music. As he notes, his notice says the music should appear on Apple Music as of March 10th of 2016, but it's actually been there since Apple Music launched last summer. He also notes this is the first NOI he's ever received from HFA, while he has received plenty of NOIs from the much smaller HFA competitor Music Reports "on a regular basis."

So, given all that, it sure looks like HFA didn't do the one thing that it was supposed to be doing all along, and that's... going to be bad news for someone. The big question is who? All of the lawsuits have been against the various music services, but without being privy to the contracts between HFA and the music services themselves, I'd be shocked if they didn't include some sort of indemnity clauses, basically saying that if music isn't licensed because of HFA's own failures to do its job that any liability falls back on HFA.

And, if that's the case, HFA could be on the hook for a ton of copyright infringement. If it's true that it's basically been ignoring the fairly simple NOI process for a lot of artists, then that's going to be a major scandal -- but one that seems a lot harder to pin on the music services themselves. They went to HFA and hired the company to handle mechanical licenses. There may be more going on behind the scenes here, but at a first pass, based on what appears to be happening, HFA may be in some seriously deep trouble.

Filed Under: ari herstand, copyright, david lowery, licensing, mechanical licenses, music, noi, notice of intent, section 115
Companies: apple, harry fox agency, hfa, spotify

Tidal Sued For Unpaid Royalties And Cooking The Streaming Counts

from the welcome-to-the-club dept

It's been no secret that Tidal, Jay-Z's foray into the music streaming business, hasn't exactly had the success it was supposed to have. In the wake of all the angry sentiment about just how much other streaming services were paying musical artists, Tidal positioned itself as artist-friendly, the option for fans that want to make sure musicians get paid. It sounded great, except now Tidal finds itself joining the club of streaming services facing legal action over artist royalties.

Over the weekend, Yesh Music Publishing and John Emanuele (of the duo American Dollar) filed a lawsuit against Tidal for $5 million. The lawsuit claims that Tidal licensed at least 118 songs by American Dollar without the group’s permission and hasn’t paid the royalties it owes for streaming the songs. The complaint also says Tidal is “deliberately miscalculating” its per-stream royalty rates and failing to send reports to the American Dollar about streams of their songs.

If this all sounds incredibly familiar, it should, because these are the same accusations leveled against the other streaming services. This particular action is similar to David Lowery's suit against Spotify, in that it appears to revolve around mechanical licenses for compositions used in streaming music. While Tidal will likely argue that it properly licensed the works via its agreement with the Harry Fox Agency and via Section 115, it's not exactly settled that streaming services are covered by Section 115. Under Section 115, Tidal would serve a "notice of intention", or NOI, in order to get the license if it is unsure of whom it should be paying royalties to for a given composition. Tidal, like many streaming services, works with a third party to manage their licensing and NOIs for them (more on that in a moment). Indeed, the suit directly claims that no NOIs were filed, but sadly doesn't include the Exhibits in that PDF so that the reader could determine exactly which compositions are in question in this case.

Defendants failed to serve NOIs or timely NOIs for Plaintiffs’ and the Putative Class’ Copyrighted Compositions. Defendants’ failure to serve NOIs before the start of distribution precludes the creation of a compulsory license, and it does so both as to copies distributed prior to service and as to copies distributed thereafter. The tremendous power granted to Defendant under Section 115 is balanced by the strict obligations regarding notice. Defendant intentionally failed to adhere to its Section 115 obligations, while enjoying all of the benefits afforded by Section 115.

The filing goes on to acknowledge that Tidal has a third-party administrator managing the royalty payments and serving NOIs for them. That third-party is the Harry Fox Agency, the same company that was involved in Lowery's Spotify suit, along with a company called Music Reports. The suit claims that Tidal's ownership is named on the suit because those ownership entities "know full well that Harry Fox and Music Reports do not even try to serve NOIs...or calculate proper mechanical royalty rates unless expressly directed."

On top of this, the suit claims that Tidal is being shifty with how royalties are both calculated and reported.

Defendants’ systematic underpayment of royalties was done in several ways. First Defendants deliberately miscalculating the per-stream royalty rates by including millions of streams Defendants do not pay royalties in the calculation. This diluted the paid per-stream rate for royalty payments by up to 35%. Next Defendants systematically undercut the calculation of mechanical royalties to Plaintiff and the Putative Class by illegal deals with equity investor partners 65. Finally, Defendants failed to serve monthly detailed reports as required by the statute.

Tidal, as expected, is pointing back to the third-parties as being responsible.

TIDAL is up to date on all royalties for the rights to the music stated in Yesh Music, LLC and John Emanuele’s claim and they are misinformed as to who, if anyone, owes royalty payments to them. As Yesh Music, LLC admits in their claim, TIDAL has the rights to the Master Recordings through its distributor TuneCore and have paid TuneCore in full for such exploitations. Their dispute appears to be over the mechanical licenses, which we are also up to date on payments via Harry Fox Agency our administrator of mechanical royalties.

The entire catalogue in question streamed fewer than 13,000 times on TIDAL and its predecessor over the past year. We have now removed all music associated with Yesh Music, LLC and John Emanuele from the service. This is the first we have heard of this dispute and Yesh Music, LLC should be engaging Harry Fox Agency if they believe they are owed the royalties claimed.

Except, again, nobody seems to agree on whether or not Section 115, the basis for the compulsory license, applies to streaming sites like Tidal.

But the larger lesson in all of this is just how certain a thing it is that any new service that is in any way disrupting will be targeted and vilified. Keep in mind that Tidal was supposed to be the artist-friendly streaming service for music -- the one that artists would be excited to work with, rather than those other guys. And here we are, not terribly far from the birth of the service, finding the same attacks from artists on it as were levied against the incumbent streaming services. Either the artist-owned Tidal tried to be artist-friendly but couldn't because of the insane nature of music licensing, or the artist-owned Tidal found being so-called "artist-friendly" to be impossible in the modern era of music services. Either way, the cure for this isn't more vilification of streaming services, it's getting copyright and licensing on sane, stable ground.

Filed Under: american dollar, compositions, compulsory licenses, copyright, john emanuele, mechanical licenses, noi, section 115, streaming
Companies: harry fox agency, tidal, yesh music publishing

Understanding David Lowery's Lawsuit Against Spotify: The Insanity Of Music Licensing

from the dig-deep dept

We generally don't talk much about musician David Lowery around here any more. We covered a few stories about him a few years ago, and he seemed to take it ridiculously personally, and continues to attack me with false and misleading claims. Every so often someone sends me a link to a blog post he's written and it's almost always laughably wrong (for example, in one recent story he falsely claimed that "Google" is on Spotify's board -- because a former Google exec who is no longer at the company also happens to be on Spotify's board). So, take the following with that caveat in mind. I tried to be objective in the analysis, but some will likely suggest that's impossible given his years-long attacks on me.

Lowery, if you don't know, is a decently successful musician who has ranted against any new service or business model for musicians. When he was first getting attention over this it was about iTunes, but lately it's been things like Spotify, Pandora and YouTube. He appears to pine for the "old days" when there was less competition and a clearer career path for musicians like himself. So his concern is always that these companies are somehow "cheating" him and his friends out of money. Mostly this has been idle, if frequently misleading, whining. But right before the new year, it turned into an actual lawsuit against Spotify that he's hoping to turn into a class action. You can read the whole complaint here (or embedded below), though I warn you: to understand it, you need to go pretty deep into the arcane nature of music licensing.

Here's the thing about copyright law: historically, as new technologies come along, copyright has a lot of trouble dealing with them. And, typically, the pattern is that the industry freaks out and tries to stop the new technology, but eventually someone duct tapes on a new bit of copyright law to cover it. Unfortunately, this means that there are all these weird peripheral sections of copyright law that are supposed to apply to specific circumstances, which then get made obsolete by later technological situations, and it leads to lots of confusion and anger... and lawsuits.

Stick with me through the next few paragraphs. It's going to seem ridiculously impossible to ever do anything that involves licensing music after you get through all of this, in part because it's been made so cumbersome thanks to all this duct tape.

So, everyone knows that music is covered by copyright. And, if you follow these things moderately closely, you may also know that the copyright on a recorded song involves two different copyrights: there's the copyright in the sound recording (for the musicians who recorded the song, but usually held by the record label) and a copyright in the composition which is held by the songwriter. But things get much more complex even beyond that. And that's because there are different exclusive rights under copyright law, such as rights for reproduction, distribution and public performance.

On top of that, there are different types of licenses for these different parts and different rules for how such licenses can be obtained and who can obtain them in which situations. The rules and licensing are different for terrestrial radio than they are for satellite radio than they are for "non-interactive" streaming radio (e.g., Pandora) than they are for "interactive" streaming services (e.g. Spotify). Pandora, for example, gets to make use of compulsory licenses relying on a rate set by a group of old judges known as the Copyright Royalty Board (you may have heard that they just raised the rates, but not nearly as high as some were asking for).

With Spotify, on the other hand, most of the licenses actually had to be negotiated. But because of all the different aspects, there was a lot to negotiate. There are deals to be made with the copyright holders for the sound recordings (mostly the labels, some of whom took equity stakes in Spotify to make those deals happen) along with licenses from the "Performance Rights Organizations" (PROs) like ASCAP and BMI for "performing" the works. Then there are mechanical licenses which are for reproducing or distributing the composition, and cover a variety of things -- and are generally available in a compulsory fashion (i.e., if you want them, as long as you pay, you can get them). They're called "mechanical" licenses from back in the day when reproducing a work actually was a big "mechanical" process. When someone wants to cover a song, they can get a compulsory mechanical license for that (which is why artists cannot stop anyone from covering their songs -- much to Prince's dismay). You also need a mechanical license to reproduce and distribute a "phonorecord" of a musical work.

Most mechanical licenses are managed and sold via an organization called The Harry Fox Agency (HFA), who works on behalf of music publishers (companies who tend to hold the copyrights on the musical compositions, rather than the actual recordings) that teamed up to create the agency a long, long time ago. There is also a complex bit of copyright law, known as Section 115, which gives the specifics on compulsory licensing of mechanical licenses in certain circumstances, if certain rules are followed. But here's the crazy thing: it's 2016 now, streaming services have been around for years, and still no one's entirely sure if Section 115 compulsories actually apply to them. It's never actually been tested and many services (including Spotify) assume they do, but a potentially big question is whether or not they really do. Isn't that kind of insane?

There are actually even more things that go into copyright licensing for music and I simplified some elements of this, but hopefully this gives you an idea of how absolutely insane all of it is. But... it's necessary to understand all of that to figure out what's going on with Lowery's lawsuit. Almost all of the press coverage doesn't delve into any of this, and just says that he's claiming Spotify isn't paying for some of the music that's available on the service. But it's not a case where Spotify is just putting songs on its service willy-nilly. Spotify absolutely is licensing the sound recordings from the copyright holders, and then the performance licenses from the PROs. And it's getting mechanicals via HFA and/or via Section 115.

However -- and here's the big issue -- while Spotify gets the recordings directly from the copyright holder, and thus knows who to pay the royalties to, those songs often do not include the necessary metadata to connect the publishing/songwriting side of things to the recordings. So while the company knows who to pay for some parts of what it needs to pay, for others it has no idea. Under the law, the money for such royalties needs to be kept in escrow to pay at some later time when the details are sorted out -- which is something that Spotify claims to do. The company recently announced that it's building a giant database to connect the publishing/songwriting info with the database it already has on the sound recordings, in order to distribute the $17 million or so it's been holding in escrow. This seems like a move in the right direction, but to some songwriters, they argue that it's "proof" that Spotify didn't properly license songs. That's possible, but unlikely. Spotify is holding the money in escrow because it that's the requirement when you do not have the necessary info to pay the compulsory licenses.

Lowery is arguing that Spotify is simply failing to obtain the necessary mechanical licenses for many of the compositions in its database, including a bunch of his songs. There is, separately, an "unfair business practices" claim that we'll also discuss in a minute. Over the past week or so since the news of this lawsuit came out, I've spoken to half a dozen different copyright lawyers to try to understand the details, and they're all at least slightly perplexed by the lawsuit, with some noting that details need to come out later to further explain the argument.

A few copyright lawyers I spoke to were flat out confused as to why Spotify would even need a mechanical license in the first place, seeing as it's streaming music, rather than "reproducing" and "distributing" it such that Spotify users end up with a full copy to keep. There are two possible responses to this that I (and some other lawyers I spoke to) can come up with, though Lowery's lawsuit does not clarify which of these he's arguing (or if it's something else entirely). One is that Lowery considers merely streaming music to be "distribution" and "reproduction" of a "phonorecord." Indeed, this appears to be the argument that Audiam, a company that has been deeply involved in this issue, makes on its website: every stream requires a mechanical license royalty.

One copyright lawyer I discussed this with called such an argument "meritless" but I actually wonder how the courts would shake out on it. It would get down pretty deep into the weeds of the technology behind streaming, and what counts as a "reproduction" and "distribution" of a work, and whether or not the ephemeral copies that are created in the streaming process require mechanical licenses even though they disappear as soon as they're played. You may recall that one of the key copyright cases a few years ago, regularly referred to as the "Cablevision" case but technically Cartoon Network v. CSC Holdings, found that such ephemeral copies are not copies for the purpose of copyright law. But that's technically only law in the 2nd Circuit, not the 9th Circuit where Lowery's case was filed.

The Supreme Court refused to hear the appeal in the Cablevision case. If Lowery's case does focus on such ephemeral streams, it could reopen that dangerous can of worms, and raise serious questions about copyright for cloud computing (remember, a study showed that the ruling in the Cablevision case was a key driver in jumpstarting the cloud computing industry).

Still, there may be a plausible argument that Spotify is "distributing" a song when it streams it, but again that's not exactly settled law. Either way, Spotify appears to be acting as if that is the case anyway in trying to secure mechanical licenses, so perhaps this won't be a huge deal in the case.

The other, perhaps more plausible, explanation is that the issue is really only in cases where Spotify allows users to actually download a song for offline play (a feature for Spotify Premium users). In those cases, it's much more compelling that Spotify would need a mechanical license, because the copies are not so ephemeral. But, it would also explain why the numbers for the mechanical royalties are so much lower (the fact that set off so much focus on all of this), because the mechanicals wouldn't apply in most streaming situations.

In either case, Lowery might run into a second stumbling block: Spotify can (and likely will) argue that it complied with the rules required in Section 115(b) for a "notice of intention" in order to get the compulsory mechanical license. Basically, Spotify would argue that it did what is necessary to get a compulsory mechanical license when it was unsure of who held the publishing/songwriting rights on a song. If it actually did do this, Lowery's case may be dead in the water -- though I'm guessing Lowery's lawyers will argue that it failed in some aspect of properly using Section 115 -- or, as mentioned above, that Section 115 doesn't actually apply to streaming services. If Spotify did not actually follow Section 115's rules, then Lowery's case suddenly is a lot stronger. Similarly, if a court suddenly determines that Section 115 doesn't apply... well, then a lot of streaming services are in serious trouble. Update: As noted by a commenter, the Copyright Office publishes the list of Section 115 Notices of Intent that it gets -- and it does not appear that Spotify is on it. So that suggests that Spotify may not have followed the rules of Section 115, which may mean the company is in deep trouble.

Separately, Lowery argues that Spotify's actions are "egregious and willful" -- the latter of which is necessary to seek a maximum statutory damage amount of $150,000 per work infringed. Again, assuming that Spotify did in fact do as it has claimed, and followed the rules for Section 115 compulsory licenses, it's going to be much more difficult to convince anyone that the actions were "willful." Similarly, if you read this article by a copyright lawyer who appears to agree with Lowery (though it was written before Lowery's lawsuit), you see that as soon as Spotify was aware of how to pay the money, it did so. That's going to make the whole "egregious and willful" claim an uphill battle. But, we shall see...

Finally, there's the "unfair business practices" claim. Here's the crux of that one:

On information and belief, Plaintiff alleges that Spotify: (a) depresses the value of the royalties owed to Plaintiff and the Class Members’ for use of their Works through an arbitrary and non-negotiated payment structure; and (b) captures and holds funds which are otherwise distributable and earns interest thereon, thereby profiting off its own unlawful conduct. These business practices are unlawful and unfair pursuant to California Business & Professions Code § 17200

This again seemed like a non-starter to a few copyright lawyers I spoke to. First, it seems like it's just another copyright claim, hidden as a state unfair business practices claim -- meaning it might get tossed out. Copyright law is (nowadays) entirely a federal issue, and attempts to bring in state laws are generally tossed out as federal copyright law "preempts" such claims. Furthermore, since copyright law allows holding such royalties in escrow, it seems difficult to argue that this is somehow illegal under California law. And I have no idea what is even meant by "depresses the value of royalties owed."

In the end, there's a lot that's not entirely clear about the lawsuit, and it's left many people scratching their heads. It is possible under a unique set of circumstances (some of which would involve fairly egregious behavior on the part of Spotify) that Lowery may have a case here. Similarly, if a court decides that Section 115 doesn't actually apply to streaming services, that would give Lowery a major win. But there are many, many arguments for why the lawsuit has little chance (Update: see the update above about why Spotify may not have complied with Section 115, which, if true, makes Lowery's case stronger). The one issue that concerns me most, however, is whether or not he will actually start arguing that ephemeral copies represent a "reproduction" and/or "distribution" under copyright law. Either way... stay tuned.

Filed Under: copyright, david lowery, licensing, mechanicals, music streaming, section 115, songwriting
Companies: harry fox agency, hfa, spotify

Broken Copyright: Jonathan Coulton Is Actually Infringing Copyright, But Glee Is Not

from the how-messed-up-is-our-system dept

Want to know just how messed up our copyright system is, and just how out of sync it is with the way people feel about copyright and what makes sense? Just know this: between Jonathan Coulton and Fox, concerning the dispute over Fox's Glee using Coulton's rendition of Baby Got Back on their show -- you could make an argument that Coulton may have actually exposed himself to more copyright infringement problems than Fox did.

Allow me to explain. When the whole thing first broke, we thought that Coulton took the right approach in basically just telling his fans about it. Then, when we heard that he was exploring legal issues with his lawyers, that actually seemed like the wrong approach to take, even if he was upset about things. According to various reports, right before the show aired, Fox finally reached out to him and explained that what they did was perfectly legal (probably true) and that Coulton should be happy for the exposure. Coulton's response was quite reasonable -- asking if that meant Fox would be crediting him. Since the answer was no, the promise of exposure rings a bit hollow.

That said, it's not entirely hollow -- because of Coulton's ability to whip up (completely reasonable) righteous indignation about this from his fans via social media. As he told Mashable in the link above:

"They were right. I did get exposure, but it didn't come from anything they did. It was sympathetic outrage on Twitter, and bloggers and journalists talking about how crazy it was."

[....] "Sometimes I forget that Twitter is something beyond just being snarky at the Oscars. All of a sudden something happens and you remember that this is an amazing, powerful tool." Coulton says. "My fans have a keen sense of justice, and this idea that we should be attributed for our work. People who are of the Internet realize that attribution is what we trade on."

And, of course, he's taken it a step further as well, re-releasing his original song on iTunes, but calling it Baby Got Back (In the Style of Glee) and promising to donate the proceeds to two charities associated with Glee: The VH1 Save the Music Foundation and the It Gets Better Project. Song sales are doing well, with Coulton's version climbing the charts, while the official Glee version of the song is riddled with one star reviews from his supportive fans (even though he's not encouraging people to do this) and is nowhere to be found on the charts.

Still, what strikes me as perhaps most interesting about all of this is that as you explore the legal issues, it is entirely possible to come out with an argument that says that if anyone is infringing on copyright here... it's Jonathan Coulton. Let me be clear on this: I am not saying that anyone has directly accused him of this, nor am I suggesting (in any way) that he should be accused of this. I'm just showing how misaligned the law is with what most people think of as a sensible regime today. So why might Coulton be in trouble? As he's noted repeatedly, he paid the compulsory license to cover the song via the Harry Fox Agency. Doing so means that he agreed (pdf) to abide by Section 115 of the Copyright Act.

What's that? Well, check it out here. Here's the relevant part for our discussion:

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

Previously, we and many others had suggested that the changes that what Coulton had made could possibly be protected as unique creative works. However, he more or less gave up that claim when he used the statutory license, rather than doing a direct deal with Sir Mix A Lot, or whoever else holds the rights on the song. That also means, however, that Coulton did not live up to Section 115 and his cover, in all likelihood, violates the original copyrights, because the license he got does not cover the very different arrangement and melody he created.

That is, by any normal measure, insane. But that's the law. This whole situation has (ridiculously) exposed Jonathan Coulton as a "pirate" and Fox as being perfectly within the law. And that just seems silly.

Filed Under: baby got back, copyright, covers, glee, jonathan coulton, licenses, sir mix a lot
Companies: fox, harry fox agency, news corp.

Harry Fox Agency Claims Copyright Over Public Domain Work By Johann Strauss

from the of-course-they-would dept

The Harry Fox Agency (HFA) is the main licensing agency for mechanical licenses (i.e., actual reproductions of recorded works -- which is different from things like ASCAP who handle licenses for performances). While it doesn't get into as many ridiculous copyright scrapes as others, it still has been known to insert itself where it doesn't belong at times. The latest, courtesy of BoingBoing is that HFA made a copyright claim on a YouTube recording of Thailand's Youth Orchestra (Siam Sinfonietta) playing the Radetzky March by Johann Strauss. The work is 164 years old and clearly in the public domain. Furthermore, since HFA only covers mechanical licenses, and this is a new performance, not a use of a recorded song that HFA has rights over, the whole thing is completely ridiculous. The director of the orchestra, Somtow Sucharitkul, sent a letter to HFA (and posted it to Facebook) expressing his amazement not only that HFA made the initial claim, but that it reinstated the claim after he initially disputed it:

I disputed this claim of course ... and in every case where I have disputed such a claim on youtube of ownership of a work clearly in the publc domain, the claim was released in a few hours.

I am amazed that Harry Fox Agency has reinstated the claim and that youtube now informs me that HFA may sue me or force me off youtube. The claim is patently absurd; Johann Strauss Sr. died in 1849.

Representatives of the Austrian embassy were at the concert from which the clip is taken and as this piece is practically a second Austrian national anthem, I am sure they would have objected to an improper violation against a national treasure.

Several well known music critics and artists have already written to you pointing out the absurdity of this claim as I tweeted a story about it.

I'm sure this will end in some sort of apology, but shouldn't we be concerned that we keep seeing these kinds of things happening? Copyright holders have become quite lax in doing any sort of verification before silencing content creators. It's a huge problem.

Filed Under: copyright, johann strauss, ownership, public domain, radetzky march, somtow sucharitkul
Companies: harry fox agency

Copyright Killbots Strike Again: Official DNC Livestream Taken Down By Just About Every Copyright Holder

from the yeah,-THIS-makes-everyone-respect-copyright-MORE dept

Here we go again. Less than 24 hours ago, content-protection bots killed a livestream of the Hugo Awards, thanks to the brief appearance of fully approved clips from an episode of Dr. Who. The whole situation was completely absurd to anyone harboring the tiniest vestige of common sense, but IP-protection software isn't built on common sense: it's built on algorithms.

This time, content protection via crawling bots have taken down another approved, perfectly legal stream. The victim this time? The Democratic National Convention's official stream, hosted at YouTube. As Wired reports, if you're looking to catch up on last night's activities, including a speech by Michelle Obama, don't bother:

The video, posted by the official YouTube account for the convention, DemConvention2012, was blocked, according to YouTube, for ostensibly infringing on the copyright of one of many possible suspects:

This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.
Sorry about that.

When contacted by Wired for comment, Erica Sackin, an Obama campaign staffer who works on digital outreach, had no knowledge of the outage, asked this reporter for the url and then upon seeing the takedown, said, "I'll have to call you back."

The video has since been updated to state that "This video is private." There's probably quite a bit going on behind the scenes at the moment, but fortunately Wired snagged the complete list of claimants for future reference. Take a good, long look at that list. There's a few of the usual suspects in there, including AP, UMG and Warner, entities not known to be shy about claiming content that isn't theirs.

Now, these entities aren't directly responsible for this takedown. This is more of an automated match situation, but it still doesn't change the fact that the inherent stupidity of the action, automated or not, does absolutely nothing to lock down stray, unmonetized content and absolutely everything to highlight the ridiculous nature of copyright protection in a digital age.

If Google can work with copyright holders to produce content matching software, it seems like it might be possible to designate certain accounts or entities as "off limits" from the wandering killbots. If the stream is authorized by, I don't know, the party of the current President of the United States, maybe, just fucking maybe, everything's "above board."

Sure, defining legitimate, pre-approved accounts may prove to be as difficult as determining which content is infringing and which isn't, but this should be the sort of thing that content holders should be working toward, rather than simply moving from disaster to disaster, smugly secure in the knowledge that filthy file sharers are getting content-blocked thousands of times a day.

Nice going, huge list of content holders. Your boundless, maximalist enthusiasm is just another nail in the coffin containing what's left of copyright's reputation.

Filed Under: automated takedowns, contentid, copyright, dnc, live streaming, youtube
Companies: ap, dow jones, emi, harry fox agency, ny times, sme, umg, umpg, warner chappell, wmg