You're So Vain... I Bet You Think Starbucks' Decision To Get Out Of The Music Biz Was All About You

from the singing-a-new-tune dept

Last year, we wrote about singer Carly Simon's decision to sue Starbucks for not promoting her album enough. As you may recall, Starbucks, for a little while, tried to get into the music business by building on its success in selling a few CDs in stores and trying to start its own record label. The company invested heavily in its Hear Music subsidiary, but the results weren't very good, and about a year later it dumped the plan. In the interim, however, it did release a few albums, including one by Paul McCartney. Carly Simon had also signed on, but the label shut down five days before her album came out. She claims that because of this, she suffered greatly, and went on to sue. Of course, there seemed to be a lot of holes in the argument. First of all, she still sold a ton of albums, and the company had given her a huge advance (over half a million). On top of that, this could have happened with any record label.

In April, the judge tossed out the dispute, pointing out that Simon's actual deal was with Hear Music, the subsidiary, and not Starbucks. Unable to leave things alone, Simon has filed an amended suit, claiming that Starbucks misrepresented how much it would promote the album. But, once again, record labels change promotional strategies for albums all the time. On top of that, these days, it seems like any musician should realize that much of the promotional effort on new albums really falls on the artist themselves, rather than their labels. Blaming the label may seem like an easy target, but it's a stretch to then claim they had some legal obligation in terms of how the album was promoted.

Filed Under: carly simon, contracts, music
Companies: starbucks

Smallville Creators Sue Warner Bros, Say They Never Got Fair Market Price For Their Work

from the invisible-hand dept

AdamR points us to this story about the Smallville creators suing Warner Brothers -- the creators claim that they were cheated out of the "fair-market price" for the show and are demanding additional compensation for the successful show, which was just renewed for its 10th season. The lawsuit alleges that since WB owns both the studio that creates the show and the networks that air it, the negotiated price for the show was not fair. Hollywood has had a long history of wrestling with matters of vertical integration, with the the 1948 anti-trust case United States v. Paramount Pictures taking down the classic "studio system" that prevailed during that era. So, to accommodate the anti-trust regulations, negotiations between studios and networks must be held at "arms length." In recent days, the producers from Home Improvement, Will & Grace and The X-Files have won settlements worth millions of dollars in similar suits. That said, it's ridiculous to claim that fair-market price was not negotiated -- the fair-market price was whatever the producers could get for it, at the time that the show was sold, before it proved to be a huge hit. The producers accepted and signed the deal when it was negotiated. If a show appreciates in value after the deal is already done, why should the original producer get a piece of that upside? The network assumed the risk in this case when they negotiated the deal. What the producers are seeking is akin to a baseball player trying to renegotiate a previous season's contract after having a great season -- it doesn't make sense. If this tactic were ok, then networks should try and recoup money from the producers of all of the shows that have failed. If the producers want more money, then they need to negotiate for it in future contracts, and that should be easier to do with a hit show under their belts.

Filed Under: contracts, smallville
Companies: warner brothers

Because When MetroPCS Says 'No Contract,' It Actually Means 'Well, Of Course There's A Contract'

from the truth-in-advertising dept

The mobile phone business seems to have a serious problem with taking words that have a pretty clear meaning in English, using them in advertising and marketing promotions -- but meaning something entirely different. For example, various mobile operators claimed "unlimited" broadband, but to them "unlimited" meant "really, quite limited." Well, it seems we've got another situation like that, such as MetroPCS's widespread marketing campaign that loudly proclaimed "No Contract." Well, guess what, it actually meant that there absolutely is a contract, and any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal.

Filed Under: contracts, details, mobile phones
Companies: metropcs

Hollywood Can't Handle Anyone Connecting With Fans... So It Contractually Tries To Stop Them

from the suicide-in-the-making dept

The whole "connect with fans" and give them a "reason to buy" mantra fits with pretty much any kind of content creation -- and absolutely works in the movie industry. We've talked, for example, about the amazing job that Clerks writer/director/filmmaker/actor/funny guy (he recently said he doesn't like being described as "just" a filmmaker) Kevin Smith does in connecting with fans and giving them a reason to buy. Lately, a lot of that has been happening via Twitter, which is great. Except in the minds of the Hollywood studios. Apparently, lots of new studio contracts are including anti-Twitter language, forbidding writers, actors and others from chatting too much about the movies they're working on. Some just talk about "confidentiality breaches" while others forbid saying anything disparaging.

This is the typical Hollywood "control everything" mindset, but totally goes against the way fans want to connect, these days, and will do a lot more to harm these movies than help. People want to follow their favorite actors/directors on the set and know what's going on. It helps get them more excited about the movies, well before they otherwise might have. Shutting them down, just because some studio execs, who have probably never used Twitter, are too paranoid to recognize it as a great promotional vehicle, seems backwards and shortsighted.

Filed Under: connect with fans, contracts, cwf, hollywood, twitter

Singer Claims Sony Music 'Pirated' His Songs; Has Police Raid Their Offices

from the all-for-the-artists... dept

One thing that's consistent throughout all of the stories we see concerning the recording industry trying to support its position in lawsuits, and in front of politicians, the press and the public, is that it's doing all of this to help the "artists" it represents. Of course, that's laughable, given just how many stories we've seen of artists screwed over by the major labels. The record labels have never represented the artists' best interests. For yet another example, we head south of the border, where Alejandro Fernandez is claiming that Sony Music "pirated" his music. He used to have a contract with Sony, but when he completed that contract, he moved over to Universal Music. Yet, Sony still prepared to put out a CD of "unreleased material" by Fernandez. Fernandez claims that the works are unauthorized, and even had the police in Mexico raid Sony Music's offices and confiscate the CDs.

All in all, this comes down to a basic contract dispute. Sony Music claims that it has the right to do whatever it wants with any music recorded under the contract. Fernandez claims the rights were limited to seven albums -- which were all done -- and do not extend to material that went unreleased. This sounds similar to the dispute last month, where Morrissey told fans not to buy a new box set that EMI was putting out. Either way, it's yet another example that labels' interests and artists' interests are not aligned.

Filed Under: alejandro fernandez, contracts, copyright, mexico
Companies: sony music

Is Creative Commons Bad For Copyright?

from the taking-people-away-from-the-issue dept

Copycense has a rather thought-provoking editorial pondering whether or not Creative Commons is good or bad for copyright. I have to admit that I've long felt similarly about Creative Commons in general. I don't use any of their licenses, because I don't necessarily see the point. We've declared in the past that the content here is free for anyone to do what they want with it, and thus I feel no need for a Creative Commons license. But, at the same time, there were some underlying issues about CC that have bothered me, concerning its continued reliance on copyright as a basis for making it work. I admire the folks behind it and the very idea of using copyright itself to carve out a more reasonable way of dealing with it, but I've always wondered if the use of Creative Commons, while a nice solution for many users, helps to cloud the problems with copyright law. This is the same point Copycense makes, noting that one of the major problems with it is that it takes copyright out of a policy debate, and makes it a contractual issue.

Copycense was okay with this in the past, back when it seemed unlikely that there would ever be a real national debate on copyright, but given recent events in Canada, it seems that such discussions can actually occur:

We conclude now... that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one's apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one's outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license -- or perhaps more specifically, slapping that CC badge on a copyright-protected work -- because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues....

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization's position -- real or perceived -- as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean....

As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.

There's a lot more at the link, but I did want to pull out those sections, as making some points worth thinking about. While I always cringe at calls for "balanced copyright" -- which I think misses the point of copyright (a truly successful copyright law involves making everyone better off, rather than "balancing" interests) -- it is worth thinking about Creative Commons impact on the debate over copyright.

But... I'm not sure that I would go as far as Copycense in condemning Creative Commons. Many of the people behind it went through (and are still going through) numerous battles to push back on the excesses of copyright. Creative Commons wasn't the solution -- it was a helpful (and hopefully temporary) oasis in a bleak desert, following numerous well-reasoned, but ultimately futile attempts to push back corporate expansion of copyright. And while I agree that there are problems with shifting the issue to a contractual agreement (and the post highlights some of the many legal problems CC licenses may cause), I think that CC, as a whole, did turn a lot more people onto the some of the problems with copyright law as it stands today. In many ways, CC is an easy way for people to first start to understand the problems of copyright law, in understanding why CC is needed.

From there, many who do understand this have started questioning the larger issues around copyright -- and many of those involved with CC have continued to fight that good fight, rather than just assuming that CC is "the answer." So, in the end, I agree that we should be clear to recognize that Creative Commons and efforts to really rethink copyright are two separate things, but that doesn't mean that Creative Commons is necessarily bad for copyright policy issues. It has been, and hopefully will continue to be, a real stepping stone to getting more people to recognize these bigger issues. In fact, I'd argue that many of the folks now leading the debate for more reasoned copyright policy in Canada first came to understand these issues via their exposure to Creative Commons' licenses.

Filed Under: contracts, copyright, creative commons, license

BSA Jumps Onto The Three Strikes Bandwagon

from the with-some-weasel-words dept

So, this was really weird. I was having an instant messenger chat with a colleague here about the various "three strikes" proposals that have been popping up around the world, and he asked me whether or not the BSA had taken a stance on the issue. I noted not remembering hearing anything from them on it, and assumed that it was because the BSA mainly focuses on business users, for which a three strikes policy is not really an issue, and that the BSA would hopefully realize that cutting people off from the internet would almost certainly hurt the software industry a lot more than help it. But, literally 10 seconds after I sent that last text, I flipped over to my RSS reader and up popped an article about how the BSA has come out in favor of a three strikes plan. Freaky.

Guess I should have known better than to assume the BSA was smarter than the RIAA on this issue. As the article at Ars explains, the BSA tries to put in a bunch of caveats about due process and judicial oversight, but spends a bunch of time in its statement explaining how ISPs can get around all that due process and judicial oversight by simply putting three strikes into their contractual language -- meaning that they can just decide on their own to cut users off. Good luck with that.

More troubling, however, is that when questioned about the new statement by Ars Technica, the BSA said it was necessary because "last year our industry lost over $50 billion (USD) worldwide." Hmm. It's really quite troubling that the BSA still stands by these numbers when they've been debunked so thoroughly over and over again. They count the "retail value" of every piece of software as being "lost," which is clearly a lie. Five years ago, the research company that runs these studies for the BSA, IDG, flat out said that the BSA was wrong in claiming that "the retail value" of the software is the same as "losses." So why does the BSA continue to get away with claiming it?

Filed Under: contracts, copyright, software, three strikes
Companies: bsa

Would You Rather Renegotiate Your Contracts... Or See Your Business Collapse?

from the which-is-more-stupid? dept

You see it all the time with companies in trouble, where they are able to renegotiate certain contracts for the sake of saving the overall business. So, I have a lot of trouble with Hollywood studios claiming that they simply can't figure out a way to offer movies online, because the contracts they signed won't let them. In the link above, Slate's Farhad Manjoo tries to figure out why the movie studios aren't offering up a decent, easy to use online movie service, and unfortunately falls for the studios' claims that they know they need to get online, but they just can't because of "a byzantine set of contractual relationships between many different kinds of companies studios, distributors, cable channels, telecom companies, and others." That sounds good, and it's no surprise to see Hollywood lawyers jump all over this as a defense -- but it's laughable. If the studios, distributors, cable channels, telecom companies and others actually realized how quickly the market is changing, they'd rush to change those contracts. No, it wouldn't be easy, but it is doable. Not doing so is a cop out from a group of folks who don't want to change and are hoping that things "just work out."

Filed Under: contracts, movies, online

TomTom Caught Between Microsoft Rock And GPL Hard Place

from the divide-and-conquer dept

Last month we covered Microsoft's patent infringement lawsuit against GPS device maker TomTom. As Mike noted, this is a pretty clear example of abusive patent litigation. The patents in question are so broad that it's virtually impossible to innovate in this space without first paying Microsoft for the privilege. Obviously, that prospect doesn't bother Microsoft's top patent lawyer very much, but it should be a serious concern for the rest of us. Since Mike wrote that post, another angle of the case has gotten a lot of attention from tech blogs: whether it's possible for TomTom to settle the lawsuit without running afoul of the GPL, the free software license that covers the Linux code that Microsoft claims infringes at least three of those patents.

A bit of background is helpful here. When the Free Software Foundation drafted version 2 of the GPL, it included a clause saying that if a vendor is forced to place restrictions on downstream redistribution of software covered by the GPL (due to a per-unit patent licensing agreement, for example), that vendor loses the right to distribute the software at all. This clause acts as a kind of mutual defense pact, because it prevents any firm in the free software community from making a separate peace with patent holders. A firm's only options are to either fight to invalidate the patent or stop using the software altogether. This clause of the GPL actually strengthens the hands of free software firms in their negotiations with patent holders. A company like Red Hat can credibly refuse to license patents by saying "we'd love to license your patent, but the GPL won't let us."

This creates a problem for a company like Microsoft that wants to extract licensing revenues from firms distributing GPLed software. Ordinarily, a patent holder sues in the hope that it will be able to get a quick settlement and a nice revenue stream from patent royalties. But the vendor of GPLed software can't settle. And if the patent holder wins the lawsuit, the defendant will be forced to stop distributing the software, depriving the patent holder of an ongoing revenue stream. Either way, the trial will generate a ton of bad publicity for the patent holder.

In a comment at the "Open..." blog, prominent Samba developer Jeremy Allison charged that Microsoft has tried to sidestep this agreement by basically forcing companies to sign patent licensing agreements that violate the GPL under the cover of non-disclosure agreements. Allison argues that TomTom got sued because it was the first company to refuse to participate in this fraud. It's important to note here that Allison can't prove the existence of these agreements, so we should take his claims with a grain of salt. But if these charges are ever conclusively proven, they would have explosive consequences. The Free Software Foundation would likely insist that such firms either cancel their agreements with Microsoft (likely triggering a patent lawsuit) or stop distributing GPLed software altogether (which could be a death sentence for a firm that relies on such software).

Regardless, TomTom is now stuck between a rock and a hard place. The GPL has left the firm with only two options. It must either fight Microsoft's patents to the death (literally) or it must settle with Microsoft and immediately stop distributing GPLed software. Given how deeply-entwined GPLed software apparently is in TomTom's products, that second option may be no option at all. So expect a long and bloody fight in the courts.

One likely result will be to create a serious PR problem for Microsoft. Some people might remember the infamous GIF patent wars of the 1990s. When Unisys tried to collect patent royalties on the GIF format, the Internet community responded by switching in droves to the PNG format. In the process, Unisys earned a ton of bad press and a terrible reputation among computer geeks who care about software freedom. Microsoft risks a similar fate if it pursues this litigation campaign against Linux. And given that Microsoft is in a business where innovation is king, it's probably not a good idea to become a pariah in a community that includes many of the world's most talented software engineers.

Filed Under: contracts, gpl, open source, patents
Companies: microsoft, tomtom

Google 'Requests' That We Not Copy Works That Are Already In The Public Domain

from the yeah-right dept

Computer scientist Steven Bellovin notes a troubling trend: companies that republish public domain works are increasingly trying to use contract law to place restrictions on their use. For example, Google is apparently in the habit of "requesting" that people only use the out-of-copyright works they've scanned for "personal, non-commercial purposes." Even more troubling, works like this one that were produced by the US federal government—and have therefore never been subject to copyright—come with copyright-like notices stating that any use other than "individual research" requires a license. Fundamentally, this is problematic because copyright law is supposed to be a bargain between authors and the general public: we give authors a limited, temporary monopoly over their works, in exchange for those works being created. But in this case, the restrictions are being imposed by parties—Google and Congressional Research Services, Inc., respectively—who had nothing to do with the creation of the works. The latter case is particularly outrageous because taxpayers already paid for the works once, through our tax dollars.

With that said, there are a couple of reasons to think that things aren't as bad as Bellovin suggests. It's hardly unusual for companies to claim rights they don't have in creative works—that doesn't mean those claims will stand up in court. The fact that Google "requests" that users limit how works are used doesn't mean they can stop people who ignore their requests. And especially in the case of government works, there's a strong case to be made that copyright law's explicit exemption of government works from legal restrictions should trump any rights that private companies might claim to limit the dissemination of such works. Moreover, a few courts have recognized the concept of copyright misuse, the attempt to extend a copyright holder's rights beyond those that are specified in the law. So it's not at all clear that these purported contractual restrictions would actually be binding. Companies might say that you need permission to reproduce the works, but they're unlikely to try to enforce those requirements in court. Nevertheless, government officials and librarians should do a better job of policing these kinds of spurious claims. As Bellovin says, government agencies that hire firms to manage collections of public domain works should ensure that the private firms are contractually obligated not to place additional restrictions on downstream uses of those works.

Filed Under: contracts, public domain
Companies: google