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?
Pretty much every other person who's ever read the site has sent this one in today, so I figure it's worth writing up. We've talked for a long time about how unknown/up-and-coming artists can embrace new business models to be more successful these days. In fact, five or six years ago the only artists who were doing these kinds of experiments were the up-and-coming ones. And when we did that, people complained that "well, sure, this works for the unknowns, because they have nothing to lose, but it's not a real business model." And then, in the last couple of years, with folks like Trent Reznor and some other well known artists embracing new models, suddenly the refrain changed: "well, sure, this works for them because they already have a huge following... but it'll never work for everyone else." What was silly was that they were both effectively doing the same thing: better connecting with fans, and offering them something of scarce value to buy. In my more recent presentations, I've been careful to show how artists big, medium and small are all successfully embracing new models based on this formula:
Connect with Fans (CwF) + Reason to Buy (RtB) = The Business Model
And those who are embracing it are finding that it works and works incredibly well in many cases. Yet, still people want to insist that it can't work. In fact, Reznor himself heard this when he mentioned that the Beastie Boys new offering (built on the Topspin platform) was "how you sell music today." In response, the second wave of naysayers listed above came out to complain, so Reznor decided to respond by explaining how new artists get noticed, build a following and build a business model these days. And the formula is basically: connect with fans and give them a reason to buy... and use free music to do both of those things. He does note, that if you want to be a superstar, you probably need to sign with a label, but doing so will mean giving up pretty much everything: control, profits, ownership. However, if you just want to be a success...
* Forget thinking you are going to make any real money from record sales. Make your record cheaply (but great) and GIVE IT AWAY. As an artist you want as many people as possible to hear your work. Word of mouth is the only true marketing that matters....
* Parter with a TopSpin or similar or build your own website, but what you NEED to do is this - give your music away as high-quality DRM-free MP3s. Collect people's email info in exchange (which means having the infrastructure to do so) and start building your database of potential customers. Then, offer a variety of premium packages for sale and make them limited editions / scarce goods. Base the price and amount available on what you think you can sell. Make the packages special - make them by hand, sign them, make them unique, make them something YOU would want to have as a fan...
* The point is this: music IS free whether you want to believe that or not. Every piece of music you can think of is available free right now a click away. This is a fact - it sucks as the musician BUT THAT'S THE WAY IT IS (for now). So... have the public get what they want FROM YOU instead of a torrent site and garner good will in the process (plus build your database)....
* Have your MySpace page, but get a site outside MySpace - it's dying and reads as cheap / generic. Remove all Flash from your website. Remove all stupid intros and load-times. MAKE IT SIMPLE TO NAVIGATE AND EASY TO FIND AND HEAR MUSIC (but don't autoplay). Constantly update your site with content - pictures, blogs, whatever. Give people a reason to return to your site all the time. Put up a bulletin board and start a community. Engage your fans (with caution!) Make cheap videos. Film yourself talking. Play shows. Make interesting things. Get a Twitter account. Be interesting. Be real. Submit your music to blogs that may be interested. NEVER CHASE TRENDS. Utilize the multitude of tools available to you for very little cost of any - Flickr / YouTube / Vimeo / SoundCloud / Twitter etc.
* If you don't know anything about new media or how people communicate these days, none of this will work. The role of an independent musician these days requires a mastery of first hand use of these tools. If you don't get it - find someone who does to do this for you. If you are waiting around for the phone to ring or that A & R guy to show up at your gig - good luck, you're going to be waiting a while.
Great stuff, as usual, and certainly reinforces the point: it's certainly hard work, but it is doable. If you're unknown, use this process to get known. Once you're known, you can start to implement all different elements of the business model, using the music to make scarce goods much more valuable and start earning that way. Great advice for artists big, medium and small...
A few years back, we idly wondered if it could possibly be copyright infringement to embed a YouTube video on your own site. It would be a very difficult argument, since an embed code is really no different than a link. The content itself is hosted by YouTube and was uploaded by some other party. Yet, we figured eventually someone would make a claim along those lines... and wouldn't you know it would be ASCAP?
ASCAP must be really hard up for cash these days, because it's going down the PRS route of trying to claim that just about anything now counts as a public performance. Just a few weeks ago, came the news that your mobile phone ringing in public is a public performance. It's also been telling composers/song writers to hold back on allowing their songs in video games like Rock Band/Guitar Hero on the assumption they should get more money for it (not realizing that getting songs in those games has been shown to raise the profile of the artists allowing them to make a lot more money).
So, the latest? Apparently ASCAP has started sending collection letters to various websites that have embedded YouTube videos that contain music, claiming they need to pay up for a performance license. This is definitely a huge stretch legally, but when has that stopped ASCAP? Meanwhile, you may recall that YouTube was just ordered to pay millions to ASCAP -- which you would think would cover this sort of thing -- but not according to ASCAP. If that's true, then ASCAP would be getting double/triple/quadrupled/etc. paid for embedded videos, which certainly doesn't seem right (or legal).
And, once again, we're left with a situation where ASCAP -- which always positions itself as having the best interests of songwriters/composers/publishers in mind -- is actually causing significant harm for artists. By adding to the cost of having people promote those artists on their own websites, they're greatly diminishing the ability of people to get the word out about these artists.
Peter Friedman has another wonderful post, discussing why music is the "main battleground" in the copyright wars, raising a few good points -- including the idea that music master tapes are dying in vaults, causing locked up music to disappear, and highlighting a troubling series of case law decisions that seem to entirely ignore the concept of fair use when it comes to music (some of which we've discussed in the past here).
But the most interesting point may come at the end, when he brings up something that's been confusing here as well: how come Greg Gillis -- better known as Girl Talk, the popular mashup musician -- hasn't been sued yet. Especially since his Feed the Animals CD came out, generating a ton of publicity and popular press coverage (and sampled from hundreds of songs), pretty much everyone has been waiting for him to get sued. Friedman tosses out a suggestion that makes a lot of sense: the recording industry is scared to death that a court will rule in Girl Talk's favor and return "fair use" to music:
Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis's argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I'd go after someone I am more likely to beat. Othewise, I'd lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.
When asked, Gillis has repeatedly stated that if he's sued he believes he has a strong fair use defense. Perhaps the lawyers at the record labels (and representing certain musicians) have all recognized the same thing. Gillis will almost certainly win in court, and all those terribly decided cases that ignore fair use in music will get pushed aside.
We've pointed out how incredibly ridiculous the old structure of the recording industry was, where artists would hand over pretty much all of their rights to the label. It's amazing that this sort of indentured servitude model has survived as long as it has. After all, if you look at other parallels -- such as venture capitalists and startups, the VCs don't end up totally owning startups to the same extent as labels. Of course, this was really a function of the limitations inherent in the industry: the very limited ability to promote and distribute music in the past without a major record label behind you. With those barriers falling away, we're seeing much more reasonable models pop up. I still believe there's a big place for record labels, but it no longer needs to be a massive record label where you hand over all your rights.
And, in fact, we're seeing newer, more nimble and smarter record labels who are willing to embrace these new models rather than spending all their money on lawyers and lobbyists to hold back customers. The latest example (sent in by Ruby) is that Radiohead's manager, Brian Message, has teamed up with Nettwerk (who we've written about a bunch) to launch a new, much more artist-friendly record label called Polyphonic. One key point: artists on the label retain their copyright. To be honest, it's amazing that any band has ever been willing to give up the copyrights on its music to a label, so it's good to see alternatives showing up. The other plan is that the artists will get 50% of any profits, a significantly larger percentage than most other labels give.
Remember, also, that Brian Message is the guy who said file sharing is great for music and championed the band's "pay what you want" experiment (which I still don't think was nearly as creative as others' business models). And Nettwerk's Terry McBride has been an enthusiastic supporter of innovative business models that don't focus on relying on copyright as a crutch (in fact, he's discussed that copyright may be a totally pointless concept in the near future, and artists are better off to focus on other ways to build smart business models). It will be interesting to see who the new label signs up.
This will come as a surprise to just about no one, but Jammie Thomas' lawyers have pointed out that the $1.92 million verdict against her is excessive, and is asking the judge to either throw out the award, lower it to the statutory minimum or grant a new trial. That was pretty much expected. What's odd, however, is the note at the very bottom of that article, concerning the filing that the RIAA made to the court. The RIAA keeps insisting that it just wants to settle the case, but if that's true, it seems weird to then attack Thomas in court again, but that's what the filing seems to do. It suggests that Thomas (despite this whole process) must still be sharing songs and that the court needs to issue an injunction barring her from doing so. While we've said that there appears to be ample evidence that Thomas used file sharing programs (and that she shouldn't have let this case go to trial), it would be quite surprising if anyone had any evidence that she was still doing this. As far as I know, the RIAA has not presented any such evidence at all. Demanding an injunction, then, seems quite strange.
On top of that, the RIAA appears to falsely claim (or the AP reporter misquoted the RIAA) that Thomas "distributed more than 1,700 songs to millions of others through the file-sharing system Kazaa." That may be true, but it certainly was not shown in court at all. The RIAA only named 24 songs she was charged with sharing, and then did not present any evidence that she actually shared any of them with anyone other than the RIAA's own investigators. The claim that she "distributed more than 1,700 songs to millions of others" was not proven at all, and in fact this entire new trial was because the judge originally made the mistake of assuming "making available" meant distribution. It does not. For the RIAA to misstate this point is really quite odd.
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.
How badly do you think the RIAA wants Jammie Thomas to settle? Since the verdict came down, the organization has done everything it possibly can to distance itself from the $1.92 million verdict against her for file sharing. While willing to play up the ruling itself the organization seems to recognize that the insanity of the $1.92 million doesn't do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. In an ideal world, the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the "risks" of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.
So, you get a slightly bizarre situation, where it's the RIAA proactively reaching out to Thomas to try to settle the lawsuit -- but so far Thomas apparently isn't interested. I've been saying that I thought she would settle, but the longer this goes on, the more I wonder if she's actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations. The verdict seems so out of proportion with the supposed "crime" that it's difficult to see it pass the laugh test. However, there's a halfway decent chance that a court punts on the issue, saying (as the Supreme Court did in the Eldred case) that such questions are up to Congress, rather than the courts. Of course, if the case is to move forward, it would help to have lawyers who have had more than a few weeks to study up on the issues, and who didn't make public pronouncements that were distractions rather than anything related to the actual case.
"The Taiwanese music performance and copy right society called MUST, which is similar to the PRS in Britian, has send a take down notice to a popular Taiwanese blog hosting site, Wretch, because one of the user has posted copyrighted music on their blog. The offending blog was taken down and contents deleted.
The catch on this is that the person who posted the music, Shia Ho Shen (English artist name: A Chord), posted music that he himself wrote and performed. He sent an email to MUST asking about the situation and received a standard form letter telling him that copyrighted material are protected intellectual property and implied that he has no right to authorize himself for posting his own material.
Apparently, A Chord's previous agency, without his consent, has signed him up with MUST and thus MUST has all right to authorize his content and collect fees -- and block him from posting his own music.
After this incident A Chord has started the process to remove himself from MUST's artist list, started a new blog and posted this whole incident and posted all his songs online at StreetVoice for fans to listen to before purchasing his CD.
The specific links he sent, including to the blog post itself, are in Mandarin. Here's the Google translation which isn't all that clear. Also this is from a little while ago, so I'm not sure if there's been any updates... but if folks out there have any updates, please fill us in via the comments.
Want to know just how incredibly confusing and impossible copyright law has become? Just take a look at this lawsuit, filed yesterday by some music publishing companies against Microsoft, Yahoo and Real Networks, claiming that the online music stores each of them runs (the Zune store, Yahoo Music and Rhapsody) infringe their copyrights (thanks Eric Goldman for sending this over). How can that be, you ask? Surely these companies properly licensed the music they offer in their streaming/download offerings, right? Well, the lawsuit doesn't provide that much in the way of detail (and I've spoken to a few copyright lawyers -- none of whom seem to agree with each other!), it sure looks like the claim is that Microsoft, Yahoo and Real may have licensed the copyrights on the recordings, but did not license the copyright on the compositions. It sounds like (though, again, the details are fuzzy) that the record labels did licensing deals with these music services, but publishers and labels are separate entities (even if the labels own many publishers), and the rights are separate.
It's pure speculation until more details come out, but one imagines that the licensing deals with the record labels included some sort of assurances that the publishing rights were covered as well -- and for songs whose publishing rights were covered by the major record labels, that's probably the case. But for songs where the publishing rights were owned by independent companies -- such as MCS Music America, the claim appears to be that the publishing rights were never cleared -- and thus, Microsoft, Yahoo and Real were streaming/downloading music to which they only held some of the rights. Yikes.
Most of the complaint details which songs were offered without (allegedly) having secured all the rights. And, of course, the publishers are claiming that every time a song was streamed or downloaded, it counts as a separate act of infringement. If the court agrees, this could represent a massive liability for Microsoft, Yahoo and Real, given the fines we all know can be issued over a single instance of infringement.
That said, this is yet another example of the convoluted house of cards that copyright has become. The idea that you can license a recording, but then need to get a separate license from a totally different party for the rights to the "underlying composition" (and don't get us started on the need to make sure you're covered for reproduction, distribution and performance rights -- three separate issues under copyright law), and you begin to get a sense of the problem. Basically, every time some new technology or innovation comes along, the copyright holders run to Congress to slap on another right, rather than actually innovating on the business model side. And on top of it, when new technologies like the internet come along, it's not at all clear which rights really apply and who controls/owns what rights. Suddenly, you have a massive mess for a company trying to do something as simple as let people listen to music. Just for that, you get a massive lawsuit like the following:
It's the sort of system only a greedy copyright lawyer could love: it's designed not to incentivize creation (copyright's stated purpose) or to facilitate the distribution of content -- but instead designed for the exact opposite: to confuse and hinder (but to keep copyright lawyers quite busy and gainfully employed).
