Eminem's Misguided Lawsuit Against Apple Over iTunes Set To Start

from the apparently-not-yet-settled dept

Back in 2007, we noted that Eminem's publisher was suing Apple for offering Eminem tracks on iTunes. Apple pointed out that it had an agreement with Eminem's record label, and we wondered why Eminem wasn't suing Universal Music, rather than Apple. So, earlier this year, when Eminem and Universal Music went to court we assumed that the lawsuit had been refocused on the proper party. Apparently, we were wrong. The lawsuit against Apple is scheduled to begin Thursday if no agreement is reached today. However, remember that lawsuit against Universal earlier this year? Well, Universal won, with the court saying that Universal had the right to distribute digital offerings. So... why is the lawsuit against Apple still going forward? Am I missing something...?

Filed Under: eminem, itunes, licensing
Companies: apple, universal music

Court Refuses To Dismiss Allman Bros. Lawsuit Against UMG; iTunes Royalties At Stake

from the a-license-or-a-sale? dept

There have been a number of lawsuits over the past few years from artists who are complaining about how the major record labels account for iTunes sales. The question is whether or not a song sold on iTunes is the same as a CD sale (a tiny tiny royalty) or more like licensing a song for a commercial (more like a 50% royalty). Obviously, the record labels want iTunes treated like a CD. But musicians have a reasonable argument that an iTunes sale may be a lot more like a typical license, as a big part of the reason in the discrepancy in the royalty rates is that there's no (expensive) physical packaging and distribution to handle. The Allman Brothers were one of the first to file lawsuits on this issue suing both Sony Music, and then a couple years later, Universal Music Group (I'm still not clear why they sued the two separately, years apart). Eminem also had sued UMG over this issue and lost, as a jury said iTunes was more like a CD sale.

UMG tried to get the case from the Allmans dismissed, but davebarnes alerts us to the news that the court has refused to dismiss the case, and it will proceed to a full trial. Of course, like Eminem, the Allmans may lose the trial, but it's better than having the case dismissed outright. Of course, if the Allmans win, it will create a bunch of similar lawsuits in short order, as pretty much every artist will be demanding a lot more iTunes revenue.

Filed Under: allman brothers, itunes, licensing, royalties, sales
Companies: universal music

Werewolf TV Show Blocked From DVD Release Due To Music Licensing

from the promoting-the-progress dept

We were just talking about how DVDs of various TV shows, like The State and WKRP in Cincinnati were being crippled by music licensing rights that forced them to remove the original, classic music, and replace it with bland copies. However, in some cases, it's much, much worse. Michael Scott lets us know that some TV shows are being totally prevented from coming to DVD. The latest is the TV show Werewolf, which was apparently working on a DVD release, but the project has now been shut down, due to music licensing problems:

The Shout Factory had to cancel the release because of two artists (which will remain unnamed) that would not play ball. Sony does not have the individual audio tracks, so they were unable to replace the songs, as the audio was mixed together. The two songs were featured over dialogue scenes that could not be cut. The Shout Factory's only option, even after spending a lot of time and money on it, was to cancel it and give the title back to Sony. If Sony had the audio tracks, it would have been easy to replace the two songs.

It's still difficult to see how this makes any sense at all. It shouldn't require relicensing, and even if it does, it's plainly ridiculous for the musicians to refuse. It's difficult to see how this benefits them in any way.

Filed Under: dvd, licensing, music, werewolf

Once Again, Music Licensing Harms The DVD Release Of A Classic TV Show: The State Goes Generic

from the sad-days dept

Fans of The State have a cultish connection to the fantastic sketch comedy series that was on MTV in the 90s. Recently, DVDs of the show were released, and reader Milodon points out that like WKRP in Cincinnati, The Wonder Years and a variety of other classic TV shows, The State was unable to use the original music it had used when the shows aired:

Back in the free-wheeling 1990s, we had access to a huge library of popular songs to use as a soundtrack for the show. Today, licensing this music for the DVD would have cost us millions of dollars, and most of it was unavailable to us at any price. However, we have worked very closely with original series composer (and consummate rock star) Craig Wedren to carefully replace certain tracks, while maintaining the spirit of the original sketches as much as possible. The only moment in the whole series that we could not include on the DVD is a 15-second "link" where characters are singing a Pearl Jam song which we could not get the rights to.

Of course, we've seen how closely "the spirit" of the original music has been drained out of those other shows. Part of the reason these shows are such classics was their use of timely and evocative music. It still boggles my mind that it should even require any additional licensing. The music was licensed for the show. The DVDs are simply the same show. The music was already licensed. Why should it need another license? And, even if you grant the idea that it should get the license, why would anyone not let that happen? Having the music in these shows is never going to harm the market for that music or those musicians. It can only serve to draw more attention to that music, especially for people nostalgic for the time when the show aired.

Also, the page about the DVD notes one other bizarre change:

A few brand names and images had to be blurred or replaced for legal reasons.

I'm still trying to figure out what these "legal reasons" are. Last month we wrote about a lawyer whose job it is to make sure no brands appear unblurred in movies, but I'm struggling to understand the legal rationale behind this. It's not a trademark violation to use a brand in a movie or a TV show. There's not going to be any "confusion" from showing a brand or dilution of the brand because a long-off-the-air TV show isn't competing with those brands. This is yet another sign of the ridiculous levels to which intellectual property law has taken culture these days.

Filed Under: copyright, dvds, licensing, the state

No Free Competition Allowed In Tampa Bay Taxi Business

from the competition-is-bad dept

Back in June, we wrote about how cab drivers in Tampa Bay were trying to get the city council to outlaw new competitors in the form of free ad-supported transportation from some owners of electric vehicles. Like so many cities, Tampa Bay's cab system operates on a license system, which the city and the existing cabbies work closely to limit, and do make sure prices remain artificially high. However, the free electric vehicles had thought they got around this by noting that the permit system only applied to cabs for hire. Since they weren't charging, they weren't covered. Until now.

EEJ alerts us to the news that Hillsborough County transportation officials have announced that the free electric vehicles need to get permits as well -- except, oh by the way, there aren't any available. Too bad. At least one of the electric vehicle operators plans to go to court to fight this, but it may be an uphill battle. While the officials are hiding behind "safety" claims, the truth is that it's a typical move of regulatory capture by the cab companies, limiting competition so they can keep their prices artificially high and avoid any sort of business model innovation.

Filed Under: business models, cab drivers, competition, free, licensing, tampa

How Copyright Can Be Viewed As Anti-Property

from the removing-rights dept

One of the regular discussions we get into around here is over the question of whether or not things like copyright and patents are really property. The IP lawyers who insist that it's just like property focus on a rather simplistic (and wholly inaccurate) explanation of why it is property: which is that if it's a bundle of rights that can be transferred, then it is property. But that's misleading. Because it mixes up a couple of key elements that make this definition quite inconvenient. The key among them is that those who hold IP rights rarely sell them (yes, it does happen, but it's a rare transaction when it does). Instead, they mostly license the rights. And that's rare with real property. Again, it does happen sometimes, but not very frequently -- and, when it does, it's always represented quite clearly as a rental or a lease rather than a purchase. It's not even thought of in the same framework. So, you have a major difference right there.

And, in fact, there's a reasonable argument that when most of the transactions are licenses but are represented as purchases, it's actually very much against the basic principles of property, rather than for them. Martin points us to a fascinating and thoughtful writeup, by Nicklas Lundblad, originally written in Swedish, but the Google translation is quite readable, that discusses how the recent actions by Amazon to delete purchased George Orwell ebooks on the Kindle demonstrates just how anti-property "licensing" is (my own edit of part of the translation):

What is interesting with the time, however, is that it illustrates an example of a conflict that has not been seen very often - between the copyright and ownership of individual copies of a work which we have purchased legally. As noted in the article above, we would probably flinch [if someone] knocked on the door, courteously explained that the publisher who sold us the last part of Harry Potter no longer wants to provide a paper edition, and that therefore they had brought with him a little gasoline to burn up our copy . Most of us would probably shut the door again, put on a little coffee and [laugh]... [if anyone] would try their hand at this. But in the transition to the digital economy it will make it harder for us to protect our own space and our property, as more and more terminals are now sold [with what is] charmingly called a "kill switch". The iPhone will have, like the Kindle and other terminals: an opportunity to, at a distance, without our consent in the case (but we have certainly agreed to it in any agreement anywhere) change the content of the technologies we use.

And that very fact is incredibly anti-property. The idea that something we believe we have legitimately purchased can suddenly be snatched away from us, at a distance, with no recourse is not property. It's the opposite of property. In the comments to our original post, someone pointed out that for all the copyright maximalists who like to refer to infringement as "theft," Amazon's deletion of 1984 was a lot closer to "theft" in that people who had purchased something suddenly found that it was gone. Poof. That is extremely anti-property, and anti-free market -- and that's a problem:

The original article goes on to note that while a contractual agreement is the cornerstone of the free market, a license agreement built on copyright is quite different. It's built with a very strong imbalance, backed up by government protectionism, that changes the free market structure. Lundblad notes:

The license is like a parody of a contract because the contract coordinating effect been eliminated from the outset by a law which gives one party all the bargaining power.

While I have no doubt that this will upset and anger the folks who believe that copyright is absolutely 100% property, it's a rather compelling explanation of how copyright isn't just not like property, but in many ways is anti-property in that it violates some of the basic tenets of true property and true property rights.

Filed Under: copyright, free market, licensing, property

Beck Re-Recording Other Classic Albums And Giving Them Away For Free

from the licensing? dept

Hypebot points out another fun experiment by a popular musician. Beck is apparently gathering random friends, and each week (with little or no rehearsal) they're picking someone else's classic album and re-recording it in its entirety and then giving away a free song from the session. This is the sorta thing that makes tons of sense (Hypebot calls it "a GOOD IDEA") and is something that's fun to do, and can help energize Beck's fans, the fans of the other artists playing along and the fans of the original performers/songwriters, as well. But, of course, there's always a cloud that hangs over any fun music project. Already in the discussion on Hypebot there are questions about royalties and who has to pay whom for what rights. When recording cover songs there are compulsory rates, but even then the matter isn't entirely clear, apparently. And, of course, some people are complaining that this just shows that he's "unoriginal." Of course, that simply shows a near total misunderstanding of the history of music -- which has always been about sharing and recreating the works of others.

Filed Under: beck, free, licensing, music, recording, royalties

Swedish Performing Rights Society Demands Cash From Companies That Let Employees Listen To Music

from the oh-come-on dept

It appears that the Swedish performing rights society STIM is taking lessons from ASCAP (in the US) and PRS (in the UK) in trying to extend the definition of a public performance in order to demand licensing money from just about anyone. In this case, STIM has apparently sent out demand letters to thousands of Swedish companies telling those companies that if anyone at the company listens to music on the job, the company needs to pay for a license:

Perhaps someone has the radio on or is listening to a CD and if so, you need to have a permit that allows for music to be played the workplace... A workplace isn't private and therefore you should have a license for music to be played so that the copyright holders get paid.

This is, of course, quite misleading. The copyright holder has already been paid if they're listening to the radio or a CD. This is an attempt to get paid multiple times for the same thing. We've been hearing stories about how these various collection societies are in trouble lately due to low interest rates and poor investment choices, but watching them flail around and start demanding money from everyone, and trying to get paid multiple times for the same work is really quite an amazing abuse of power. Why isn't any gov't agency cracking down on such an abuse?

Filed Under: licensing, music, performing rights, sweden
Companies: stim

Copyright Insanity: The Need To Get Licenses Just To Demonstrate A Legal Point

from the that-seems-problematic dept

Over at Against Monopoly, Alistair Kelman, points out yet another quirky problem with copyright law. He's discussing a book by Ron Rosen, who was the attorney for famed composer John Williams in fighting a copyright infringement claim saying that Williams copied a phrase in the score for the movie E.T.. The book is called Music and Copyright, and (according to Kelman) is quite a worthwhile read in thinking about some of the modern legal issues that will be faced thanks to mashups and other musical compositions that run up against copyright questions.

Kelman's one issue with the book, is that it would really be aided quite a bit by being able to hear the actual music in question, rather than just seeing the musical notation. So, the suggestion was, why did Rosen put up an online video lecture, playing the music samples so that people could better understand the issues at play. The answer, it turns out, is copyright law. Rosen wrote Kelman, noting:

"...about the need for aural examples, that is something we wanted to do for this edition, but as a new publication, the need for licenses and the budget foreclosed our doing so."

So even though this is a somewhat scholarly effort to look at these issues, apparently Rosen can't even demonstrate his points with music, because copyright forbids it, and requires hefty licensing fees. If ever there were a case where "fair use" should apply, this would seem to be it -- but I'm sure some would argue against that point since this book is a "for-profit" endeavor. Of course, whether something is commercial or not is only one of the four fair use factors, and it seems that if it's just a snippet of the music, a strong fair use case could be made (especially since it's hard to see how this could possibly harm the market for the music itself). However, as copyright system defenders love to point out on a regular basis, they see fair use as a "defense, rather than a right" and thus, the only way to prove that this is fair use would be to go to court -- something that is expensive and time consuming. What an unfortunate state of affairs.

Filed Under: copyright, education, fair use, licensing, music, ron rosen

Cab Drivers Angry About Having To Compete With Free As Well

from the it's-called-competition dept

There's just something about having to compete with "free" that gets people really, really angry. It's silly of course. In traditional competition, if someone lowers their price and it's lower than your own costs, you simply have to figure out other ways to compete (such as by adding more benefits and value). It's the same thing when you compete with free -- but for some reason, people see that big $0 and they stop thinking, not realizing it's no different if someone is charging $0 or if they're just charging less than you. You need to figure out some way to compete. EEJ points us to a story from a couple months back, noting that in Tampa, Florida, some entrepreneurially minded folks have started up free transportation services using electric vehicles. The operators of these vehicles make their money by wrapping the cars in ads and accepting tips. Other than that, the ride is free.

But... wouldn't you know it? Local cabbies are pissed off and demanding regulations to stop this sort of competition. Rather than coming up with better ways to compete, they feel the need to run to the government and get protectionist help. Doesn't this sound familiar? Amusingly, it's actually taxi regulations that have created some of this problem in the first place. At least one of the electric car owners notes that he approached the city about getting a license, but he was denied, because of the artificial scarcity the city places on cabs via such regulations (which help keep the cost of a cab ride artificially high). But... the loophole is that the regulations only apply to hired transportation. If the transportation itself is "free" then there are no regulations.

Filed Under: business models, cab drivers, competition, free, licensing, tampa