Yes, I Was Deeked By Two Hoax Kim Davis Stories Today

from the i'm-just-so-happy dept

Mea Culpa: As our comments section has helpfully pointed out, I have been pantsed today by two hoax stories on two hoax sites that performed their hoaxing in a barely noticeable fashion. For what it's worth, the band has publicly commented that they did not authorize the use of the song and did so in a manner indicating that they were/are planning some kind of response, but the lawsuit claims from Survivor and EMI are fabrications. As our comments section also helpfully pointed out, the state of copyright is such that it can at times be difficult to spot the satire from true stories. That said, it doesn't excuse this writer getting fooled. We are leaving the full post as originally written below, but striked through, so that everyone can see exactly how thoroughly I was fooled today. I have been internet-ed!

Unless you've been living under an insanely large rock these past few weeks, you probably know all about the saga of Kim Davis. Davis is the Kentucky clerk so wrapped up in Christian theology that she decided to defy the United States Supreme Court's order that same-sex marriages are the law of the land and promptly refused to hand out any marriage licenses to her constituency. This, as you should know, is a wonderfully stupid story that continues to get stupider. Whatever your religion, the United States is a secular nation. A Christian government employee can no more refuse to hand out marriage licenses due to religious views than a Muslim person working for the ATF refuse to inspect a case filled with beautiful whisky, a Jewish person working for the FDA refuse to approve imports of succulent bacon, or an atheist person working for the IRS refuse to grant a religious group tax exempt status. Secular government means religion doesn't factor into the job of government. Period, paragraph, full-stop.

Davis was jailed for contempt after she refused to do her job and denied the rights of citizens in her district, as she well should have been. After her underlings began actually doing their jobs, the judge released her. Then this happened (WARNING: this video is likely to make you vomit).

Yes, with presidential hopeful Mike Huckabee leading the crowd, Kim Davis was released from jail in a manner so grossly contrived as to be accompanied by music. You know, like a wrestler's entrance into the ring. The song, sigh, was Survivor's Eye of the Tiger, best known from Rocky, a movie built on themes of religious expression, government disobedience, and oh my god none of that is true and how is this happening? It's unclear exactly what hand Huckabee had in putting together this soundtrack to celebrate the release of Davis, who is, hilariously, a registered Democrat. But what is clear is that Survivor band members are pissed.

The band Survivor has filed a $1.2 million lawsuit against Kim Davis and Mike Huckabee over the unauthorized use of its hit song “Eye of the Tiger.” Speaking with Billboard, band co-founder Jim Peterik said he was also not pleased with the unauthorized use of the song.

“The song has motivated thousands through the years to reach beyond their limits. Its use for the release of Kim Davis does not support my views or my politics.”

Now, this isn't the first rodeo between Survivor and a presidential hopeful using the song. Last presidential election cycle, then candidate Newt Gingrich used the song at a campaign stop. The difference in that case is that Gingrich had paid his ASCAP license and was perfectly free to use the song. It's unclear just what licensing arrangement Huckabee has, but I doubt that Kim Davis has license to use the song, and I'm equally certain the county jailhouse doesn't pay for ASCAP licenses for public performances. Whatever Huckabee's license is, this certainly wasn't a campaign stop for him, so it seems doubtful it would cover this kind of public performance. Others appear to agree.

NBC News spoke with Harvard Law Professor, Paul Horner, who believes Survivor has a strong case.

“Mike Huckabee and Kim Davis had no permission to use the song, bottom line,” Horner said. “This whole incident is in the national public spot light right now, and Huckabee is running for president; he should have known better.”

Of course, even if it's true that this was an infringing use, copyright law limits damages to either actual damages or statutory damages, which max out at $150,000 per infringement. It's not clear how anyone can get to $1.2 million with that. They're going to have a hell of a time proving $1.2 million in "actual damages" if that's what they're planning.

Adding to the idea that the public performance wasn't properly licensed is that EMI has jumped into this legal dustup as well.

“As far as I have heard, no one secured the rights to that public performance of ‘Eye of the Tiger’ and as a result they violated EMI’s intellectual property rights today,” adds [IP attorney Paul] Steiner. “It is illegal for someone to ignore IP law and would make the offending parties guilty of infringement under Copyright Law (17 U.S.C. § 501(a)).”

Steiner alleges that he has already heard of the record company executives “taking exception” to the use of their intellectual property to “help a criminal grandstand in front of an audience”.

As Steiner later goes on to note, record companies oftentimes look the other way in situations like this, because the playing of music is free publicity. In this case, however, with Huckabee standing next to Kim Davis, with their collective message being so downright toxic and misplaced in the legal context, I can certainly understand why neither EMI nor the band would want to in any way be associated with this fiasco. That isn't to say that I think that a million dollar lawsuit is the best approach here. Certainly some action would need to be taken if the band wants to distance itself from Davis' hate-message.

But we need to always be mindful of the original intent and purpose of copyright law in cases like these. Even for those of us that might detest Davis and her message, or who might equally detest an individual that thinks they can lord over her constituents in a blatantly unconstitutional manner, the notion that copyright might be deployed in a manner that ultimately is a picking and choosing who can use art based on their political messages is somewhat distasteful as well. After all, judging from the band's reaction, I imagine they wouldn't be quite so frothy at the mouth if Davis' political message were one with which the band agreed. That deviates from the purpose of copyright, which was to encourage expression, not insulate a band from political associations.

Filed Under: ascap, copyright, eye of the tiger, kim davis, mike huckabee, performance rights, survivor
Companies: emi

ASCAP's Bill Of Wrongs

from the stage-and-symptom-of-the-grieving-process dept

ASCAP has published a Bill of Rights for Songwriters and Composers, which, unfortunately, seems to be more like a bill of "wrongs."

Just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so - an outcome that would diminish artistic expression today and for future generations.

Which U.S. Constitution is ASCAP reading? The U.S. Constitution provision says, "the Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." There is nothing in the U.S. Constitution to suggest that copyright law has anything to do with protecting artists' natural rights, copyright hardly exists for a limited amount of time anymore, and Thomas Jefferson and James Madison were quite skeptical of the concept.

And the claim that such laws are required to make a living as an artist is very debatable, and I'd beg to differ. There was art before copyright law existed, and many artists are making their living today despite copyright law (rather than because of it).

At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys.

Who is seeking to devalue artistic expression? Price and value are not the same thing. Just because the economics of digital goods have pushed the price of music towards zero (the marginal cost) does not mean that music no longer has value. This sort of statement needs to be substantiated.

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

Why? In what other industries do creators maintain control over their creations after they reach consumers? Lenovo has no right to be compensated for the use of my laptop or to share in the revenue I generate through developing software. This is not a given.

2. We have the right to license our works and control the ways in which they are used.

Again - why? How many other industries control the way their works are used? This is not a given.

3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

This is not the purpose of copyright law at all, especially since it’s supposed to be for a limited time. This, in fact, is a restriction on artistic expression. Though it may be troubling to have a work associated with something that you don't agree with, I believe that freedom of speech is more important for artistic expression than total control.

There are defamation and libel laws for serious abuses.

4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

Theft and copyright infringement are not the same thing. And the sharing and spreading of music through digital channels is natural and, more importantly, does not deprive artists of their right ability to earn a living.

Bad, out-dated, obsolete business models based on artificial scarcity deprive artists of their right ability to earn a living.

(I'm not sure if this is a "right" because they seem to be confusing royalties and salaries.)

5. We have the right to choose when and where our creative works may be used for free.

Why? Coca-cola doesn't have the right to determine whether its products can be given away for free as part of a promotion after a pizza store purchases them. This is not a given.

6. We have the right to develop, document and distribute our works through new media channels - while retaining the right to a share in all associated profits.

Wow, that started off great, but the ending sounds like Billy Bragg's whining in the New York Times. The phrase "all associated profits" seems quite overarching. This sounds like musicians claiming that MySpace and Bebo owe them money for their success, while denying that the reverse could ever be true, that a new media company would be entitled to share in "all associated profits" of an artist it enables to succeed.

Double standard much?

7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

Excellent! I actually agree with this whole-heartedly. I do not want ASCAP to represent me!

8. We have the right to earn compensation from all types of "performances," including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

This sounds like Viacom's misunderstanding of the difference between content and communication. ASCAP is treating the Internet like other forms of broadcast, but the Internet isn't a broadcast medium. It's a communications medium. When it comes to communication, the idea of using copyright to restrict content gets weird in a hurry. Royalties are not the answer for the digital age.

9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.

Sure you do, but that doesn't mean you'll make any money. Economics aren't about what you want to happen, or what you think should happen. Economics are about what is happening. Business models that don't make sense given the economics won't succeed. Of course you have the right to choose whatever business model you like, but that doesn't mean it will be successful or that it should be protected by copyright law.

The end of that statement sounds like another case of confusing royalties and salaries.

10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Of course you do, but again, I don't think it's a great idea if you subscribe to this "bill of rights." Moreover, consumers also have the right to advocate for better laws that protect their interests and vigorously uphold and protect their rights, which our current laws fail to do.

Artists can advocate whatever they want, but it's a bad idea to advocate the opposite of what your fans want.

Conclusion

This supposed bill of rights is really just an assertion of the status quo by those who depend on copyright law to protect their obsolete business models. If people in the music business could only realize that they're in the business of providing an enjoyable experience surrounding music, rather than trying to control and monetize every possible use of art, they might open up to new business models that make sense rather than whine about the fact that their current business models don't work anymore.

This isn't a bill of rights. It's a stage and symptom of the grieving process.

Signing this and, worse yet, living by it, would be an economic and ethical mistake for any songwriter or composer.

Filed Under: ascap, composers, copyright, rights, songwriters
Companies: ascap

Do Songwriters Deserve A Cut Of Yahoo Search Revenue?

from the highway-robbery dept

You may recall a couple weeks ago that a judge set new rates to be paid to ASCAP by AOL, Yahoo and RealNetworks. ASCAP represents the songwriters, and those three companies and ASCAP could not agree on licensing terms for music streamed online. While ASCAP ran around touting the (somewhat made up) $100 million owed, there was plenty more in the decision that deserved discussion. At last week's San Francisco Music Tech Summit, I got into an interesting discussion with a few folks who had read through the 153 page decision thoroughly, and noticed a variety of problems. You can read the whole decision (pdf) yourself, if you want, but there are a few key points that are extremely disturbing, and could spell a lot of trouble. Basically, there's a meaningless "formula" that's applied to a very large segment of these companies' revenue, taking a huge chunk of money that seems beyond reasonable.

The judge seems to consider what AOL and Yahoo do somewhat equivalent to the way TV stations use music, and refers back to the rate agreements set up with various TV networks, despite vast differences in the way these websites operate. It suggests a misunderstanding between the difference between broadcast and interactive content. But what's really troublesome, is when you look at the overall formula for how the royalties are set. It clearly overvalues the music, and undervalues just about every other part of these three companies' businesses. The formula is, basically, the total revenue made by any business unit (minus a few specific costs) multiplied by a bizarre fraction (called the music-adjustment fraction): total number of hours that music is streamed, divided by total number of hours used on the website. Then, you take the result of that and multiply it by the "rate fee" of 2.5%.

This formula is applied to revenue coming in from any business unit that is considered to have used music. This includes things like Yahoo's search engine. That's because Yahoo (smartly, from a consumer perspective) allowed users who searched on a musician or song to stream that song directly from the search results. But, in making that so user friendly, the company has now opened up its cash cow search revenue to this formula, despite the fact that it's incredibly difficult to think that music has anything to do with nearly all of the revenue Yahoo makes from this site. Similarly, RealNetworks has almost its entire consumer division revenue included in this formula, despite the fact that it makes a ton of revenue from its gaming business. Wondering why RealNetworks decided to spin off the gaming business a week after this decision was announced? Maybe because a rate court judge just chopped off a huge chunk of revenue from it and handed it over to songwriters who have nothing to do with these games.

As for the formula itself, it makes little sense. The "music-adjustment fraction" is a totally meaningless number. The number of hours music is streamed is hardly an indicator of how much of a site's revenue is actually music based. If I have music streaming in the background all day, but am still using the site for other purposes, it seems ridiculous to include all of that as music-based revenue. The denominator of the fraction is "total number of hours on the website" which is also a totally meaningless and unrelated number. Even worse, since the court notes that none of these sites actually track that information, the judge ruled that everyone should just use Comscore's numbers instead -- the same Comscore that most people admit is not particularly accurate. So, basically, you're dividing a meaningless number by an even more meaningless number and multiplying it by the total revenue of units who often have very little to do with music, and then taking 2.5% of that. If anything, this ruling should make any site think twice before including any streaming audio from any ASCAP-affiliated songwriters.

Filed Under: ascap, copyright, rate court, royalties, songwriters
Companies: aol, ascap, realnetworks, yahoo

District Court Tells Yahoo, AOL To Pay Millions To Songwriters

from the watch-for-the-appeal dept

In the latest of many arguments about the various rights and payments companies need to pay for streaming music online, a district court has ruled that AOL, Yahoo and RealNetworks most likely owe millions to ASCAP for songs that they streamed to users between 2002 and today (and continuing on to 2009). This has nothing to do with the record labels -- ASCAP represents the songwriters -- but is yet another extraneous "license" where the terms are hardly clear, but basically serve to make it more difficult for anyone to play music. It was never in question that these sites would need to pay some kind of royalty -- the question was how much. The odd part of this ruling, though, is that the rate set by the judge is likely to be higher than the rate that traditional terrestrial radio pays. If there ever were a formula for making companies less interested in streaming music online -- this might be it. Of course, it's quite likely that this ruling will be appealed, so it's far from over.

Filed Under: ascap, compulsory licensing, royalties, songwriters
Companies: aol, realnetworks, yahoo