Honda Tried To Get Jalopnik To Dox Commenter, Delete Posts, Meets The Streisand Effect Instead

from the hi-honda dept

Criticism is part of life, of course, and I tend to believe that people show their true selves most transparently when they show how they deal with criticism. Unfortunately, we've covered entirely too many stories involving people and companies responding to online criticism poorly here at Techdirt. Typically, these unfortunate responses amount to trying to censor the criticism, but it can more dangerously involve the attempted silencing of journalism as well as threats of legal action against those making the critical comments.

Too many times, websites and web services cave to this sort of censorship. But not everyone. Gawker Media, about whom I could fill these pages with criticism, appears to be pushing back on once such attempt levied against its site Jalopnik. Apparently, car-maker Honda took a negative view of some comments made at the site, purportedly by a Honda employee. For some reason, Honda decided that this distinction meant that it could not only silence the comments, but that it should receive help from the site in outing the commenter. The whole thing starts off, as seems so often the case, with some rather mild criticism in the form of a comment.

In December, a commenter calling him or herself HondAnonymous, posted a string of comments on these posts claiming to be a technician at Honda’s research and development facility. People on the Internet make claims like that all the time, but HondAnonymous seemed able to back them up with actual information about the development of the NSX and other cars. The most interesting bits were complaints about the NSX’s Continental tires (“they are garbage”) and how newer Honda engines have an issue “with the studs on the cat either backing out of the head or snapping altogether.”

Interesting, if not earth-shattering. A lot of it sounds like normal car development. The first one is a complaint we’ve seen in various early NSX tests, and the last is probably a recall waiting to happen. But earlier this month, Honda’s lawyers contacted us to say that information posted by HondAnonymous “is confidential information owned by Honda R&D Americas, Inc., and posts by that user of such confidential information breaches a contractual obligation of confidentiality owed to Honda R&D Americas, Inc.”

As Jalopnik notes, it wasn't them that posted the information. Instead, it was a commenter within the open commenting system Gawker Media uses. Regardless, apparently Honda's attorneys requested not only that all comments by the user be taken down immediately, but they also requested that the site turn over all identifying information about the user to them so that they could hunt down the leak. Think about this for just a moment and you'll see the problem: Honda wants Jalopnik's help in figuring out who this commenter is, while also demanding that the content be taken down because it violates a contractual confidentiality agreement. However, Jalopnik isn't obligated in any way to help Honda, regardless of what private contracts may or may not have been violated.

In typical Gawker fashion, Jalopnik gleefully is posting about all this, Streisanding the issue back into the news when it might otherwise have died off quickly.

It’s pretty egregious for a corporation to try to bully a news organization into deep-sixing comments from its own readers. It’s far more egregious to threaten to subpoena us if we don’t dox one of those readers. The good news is we couldn't dox HondAnonymous even if we somehow wanted to. He or she used an anonymous burner account, and we don’t track passwords, logins, or IP addresses for any of our users. HondAnonymous’ posts will stay up.

To Honda, or any other automaker: If you would like us to delete the comments of our readers or expose their identities (which, again, we can’t do anyway) again, please let me know! I am more than happy to drag your intimidation tactics into the public eye for all your customers and prospective buyers to see. Govern yourselves accordingly.

So, in trying to silence and out a critic, Honda instead finds themselves the subject of reports about the attempted silencing of the critic, whose criticism is once more in the public light. Bang up job, lawyers!

Filed Under: anonymity, comments, contracts, doxxing, jalopnik, news sites, streisand effect
Companies: gawker, honda

US Government Successfully Issues Contract For Open Source Code... For $1

from the why-that's-1/37-of-a-screw dept

One of my very first jobs in Silicon Valley was to try to help an internet startup get a big juicy contract with the US government (specifically the Department of Defense). The whole process was a disaster of epic proportions, in which I learned a ridiculous amount about government procurement, none of it good. At one point, I believe the company I worked for was paying a 5-figure-per-month "retainer" to an ex-high ranking military guy, mainly so that he would go out and drink a lot of bourbon with his DoD buddies and award us a no-bid contract before anyone realized it should be put out to bid. And, of course, as an internet startup, we didn't have a GSA contract, and had to find a sham "partner" who would officially get the contract, under which we'd be a subcontractor. And, of course, we were asking for millions of dollars in government cash, and the technology we had in place wasn't anything like what the DoD was actually looking for. In short, the whole thing was a complete mess. That was two decades ago, so I'd hope that things had changed, but we've heard so many stories of the ridiculousness of government procurement, that I doubt it's changed that much.

But... there are glimmers of hope. And a neat little technical division of the GSA, known as 18F, which is modeled on startup culture and bringing a much more innovative take on technology to the government (it's the same group that's going around making the rest of the federal government encrypt their websites...), recently ran an experiment which (somewhat unexpectedly to all involved) resulted in the GSA awarding a $1 contract for a bit of open source software. And, yes, that's ONE DOLLAR.

A few weeks back, 18F announced this experiment in "micro-purchase" contracts, with the idea being to see if they could create a quick and simple process to both (1) do small focused contracts and (2) make it easy for smaller tech firms to actually provide their products and services to the government. So 18F posted the details of a specific problem it was trying to solve to Github, and then created a Google form, to serve as a sort of blind reverse auction. Here's how 18F described things:

If you’re interested in bidding, the closing time for the bid is 12 p.m. on Thursday, October 29, 2015. The opening bid starts at $3,499, and the lowest bid at the closing time will have 10 working days to ship the code necessary to satisfy the criteria. If the criteria are met, the vendor gets paid. If the criteria aren't met the vendor shall not receive payment, the next lowest bidder will have the opportunity.

Got it? Makes sense, as a way to try to keep costs down, but not to make it so crazy low that it's not worth someone's time (or where they're not able to deliver). Except... no one expected someone to (a) bid $1 and (b) then deliver working code that not only met the requirements, but exceeded them. But that's what happened:

Then, there was the $1 bid.

When we received the $1 bid, we immediately tried to figure out whether it was intentional, whether it was from a properly registered company, and whether we could award $1. We contacted the bidder and we confirmed that the bid was valid, that the registration on SAM.gov was current, and that the bid would be the winning bid. It was a plot twist that no one here at 18F expected. This unexpected development will no doubt force us to rethink some of our assumptions about the reverse-auction model.

In some respects, this result was the best possible outcome for the experiment. It proved that some of our core assumptions about how it would work were wrong. But the experiment also validated the core concept that open-source micro-purchasing can work, and it’s a thing we should try to do again. A few weeks ago, micro-purchasing for code was just an idea, but now that we’ve done our first experiment, the data demonstrate that the idea has potential and can be improved upon.

You can see the "winning" $1 pull request by Brendan Sudol over at Github, which went above and beyond the requirements:

Not only did Brendan Sudol meet the requirements of loading the data, the new code had 100 percent test coverage, an A grade from Code Climate, and included some new functionality to boot.

18F notes that the experiment turned up a few other interesting tidbits, including that of the 16 bidders, 8 of them registered to be a government contractor on SAM.gov after the project was announced (showing that, indeed, the process of becoming a government contractor appears to be getting much easier). They also noted that the highest bidder was for $740 with the smallest (obviously) being $1. The most common bid was $50.

Obviously, the $1 bid is both a bit of a gimmick, and something where Sudol recognized that it wouldn't be that much work to provide the code and it apparently seemed like a project worth doing. I doubt that we'll regularly see the government awarding $1 contracts, and the GSA is hardly likely to become the government version of TaskRabbit or Mechanical Turk. But it's still interesting to see the ways in which the terrible inefficiency of government purchasing might go down -- and more recognition over the idea that, if the government just needs a few lines of code, it doesn't need to award a multi-million dollar contract to some stodgy old "services" company.

Filed Under: $1, 18f, brendan sudol, contracts, gsa, micro-purchase, open source, us government

Sony To Court: Of Course We're Allowed To Contractually Screw Over Our Artists

from the that's-how-this-works dept

For quite some time now, we've been pointing out that the hatred directed at Spotify and other music streaming services in some circles is misplaced. Spotify is paying out a ton of money to the copyright holders (approximately 70% of its revenue). The problem is that much of that money is staying with the labels rather than being passed on to the artists. Earlier this year, in fact, we wrote about a detailed report by Ernst & Young, in cooperation with a European music label trade group, that revealed just how lopsided some of these deals end up being: That's the breakdown of how subscription fees are distributed. The vast majority goes to the labels and only a small portion goes to artists and songwriters directly. Now, some of that label money may make it to artists through other means -- eventual royalty payments should an artist ever recoup, but we all know how rare that is.

And that brings us to an interesting lawsuit that was actually first filed last year from a bunch of artists associated with American Idol, filed by "19," a management company connected to the show. Originally, the lawsuit had been a typical one concerning the question of whether online streaming counts as a license or a sale for the purposes of the contracts (music contracts pay much higher rates to artists for licensing rather than "sales" and there have been a bunch of lawsuits around that). However, once the Sony-Spotify 2010 contract was leaked a couple of months back, the lawsuit was amended to specifically argue that Sony chose to structure its deal with Spotify in a way that purposely kept revenue from artists.

Sony has filed its response, which pretty much directly admits that it has every right to negotiate contracts with third parties that screw over artists:

The implied covenant does not require SME to structure its affairs in whatever way yields the greatest royalties for 19

It further cites an earlier ruling in this very case, in which the judge said that Sony Music is under no obligation to maximize revenue for artists if it benefits Sony:

...as Judge Abrams already has held, SME can “act on its own interests in a way that may incidentally lessen the other party’s anticipated fruits from the contract.”

Furthermore, Sony points to the details in the contract that it signed with 19, which flat out says that Sony is free to receive revenue in other forms that don't lead to royalties.

19 cannot claim that the parties intended that SME would not receive consideration on a general or label basis (such as in the form of an advertising credit), rather than on a basis tied to the use of a particular sound recording, because 19 expressly agreed that it “shall not be entitled to a share of income received by or credited to [SME] on a general or label basis."

The filing from Sony also (rightly) mocks the claim that Sony did some "self-dealing" because it has "control" over Spotify and wanted to benefit Spotify. Noting that it holds approximately 6% of the equity in Spotify, it points out how that is a rather small equity position, and not one that gives it any real control.

Sony Music is absolutely right here. 19 signed a contract that handed over control to Sony Music, and Sony Music appears to be living up to that contract exactly. That the contract itself has a bunch of ways in which Sony can screw over the artists isn't Sony breaking the contract. It's the artists and 19 agreeing to a bad contract that they no longer like -- something that all too frequently happens in the recording industry. Sony's actions in its dealings with the artists and with Spotify may be morally questionable on the issue of whether it's really helping artists, but from a legal and contractual standpoint, it's difficult to see how 19's argument has much of a chance in court. It seems likely to get tossed out pretty quickly.

But, the big point remains: in the end it's not the music services that are to blame for small royalty checks to artists. It's the bad deals that artists themselves continue to sign with labels.

Filed Under: american idol, artists, contracts, labels, royalties
Companies: 19, sony, sony music, spotify

Donald Trump's Lawsuit Against Univision Is Absolutely Hilarious

from the yes-we'll-add-the-obligatory-xkcd dept

Donald Trump seems to be showing off what would happen if your prototypical internet troll had way too much money at his disposal. As you may have heard, he's putting on a big show of "running" for President, though as many have recognized, the move appears to be a hell of a lot more about getting himself publicity (thankfully, at least some news organizations are properly categorizing stories about Trump as entertainment rather than politics). Of course, the plan to get more attention may be backfiring somewhat, as some of the ridiculous comments he's made "on the campaign" are coming back to bite him -- including Univision cutting ties with him over the Miss USA telecast and NBC dumping both the pageants and his Apprentice series (that thing is still on?).

In response, Trump has filed what has to be one of the funniest lawsuits we've seen in a long time against Univision over the cancelled deal. It honestly reads like one of those nutty conspiracy theory lawsuits we see all the time, often filed pro se. You'd think that Trump would have trouble finding lawyers willing to file nuttiness on his behalf, but apparently there's always someone. It even resorts to the worst trolling tactic of internet commenters: complaining that his "First Amendment rights" are being violated because Univision dropped him. And it all involves a conspiracy involving Hillary Clinton. Seriously.

While Univision has claimed in the media that its decision to cut ties with MUO came in response to certain comments by Mr. Trump during a June 16, 2015 campaign speech announcing his candidacy for President of the United States, the decision was, in reality, a thinly veiled attempt by Univision, a privately held company principally owned by longtime Clinton Foundation donor and current Hillary Clinton fundraiser, Haim Saban, to suppress Mr. Trump's freedom of speech under the First Amendment as he begins to campaign for the nation's presidency and, in recent weeks, has dramatically risen in the polls while expressing critical views of Mrs. Clinton. Little else can explain Univision's decision to not only abandon its contractual relationship with MUO, but also, upon information and belief, pressure NBC to follow suit and cut longstanding ties with Plaintiffs nearly two weeks after the statements were made.

First of all, as all of you (minus a few trolls) are currently screaming right now, no the First Amendment has absolutely nothing to do with this. We'll let the obligatory xkcd explain: The statement is also entirely superfluous to the lawsuit as well, as none of the actual legal claims have anything to do with his First Amendment rights. Apparently Trump could get the lawyers to throw that bit into the description of the case, but when it came time to make actual claims, even the lawyers wouldn't go so far as to make a First Amendment claim.

Also, "little else can explain?" Really? Actually, there are tons of other explanations, with many of them being a hell of a lot more plausible than any fear of Trump being a legitimate contender for the White House -- for example, the actually stated reason that Trump out and out offended the entire country of Mexico with some ridiculous statements.

Next up in the internet troll playbook, we have the ridiculous claim of "defamation" over statements that the person doesn't like, but which are clearly statements of opinion, rather than fact:

In a move which can only be described as both tasteless and defamatory, on June 25, 2015, Mr. Ciurana, Univision's President of Programing and Content, then posted a photo on his official Univision Instagram account comparing Mr. Trump to Dylann Roof, the 21 year old who was recently arrested in the murder of nine (9) African-Americans attending bible study at a church in Charleston, South Carolina, one of the worst hate crimes to ever take place on U.S. soil. While Mr. Cuirana would later remove the defamatory post, the damage was already done: almost immediately, Mr. Ciurana's post was picked up by the media and became the subject of hundreds, if not thousands, of press articles, yet another example of Univision's dubious efforts to create a false narrative in an attempt to upset Mr. Trump's longstanding personal and business relationship with the Hispanic community.

If you're curious, here's the Instagram that Alberto Ciurana put up: It's pretty clearly a somewhat weak attempt at humor, mocking the hair cuts of Trump and Roof. Tasteless? Perhaps, but there's no law requiring anyone to be tasteful in their internet jokes. Defamatory? Not in any way, shape or form. Not even close. And yet, unlike the non sequitur (and incorrect) First Amendment claims earlier, the lawsuit actually does claim defamation.

It's entirely possible that there are legitimate issues concerning breach of contract here, but even most of that seems like a stretch. Because Univision didn't just cut ties with Trump, it actually agreed to pay the full licensing amounts it promised for the next five years (totaling $13.5 million). In other words, Trump actually didn't lose any direct money from this, because Univision paid up (and, in theory, he could try to license it to someone else, though I'm not sure who would want to pay at this point). But Trump is -- hilariously -- claiming damages of $500 million because now people won't see the pageants.

Of course, Trump's own arguments undermine his arguments (because of course they do). The lawsuit repeatedly brags that there was a bidding war earlier this year, in which Univision emerged victorious. Thus, at least a few months ago, other TV media properties wished to broadcast the pageants. If it was true that this was all just a grand conspiracy by Hillary Clinton supporter Saban, then you'd think that Trump could simply move on to whoever else was in that bidding war (while keeping all the money that Univision paid him anyway!). But, of course, if the real reason for the cancellation was because of Trump's comments about Mexico and the concern about how Spanish-speaking audiences felt about that -- well, then Trump wouldn't be able to find that alternative.

The lawsuit is then equally hilarious in arguing that it can't possibly be Trump's offensive comments about Mexico because Trump has said the same offensive crap many times before. That seems like an odd thing to argue in such a lawsuit, but it's what Trump's lawyers have chosen to claim:

In reality, however, Mr. Trump's calls for immigration reform, particularly with respect to the U.S.-Mexican border, were nothing new. Indeed, for over a decade, Mr. Trump had, in numerous television and news interviews, consistently voiced his concerns regarding the influx of illegal immigrants pouring into the United States across the Mexican border and the crime that has resulted therefrom, views which were widely reported by every major media outlet, including, both Univision and NBC.

As Mr. Trump explained in an interview with Fox News' Bill O'Reilly on March 30, 2011, "[t]hey're coming over, and they're climbing over a fence, and there's nobody within 10 miles -- and they're selling drugs all over the place, they're killing people all over the place -- and we're not doing anything about it."

Indeed. It may be true that Trump has said offensive things in the past, but that doesn't mean that Univision can't later decide that the greater attention paid to his more recent offensive comments are such that it no longer wishes to do business with him. There's no rule anywhere that says, "Well, if you didn't complain four years ago when I said some stupid shit, you can't complaint now!" Even if it's true that Univision is only making this decision because Trump's comments went a bit viral, that's Univision's decision to make, and his previous comments are completely meaningless.

Frankly, this lawsuit is absolutely hilarious. The chances of it going anywhere are pretty slim. The First Amendment arguments are ridiculous, but meaningless, as there's no actual legal claim there. The defamation claims are going to get laughed out of court. The whole thing is fairly hilarious, and fits in with the designation of Trump as "entertainment" rather than anything even remotely serious.

Filed Under: breach of contract, contracts, defamation, donald trump, first amendment, free speech
Companies: nbc, univision

ESPN Sues Verizon For Trying To Give Consumers What They Want

from the sisyphus dept

As we noted last week, Verizon is responding to more flexible Internet TV bundles by offering a few new options of their own. Verizon's new FiOS Custom TV broadband bundles include a core lineup of channels with the option of adding on an assortment of $10 channel add on packs. Once you get done adding the usual DVR rental costs, contracts and fees, the effort is much less revolutionary than it's being portrayed in the media. Still, Verizon's move is notable in that it's busting the biggest contributor to soaring cable costs (sports) and busting it out of the core channel lineup. No longer forcing people who don't watch sports to pay for it? Outrageous.

Comcast/NBC, Fox and Disney/ESPN have been throwing a hissy fit in the week since the new options were announced, claiming that the new offerings violate existing contracts. It's not too surprising; breaking a channel like ESPN out of the core channel bundle immediately reduces ad impressions and overall marketing footprint, even if it's unfair for consumers to pay for incredibly-expensive content they have absolutely no interest in.

ESPN has now filed suit, issuing a summons (pdf) to Verizon (the actual complaint is still being redacted and hasn't been made public yet), stating that Verizon is in breach of contract. ESPN is requesting an immediate injunction and a financial penalty of $500,000. In a statement, ESPN argues that the channel really loves "innovation," except when it doesn't:

"A statement from the network explains that “ESPN is at the forefront of embracing innovative ways to deliver high-quality content and value to consumers on multiple platforms, but that must be done in compliance with our agreements. We simply ask that Verizon abide by the terms of our contracts."

Would that be the same contract that ESPN believes prevents innovative ways of delivering high-quality content? As 2015 becomes the year that Internet video finally starts to see some interesting but imperfect new options, ESPN's swimming upstream if it hopes to sue its way toward keeping cable permanently stuck in 2003. Consumers are increasingly making it clear that soaring programming rates simple aren't tenable, and they intend to cut the cord or flee to piracy if the cable industry wants to continue stumbling drunkenly down the current path.

If ESPN wants to get out ahead of it all, the company might want to focus on actually being at the forefront of developing "innovative ways to deliver high-quality content and value to consumers," in lieu of suing the limited number of cable companies actually trying to do this. Instead, like so many legacy giants, it will sue to try to stop the disruption, push even larger rate hikes on all of the remaining sports customers in the belief that the current cable TV cash cow will live forever, then act disoriented and stupid in a few years when the company finds itself behind the sports programming innovation eight ball.

Filed Under: bundles, contracts, fios custom tv, over the top, video
Companies: disney, espn, verizon

Prince Gives Away Someone Else's Artistic Efforts, Gets Sued

from the BUT...-will-he-learn-anything-from-this-experience? dept

If there's one thing Prince has made clear over the years, it's this: don't mess with Prince's intellectual property.

This holds true even if:

1. it's only links to bootleg concert recordings.
2. it's only a 6-second Vine captured at a Prince concert
3. it's Prince's cover of someone else's song he's now claiming to "own"
4. it's only your toddler dancing to a Prince song for all of 29 recorded seconds
5. it's just a cover version of a Prince song, which as Prince so wisely noted, completely destroys the original and removes it from everyone's consciousness/internet FOREVER
6. it's a puppet likeness of him
7. it's any photo of him or his album covers

Don't mess with the Prince of IP unless you're an intellectual property lawyer or have several on retainer. This is what Prince has taught us. Now, he's teaching us to do as he says, not as he does.

Prince handed out someone else's music for free, which would normally be considered copyright infringement. But the lawsuit against him, brought by the manager of the artist whose music was given away, doesn't make that assertion. Instead, it alleges intentional interference with a pre-existing contract -- namely the one signed by the plaintiff (talent scout Jolene Cherry) and Prince's partner in free album giveaways, Judith Hill.

According to the complaint filed in L.A. Superior Court on Friday, Hill signed an exclusive recording agreement with a joint venture between Sony and The Cherry Party after appearing on The Voice in 2013. Cherry, a talent scout who takes credit for discovering Lady Gaga, says her relationship with Sony was later restructured and that The Cherry Party became a successor-in-interest to rights under the recording agreement.

Hill signed a contract with Cherry, then asked if she could make an album with Prince. Cherry rejected the request and followed up with a warning to Hill that working with Prince would violate their contract -- a warning Hill ignored. Prince and Hill collaborated on an album and proceeded to give it all away.

Included in this gratis album are songs allegedly written by Hill's co-writers and previously recorded for The Cherry Group. The lawsuit claims Prince's actions have basically made Hill's Cherry Group/Sony Records debut album all but unreleasable. Despite Hill's willing participation in both the recording and the free giveaway, she is not named as a co-defendant.

In very closely related news, Hill is currently suing Cherry for allegedly botching a contract with Sony Records, as well as for harming the singer's reputation by altering a previously-recorded track to make it sound like a love song to North Korean dictator Kim Jong-Un. (That last half of the previous sentence is most assuredly not made up.)

Underneath everything else, there's the simple fact that Prince's IP-protectionism is apparently applied on a case-by-case basis. If it's even tangentially related to him, it's off limits. If it's someone else's (Hill's co-writers, Cherry Party), it can be given away freely. If nothing else, this situation will hopefully result in "purple with hypocrisy" joining "green with envy" in the annals of American idioms.

Filed Under: contracts, downloads, intellectual property, jolene cherry, judith hill, music, prince
Companies: sony

Yes, Major Record Labels Are Keeping Nearly All The Money They Get From Spotify, Rather Than Giving It To Artists

from the who-are-you-blaming-now? dept

A small group of very vocal musicians has decided that the new target of their anger, after attacking cyberlockers, search engines and torrent sites, should be legal, authorized streaming services. They've decided that the payouts from these services are simply too low, even though almost none of these services are anywhere close to profitable, and most are handing out the vast majority of their revenue to copyright holders. The complaints are often nonsensical. Way back in 2012, we noted that the target of these musicians' anger appeared to be misplaced, as the CEO of Merlin (which represents a ton of indie labels) admitted that the real problem was that Spotify paid lots of money to labels and it was the labels not giving that money to the artists. Yet, rather than blaming their own labels (or their own contracts), these artists lashed out at Spotify and other streaming services. Just a few months ago, we covered this issue again, with even Bono admitting that the real problem was the lack of transparency from the labels.

And, it appears, there's a decent reason why those labels haven't been eager to be transparent: because they're keeping most of the money. The Music Business Worldwide site has the details on a new report put together by Ernst & Young with the French record label trade group SNEP, concerning where the money from streaming services Deezer and Spotify ends up. Spoiler alert: it's not with the artists. Here's the overall share of the 9.99 Euros that people pay for a premium account on these services: As you can see, the labels get the lion's share, with songwriters/publishers splitting 10% and the performers getting less than 7%. And, if you look at the specifics of the actual post-tax payout, you can see the contrast more starkly: The labels end up with nearly 75% of the total payout, with actual artists and songwriters left with the scraps.

Of course, since this project was paid for by SNEP, which represents the major labels, it then tries to spin this as being not only perfectly fair, but a good thing for the artists themselves. What, you say? How can that be? The report claims that 95% of that money that goes to the labels goes to cover all of the "expenses" those poor poor labels have to endure to record and... um... upload(?) the actual music. Sure, in the past, it may have been reasonable for the labels to take on large fees for distribution -- but that's when it meant manufacturing tons of plastic and vinyl and then shipping it to thousands of record stores around the globe. In this case, there's no manufacturing, and distribution is an "upload" button. Sure, there are some marketing costs, but the numbers ring pretty hollow (especially for many of the artists for whom the labels do little to no marketing).

So, again, rather than blaming these streaming services, it appears that perhaps they should be discussing things with the labels.

Filed Under: artists, contracts, copyright, distribution, music, record labels, revenue, streaming
Companies: deezer, snep, spotify

YouTube's Offer To Musicians Isn't As Bad As Some Believe, But YouTube Should Still Change Its Policies

from the things-can-be-fixed dept

Last summer, there was some kerfuffle about YouTube allegedly threatening to kick musicians off of YouTube if they didn't agree to license their music to the subscription service it was building. At the time, we wrote about how this was overblown. As we noted, anyone could still post whatever videos they wanted to YouTube, it was just a question of whether or not you would be in YouTube's partner program, which would allow the artists to use ContentID to monetize other people's videos and a few other features as well. After I wrote that, musician Zoe Keating, who I consider a friend, emailed me the details of her own struggle with YouTube over this issue, and how the deal being offered actually was pretty crappy for her. Late last week, she posted a similar discussion on her blog, asking what she should do about YouTube, because she wants to use ContentID, but doesn't like some of the other terms in the deal.

Zoe's post has since gone somewhat viral, with many people insisting that YouTube's terms are absolutely crazy. Of course, when you look at the details, the terms are not really that crazy. However, YouTube should change them. Let's dig into the situation to explain why.

Zoe's main concerns were these terms:

1) All of my catalog must be included in both the free and premium music service. Even if I don’t deliver all my music, because I’m a music partner, anything that a 3rd party uploads with my info in the description will be automatically included in the music service too.

2) All songs will be set to “monetize,” meaning there will be ads on them.

3) I will be required to release new music on YouTube at the same time I release it anywhere else. So no more releasing to my core fans first on Bandcamp and then on iTunes.

4) All my catalog must be uploaded at high resolution, according to Google’s standard which is currently 320 kbps.

5) The contract lasts for 5 years.

As she noted, if she didn't sign the agreement, her YouTube channel would be blocked -- though, as we explained in our post last year, and as Zoe added in an update -- she could take her existing YouTube channel out of the partner program and keep it up. However, in doing so, she would give up the ability to monetize her music under the same terms.

Why these terms aren't entirely insane: From my reading of it, YouTube's concern is that consumers who pay for YouTube's fee-based music service will be reasonably angry if there is music they can find on the good old-fashioned free side of YouTube, but which is not accessible after they pay. From a consumer experience standpoint, that is kind of a crappy situation. You could definitely see some subscribers who get frustrated. In fact, I'd bet that there'd be some blog posts somewhere of someone bitching out YouTube's paid service for not having certain music that was available on the site for free... and that post would likely go viral as well, with people talking about how crappy YouTube's paid service was. Also, it wouldn't surprise me if some enterprising copyright holder somewhere would come up with some sort of legal theory involving suing YouTube over this, saying that it now knows which tracks are unlicensed, and thus has to proactively take them down. That is, it's entirely possible that without these requirements, YouTube goes back to facing a massive copyright liability problem.

Why YouTube should change its terms anyway: These are truly edge cases. Most musicians do seem fine with being in the various services, but if they (like Zoe) want to just to make use of ContentID, but not release all their music on YouTube, that should be allowed. As Zoe has told me in the past, the thing she likes about ContentID is the ability to pick and choose what videos to monetize. Use her music in a school project -- and she just let's it go and is happy to see. Use her music in a big commercial feature, and she'll click the button and get some money out of it. But the ContentID portion should be separate from the "release my music" portion.

On top of that, the requirement to release all music on the service, combined with the similar requirement that you have to release the music on YouTube the same time as on any other platform, is unnecessary. Yes, YouTube wants to make sure that its catalog competes with everyone else's. And, fragmenting the music world with "exclusives" is generally a crappy experience, but there should be some reasonable way to allow Zoe to do things like offer up songs to her biggest fans on Bandcamp first. YouTube should be able to create terms that accommodate that, and it's a shame that the company won't do so.

In the end, most of the terms are not really that unreasonable. It only creates an issue in special cases where someone wants to do something a little bit different. YouTube is left with the choice of which crappy edge case it's going to have to make a mess of: either the one where a musician wants to do something a little different, or the one where some consumers might get annoyed that certain music isn't available on its service. YouTube went with option (a), but there's really no reason that the company can't be a little more flexible in designing terms that account for cases like Zoe's.

The other issue is that, once again, YouTube has done an absolutely dreadful job explaining itself. This is not the first time this has happened. In fact, it seems to happen with alarming frequency that when YouTube makes these kinds of policy changes, it doesn't do a good job (or any job at all) of explaining them to the public in a way that makes sense. Frankly, the company could do a much better job being open and transparent about the policy choices it makes and the reasons why it does these things, but for whatever reason, it chooses not to do so.

Filed Under: contracts, streaming, youtube, zoe keating
Companies: google, youtube

Film Academy Sues Family Of Oscar Winner For Selling Trophy On Ebay

from the death-is-no-escape! dept

The Motion Picture Academy is notorious for being quite litigious, particularly when it comes to anything to do with the Oscars. Hell, even websites essentially promoting the Oscars get sued by the Academy, because why the hell not? And don't you dare try to sell your tickets to the Oscars on the secondary market. But even with all of that, I wouldn't have expected to see the Academy assert that they own the award hardware they hand out to Oscar winners, including after the death of those winners. Confused? Check this out.

The Academy of Motion Picture Arts and Sciences has lined up a new lawsuit, painting the picture of a cinematographer's heir who ignored bylaws by selling a statuette on eBay. The statuette was awarded in 1953 to Robert Surtees for excellence in black-and-white cinematography for the film, The Bad and the Beautiful, which starred Kirk Douglas and Lana Turner. More than 60 years later, the Film Academy is in court after Carol Surtees allegedly auctioned the statuette for $40,500. The Academy makes its members agree that it has a "right of first refusal" if the statuettes are ever sold. To prevent a black market for the famous trophies, the Academy believes itself entitled to purchase the statuettes for $10 in the event they are ever sold.

Carol was the wife of Bruce Surtees, who in turn was the son of Oscar winner Robert Surtees. In other words, the Oscar statuette from 1953 had been passed down to Carol after her husband and father-in-law had both passed away. She's the widow of the winner's son. The point of me driving this home is that, even if we pretend that it makes sense for the Academy to be able to claim that an item worth thousands of dollars must first be offered to them for the price of 2/3 of a ticket to one of their movies, that agreement would have been with the award winner, not his or her heirs. In this case, the statuette had been passed on twice thanks to the grim reaper doing his thing. In what world does it makes sense for Carol Surtees to have to follow bylaws to which she never agreed?

Not that this lack of logic is keeping the Academy from suing for every last dollar she got for the statuette. You can read the full lawsuit [pdf and embedded below].

The Academy alleges that it sent a letter to Surtees on December 5, spoke on the phone with her on December 12, and despite reminders about the right of first refusal, the auction happened on or about that latter day. She's now being sued for breach of contract. The lawsuit also names John Does, who are being sued for alleged tortious interference. The Academy demands at least $40,500 in compensatory damages, punitive damages, and an order that the Oscar be put in a constructive trust, among other demanded relief.

I just can't seem to grasp how someone can be in breach of a contract to which they were not party. The Academy can assert they have these rights all they want, but I can't seem to find any reference to why those rights should exist with respect to Carol Surtees.

Filed Under: bruce surtees, carol surtees, contracts, first sale, lawsuits, oscars, ownership, resales, robert surtees, sales
Companies: motion picture academy