I don't understand how this is "trying to have it both ways."
They are trying to get Pandora to pay the statutory rates that are settled under FEDERAL copyright laws.
This is because the various state "copyright" laws are not exactly copyright laws, but things like "unfair competition" (which usually has a "passing-off" component, like trademarks) and "unauthorized distribution" (which only covers distribution of copies).
None (that I know of) establish any sort of royalty requirements for public performances, or even cover public performances at all.
So, they are essentially saying that public performances of pre-1972 sound recordings should be treated as if they were covered under Federal copyright law, but that DMCA immunity regarding pre-1972 sound recordings should not be treated as if they were covered under Federal copyright law.
Interesting idea, but doubtful. Section 230 has this:
I thought that state intellectual property claims didn't count, at least according to the 3rd Circuit:
While the scope of federal intellectual property law is relatively well-established, state laws protecting "intellectual property," however defined, are by no means uniform. Such laws may bear various names, provide for varying causes of action and remedies, and have varying purposes and policy goals. Because material on a website may be viewed across the Internet, and thus in more than one state at a time, permitting the reach of any particular state's definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress's expressed goal of insulating the development of the Internet from the various state-law regimes. See 47 U.S.C. Sec. 230(a) and (b); see also Batzel, 333 F.3d at 1027 (noting that "courts construing Sec. 230 have recognized as critical in applying the statute the concern that law-suits could threaten the 'freedom of speech in the new and burgeoning Internet medium' " (quoting Zeran, 129 F.3d at 330)). In the absence of a definition from Congress, we construe the term "intellectual property" to mean "federal intellectual property."
If anyone cares, Devlin Hartline has written a post about this brief on his "Law Theories" blog: http://lawtheories.com/?p=1058
Unsurprisingly, it is both dismissive and dishonest.
FYI, I suspect that Hartline is none other than notorious Techdirt troll Average Joe. Of course, I don't know this for sure, and if it's not true, I owe Hartline an apology for even suggesting it.
If, indeed, pre-1972 recordings are not covered by the DMCA, because those recordings are produced under state (not Federal) copyright laws, then wouldn't they be covered by the other "safe harbors," 47 USC 230?
The pre-1972 recordings would be covered by state (not Federal) copyright law, so they would seem to fall under 47 USC 230(e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
The Section 230 safe harbors are considerably more robust than the DMCA's, so this may work out better for service providers. Has anyone made that argument?
Which is why I've always argued that we shouldn't use terms like "consume" in relation to experiencing content.
I get your point. Unfortunately, it comes from the term "consumer" - which is an economic term, widely-understood, and unlikely to change.
It would probably be better to use the term "user" of the content, in the same sense as a software user, since that's closer to the truth. I doubt that the term will catch on, though.
Re: Re: Re: Illegally downloaded public domain papers
Copyright regulates what one can do once one has a legitimate copy in one's possession. And it very much appears that this is what we are talking about in Maxwell's case.
If that copy is of something that is in the pubic domain, then copyright law does not regulate what one can do with it - even if it is not a "legitimate" copy.
Since those documents are in the public domain, Maxwell could not possibly have violated copyright law, even if he did not get them from JSTOR legitimately, and/or did not have permission from JSTOR to make them available on The Pirate Bay. Were that the case, he may have been in breach of contract with JSTOR, but not of copyright law.
But no matter what, once Maxwell (or anyone else) put them on The Pirate Bay, anyone could download the documents, and the downloaders would break absolutely no law by doing so. They would break no law even if Maxwell violated his contract with JSTOR in order to get the documents. The people who get the documents from The Pirate Bay don't have a contract with JSTOR, so they didn't break any law.
The legality of downloading something is perfectly up to the discretion of the person providing the downloading service. If there is any form of access control, circumventing the access control is illegimately accessing that service and its bandwidth.
- The artists did not download the documents from JSTORE. They got them from The Pirate Bay (or, more accurately, from the swarm of users who connected to the torrent that was linked to on The Pirate Bay). So, yes, the documents were perfectly legal to download.
- The person who created the torrent (Greg Maxwell) got the documents from JSTORE, but he procured them legally through his legitimate access to that service. (The article puts scare quotes around "procured legally," though nobody has ever claimed that they were not.)
- Even if he did not, illegitimately accessing a service is not piracy. It may be a breach of contract (or worse), but it is not a violation of copyright law.
So, no, nothing that anyone did in this case amounts to piracy in any way, shape, or form.
Unfortunately, this shows how far rights holders have managed to frame the discussion about copyright.
To copyright holders (or at least the organizations that ostensibly represent them), there is no distinction between "unauthorized" and "infringing." An unauthorized copy is a pirated copy, regardless of whether that copy is in the public domain, is not copyrightable (e.g. purely factual), covered by fair use, etc.
What copyright holders don't (or won't) recognize is that by conflating these uses with piracy, they're only making "piracy" look better to the public. This project is a perfect example.
As if legally uploaded videos are 72+ minutes long.
If I understand the way Megavideo worked, that 72 minutes was per day, not per video.
So, watching five 15-minute videos would put you over the limit as well.
In any case, the length of a video tells us nothing about whether or not the video is pirated. A 20-minute video of (say) Archer is probably infringing; a 72-minute video of a video game playthrough is probably not.
Mike Masnick just hates it when copyright law is enforced.
Mike Masnick is not facing hundreds of thousands of dollars in fines, and referrals by judges to law enforcement agencies, when copyright law is enforced.
Unlike Team Prenda.
So, right now, I'm betting it is the supporters of Team Prenda who really hate it when copyright law is enforced.
The first thing to do is to convince the actual creators. Too many of them are very quick to defend all the various middlemen.
That's largely because those middlemen are the only people who have daily access to the actual creators, and are actively misleading them. Those same artists then echo these lies to other artists, which is exactly what the middlemen intended.
How many musicians have said something like, "selling a million records today is the equivalent of selling 5 million records a year ago?" (I've heard it from at least two newer bands.) The numbers may change, but the statement doesn't. That's one of those things that is obviously based on nothing at all, that was fed to them by someone who works for their label.
I agree that artists really need to be educated about what's really going on, but we need to get them to stop listening to traditional industry wonks, and the other artists who parrot them.
The term cloud computing to me is Dropbox, Apple's "Cloud syncing my calendar" stuff like that.
The issue is whether a transmission of a unique copy of content, to a single person, is a "public performance" solely because the relationship between the person and the entity doing the transmitting is a commercial one.
If that is the case, then Dropbox, Apple, etc. would be engaged in public performances when they allow you to stream content from your own Dropbox folders. Say, for example, that you put a movie in your Dropbox folder. Dropbox has a system that can transcode that movie to different codecs so that you can watch it on your phone or in a web browser (at school, work, whatever).
Under the networks' theory, you watching that movie would constitute a "public performance" on Dropbox's part. That would mean that Dropbox is infringing on the movie studio's copyright. In order to avoid liability, Dropbox would have to institute a DMCA notice-and-takedown process on the movies that you stream to yourself, or work out some sort of financial deal with the studios.
If Comcast can rebroadcast a TV show or movie to my home through their cable box, what is Aereo doing that is any different?
Comcast can't do that without paying the people who make the TV show or movie. That's because they do not simply rebroadcast TV shows (and especially not movies). They have to actively choose which stations are on their networks; and they do not stream each TV station's signal to a unique subscriber, but to multiple subscribers at the same time. That's what makes it a public performance.
Aero does not do that, at least as far as their antenna systems are concerned. Their antennas only pick up the signals that TV stations choose to broadcast over the air; and Aero can't pick and choose which TV stations their antennas pick up. Each antenna only transmits a single copy of the signal it picks up, to a single unique user.
The networks want to make "public performance" include transmission of a single copy to a single unique user. Hence the problems for Dropbox.
One of the many idiocies that Spangler repeats is the notion that the Aero ruling won't affect cloud services, because those services are "already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act." (Others, like amateur-turned-professional copyright maximalist Terry Hart, have made the same argument.)
For one thing, he's wrong, because a ruling against Aero would create infringement where there currently is none. If streaming from the cloud to a single user is a "public performance," then it wouldn't matter whether the user acquired the content legally. The streaming itself - not the acquisition of the content - would infringe on the public performance right.
Second, even if he were correct, requiring DMCA protections for what are now private performances would be disastrous for cloud services and anyone who uses them. If they got DMCA protections, it likely wouldn't be under 512(a) ("Transitory Digital Network Communications"). The content is actually hosted on the cloud provider's network, so they would be protected under 512(c) ("Information Residing on Systems or Networks At Direction of Users").
This is one of the sections of the DMCA that falls under the "notice and takedown" provisions. This means that the only way cloud services would escape libaility is if they allowed copyright holders to issue takedown notices of users private files.
It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.
The only possible way that cloud computing can continue to operate is if they don't need DMCA protection in the first place. And it should be obvious why they shouldn't. As long as a single copy of a copyrighted work is streamed to a single user, both the legal history and common sense dictate that it shouldn't be a public performance.
(I posted this same comment on the Variety story, so we'll see if there's a response.)
Intellectual property is an evil capitalist concept, comrade. Your work belongs to us!
Nice attempt at being an agent provocateur, douchebag.
Of course, it's a total fail. Intellectual property is not a "capitalist concept." It is a government-granted monopoly, and government-granted monopolies are the opposite of laissez-faire capitalism.
First of all: no, I'm not going to exclude citing Google when they explain how their own services work, just because you're a hatemonger. I won't avoid getting information from the horse's mouth merely because you bet on the wrong horse.
"You mean those links that come up in searches that almost nobody does"
But you can do this yourself with Google Trends, which shows the number of times people searched for a particular term. Search for some content, then search for that same content with the phrase "torrent" (or whatever) appended. The volume of the second search will inevitably be much, much lower than the first.
"for which Google does not make any money?"
Non Techdirt/Google cite?
Google makes its search engine money from AdWords. This is how AdWords works: 1. Companies bid for keywords 2. People search with those keywords 3. In Google's search results, advertisements are displayed from the winners of the bids of those keywords 4. If a user clicks on a winner's ad (a "clickthrough"), the company pays Google according to their bid
For example: I do a search for "car insurance boston." At the top of the page, there are links saying "Liberty Mutual Insurance® - libertymutual.com," "$19 for Car Insurance? - GEICO.com," and "Progressive Car Insurance - Progressive.com." Down the right hand side, there are links saying "Allstate Car Insurance," "Amica Car Insurance," and a bunch of others. All of these are clearly marked as ads.
These are the links that AdWords generates, and they are how Google makes the vast majority of its money, and how it makes all of its money from search.
This tells you two things: 1. If no sponsored ads come up on Google after you do your search, Google does not make any money from that search 2. Companies pay for clickthroughs, not views, so if nobody clicks through on any of those ads, Google does not make any money from that search
So, since I didn't click on any of the links above, Google didn't make money from the search I just did. (And in fact, I usually don't even see those ads, since I have an ad blocker enabled on my web browser.)
" royalty rates that YouTube negotiated with PRO's like ASCAP and BMI"
Non Techdirt/Google cite?
How about from ASCAP itself? From its press release about the new synch royalties:
Keep in mind that this agreement does not extend to any right of public performance. In other words, this is completely separate from ASCAP performance royalties from YouTube. ASCAP publishers that choose to participate are still eligible for ASCAP performance royalties based on YouTube streams. [Emphasis in original.]
as the Wall Street Journal first reported in 2011, YouTube channel partners can collect up to 55% of revenues from every monetized view on the site, with a sizeable chunk of that 55% going directly to the owners of the song’s publishing and masters.
The process is simple. YouTube has an ad system, which places ads on videos. 55% of the revenue that the advertisers pay to YouTube is then accounted towards the copyright holders of the content.
What I don't understand here is that there is no potential way to create a competitive market that would be in the interests of anyone in the creative marketplace. Competition would only benefit those who seek to pay less for content.
You're forgetting that "those who seek to pay less for content" are just as much part of the "creative marketplace" as copyright holders.
In any case, exactly the same thing could be said for any form of labor. "Competition would only benefit those who seek to pay less for labor." If you believe that, then you are arguing against capitalism itself. (You can do this if you wish, just be aware that this is what you are doing.)
There are not two or three of every artist, there is only one. By definition, that artist is his (or her, or their) own monopoly.
Not exactly. "By definition," an artist has a monopoly on his (or her, or their) labor. They do not, "by definition," have a monopoly on the products of their labor - that is, on copies of their songs.
That is why copyright exists in the first place. Congress was granted the ability to create copyright laws precisely because artists do not, by definition, hold a monopoly on their published works. Copyright is that monopoly, created out of whole cloth by Congressional statutes.
Competitive markets assume that two or more suppliers can provide the exact same product, and they compete on price. Music is a monopoly at it's very root. You can select other artists, but you cannot select the same artist at a lower rate.
Were it not for copyright laws, you could do exactly that. Two or more suppliers could provide exactly the same product (a copy of a song), and they would compete on price.
Essentially, there is no such thing as a "competitive market" when copyright is involved. This is actually made very explicit in the ruling:
Section IX of AFJ2 requires the rate court to set a "reasonable" fee for a requested license, but that term is not defined in AFJ2. Governing precedent dictates, however, that in determining the reasonableness of a licensing fee, a court "must attempt to approximate the 'fair market value' of a license -- what a license applicant would pay in an arm’s length transaction." MobiTV, Inc., 681 F.3d at 82. "In so doing, the rate-setting court must take into account the fact that ASCAP, as a monopolist, exercises market-distorting power in negotiations for the use of its music." The Second Circuit has recognized that, because music performance rights are largely aggregated in the PROs which operate under consent decrees, "there is no competitive market in music rights." ASCAP v. Showtime/The Movie Channel, 912 F.2d 563, 577 (2d Cir. 1990). Consequently, fair market value is a "hypothetical" matter. In such circumstances, "the appropriate analysis ordinarily seeks to define a rate or range of rates that approximates the rates that would be set in a competitive market."
The real competitive market here is the companies like Pandora, Sky.FM, and other streaming music companies. They are the ones bidding to obtain content.
They are competing for more than that. They are also competing for advertising dollars and user subscriptions. And they are not just competing with other streaming services, but with terrestrial radio as well.
The difference between that market and the market in which rights holders operate is night and day. If the music market was truly competitive on the rights holders' end, then rights holders would compete against each other to provide Pandora, Sky.FM, IHeartRadio, and so on with content. And they would lower their rates due to this competition.
That clearly didn't happen here, and it generally doesn't happen among rights holders. They have a long and sordid history of forming cabals.
You cannot force a monopoly to compete with itself. That would be silly.
You can, however, bust that monopoly. That's what the Justice Department was going to do to ASCAP and BMI in the 1930's and 1940's. Instead, as a settlement, they created the consent decrees that both PRO's currently operate under.
As for ASCAP themselves, I have a tiny bit of sympathy for them. If they had signed a deal with exactly the same royalty terms as the court set, they would have gotten sued by both Sony and Universal. The sad, sordid story is in the ruling; it's worth a read.
Pandora bought a radio station just so it could then qualify for the same rates terrestrial radio stations pay. It was a direct result of the ASCAP/SONY fight. This is why the rates decreased from what Pandora had agreed to before ASCAP reneged on the deal.
That had nothing to do with the final rate that the court decided. If it had, Pandora would be paying 1.7%, the same rate that IHeartRadio pays, and not the higher 1.85% rate. (And, in fact, that purchase hasn't gone through yet - ASCAP opposes the purchase). The judge rejected that rate ("The answer to that question, while close, is no") because that rate applies to Clear Channel generally, not just its internet streams (interactive or not), and the internet portion of its business is tiny in comparison to terrestrial radio.
No, the rate is set because that's the rate that Pandora has historically been paying since 2004. It's not paying the higher rates because those rates were not negotiated fairly, and Pandora was essentially blackmailed into accepting them.
According to Pandora, ASCAP had already made an agreement with them that increased the royalties ASCAP received:
In November of last year, following a lengthy negotiation, Pandora agreed with ASCAP to a new rate, an increase over the prior amount, and shook hands with ASCAP management. Not only was our hand-shake agreement rejected by the ASCAP board, but shortly thereafter we were subjected to a steady stream of "withdrawals" by major publishers from ASCAP and BMI seeking to negotiate separate and higher rates with Pandora, and only Pandora. This move caused us to seek the protection of the rate, also recently negotiated, enjoyed by the online radio streams of broadcast radio companies. It’s important to note that these streams represent 96% of the Internet radio listening hours among the top 20 services outside of Pandora (talk about an un-level playing field). We did not enter this period looking for a lower rate – we agreed to a higher rate. But in a sad irony, the actions of a few small, but powerful publishers seeking to gain advantage for themselves has caused all songwriters’ royalties to go down.
Additionally, who pays for the legal fight? The artists. The costs for the legal fees that ASCAP paid come directly out of artists' pockets, in the form of "administration costs." Those costs rose this year to about 14% of the royalties ASCAP collects, and the increase is generally attributed to the legal fight with Pandora.
So, congratulations, ASCAP. Thanks to you and the major-label publishers, you've just wasted artists' money to make artists' royalties go down.
On the post: And, Of Course, Labels Sue Pandora Over Pre-1972 Recordings
Re:
They are trying to get Pandora to pay the statutory rates that are settled under FEDERAL copyright laws.
This is because the various state "copyright" laws are not exactly copyright laws, but things like "unfair competition" (which usually has a "passing-off" component, like trademarks) and "unauthorized distribution" (which only covers distribution of copies).
None (that I know of) establish any sort of royalty requirements for public performances, or even cover public performances at all.
So, they are essentially saying that public performances of pre-1972 sound recordings should be treated as if they were covered under Federal copyright law, but that DMCA immunity regarding pre-1972 sound recordings should not be treated as if they were covered under Federal copyright law.
That is "trying to have it both ways."
On the post: Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings
Re: Re: Re: Section 230?
Uh, "according to the 9th Circuit." Duh.
On the post: Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings
Re: Re: Section 230?
I thought that state intellectual property claims didn't count, at least according to the 3rd Circuit:
- Perfect 10 v. CCBill
I honestly don't think it would fly either, but I'm surprised that nobody has even raised the argument.
On the post: Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech
An Unhelpful Hartline
http://lawtheories.com/?p=1058
Unsurprisingly, it is both dismissive and dishonest.
FYI, I suspect that Hartline is none other than notorious Techdirt troll Average Joe. Of course, I don't know this for sure, and if it's not true, I owe Hartline an apology for even suggesting it.
On the post: Recording Industry Wants To Have It Both Ways When It Comes To Pre-1972 Recordings
Section 230?
The pre-1972 recordings would be covered by state (not Federal) copyright law, so they would seem to fall under 47 USC 230(e)(3): "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
The Section 230 safe harbors are considerably more robust than the DMCA's, so this may work out better for service providers. Has anyone made that argument?
On the post: Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone
Re: Re: Conflation
I get your point. Unfortunately, it comes from the term "consumer" - which is an economic term, widely-understood, and unlikely to change.
It would probably be better to use the term "user" of the content, in the same sense as a software user, since that's closer to the truth. I doubt that the term will catch on, though.
On the post: Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone
Re: Re: Re: Illegally downloaded public domain papers
If that copy is of something that is in the pubic domain, then copyright law does not regulate what one can do with it - even if it is not a "legitimate" copy.
Since those documents are in the public domain, Maxwell could not possibly have violated copyright law, even if he did not get them from JSTOR legitimately, and/or did not have permission from JSTOR to make them available on The Pirate Bay. Were that the case, he may have been in breach of contract with JSTOR, but not of copyright law.
But no matter what, once Maxwell (or anyone else) put them on The Pirate Bay, anyone could download the documents, and the downloaders would break absolutely no law by doing so. They would break no law even if Maxwell violated his contract with JSTOR in order to get the documents. The people who get the documents from The Pirate Bay don't have a contract with JSTOR, so they didn't break any law.
On the post: Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone
Re: Illegally downloaded public domain papers
- The artists did not download the documents from JSTORE. They got them from The Pirate Bay (or, more accurately, from the swarm of users who connected to the torrent that was linked to on The Pirate Bay). So, yes, the documents were perfectly legal to download.
- The person who created the torrent (Greg Maxwell) got the documents from JSTORE, but he procured them legally through his legitimate access to that service. (The article puts scare quotes around "procured legally," though nobody has ever claimed that they were not.)
- Even if he did not, illegitimately accessing a service is not piracy. It may be a breach of contract (or worse), but it is not a violation of copyright law.
So, no, nothing that anyone did in this case amounts to piracy in any way, shape, or form.
On the post: Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone
Conflation
To copyright holders (or at least the organizations that ostensibly represent them), there is no distinction between "unauthorized" and "infringing." An unauthorized copy is a pirated copy, regardless of whether that copy is in the public domain, is not copyrightable (e.g. purely factual), covered by fair use, etc.
What copyright holders don't (or won't) recognize is that by conflating these uses with piracy, they're only making "piracy" look better to the public. This project is a perfect example.
On the post: MPAA's Lawsuit Against Megaupload Is Yet Another Broadside Attack On The Internet
Re: Megaupload
If I understand the way Megavideo worked, that 72 minutes was per day, not per video.
So, watching five 15-minute videos would put you over the limit as well.
In any case, the length of a video tells us nothing about whether or not the video is pirated. A 20-minute video of (say) Archer is probably infringing; a 72-minute video of a video game playthrough is probably not.
On the post: Appeals Court Not At All Impressed By Prenda's Appeal
Re:
Mike Masnick is not facing hundreds of thousands of dollars in fines, and referrals by judges to law enforcement agencies, when copyright law is enforced.
Unlike Team Prenda.
So, right now, I'm betting it is the supporters of Team Prenda who really hate it when copyright law is enforced.
On the post: Yet Another Music Collection Society Corruption Scandal May Lead To Real Copyright Reform In Peru
Re: Re:
That's largely because those middlemen are the only people who have daily access to the actual creators, and are actively misleading them. Those same artists then echo these lies to other artists, which is exactly what the middlemen intended.
How many musicians have said something like, "selling a million records today is the equivalent of selling 5 million records a year ago?" (I've heard it from at least two newer bands.) The numbers may change, but the statement doesn't. That's one of those things that is obviously based on nothing at all, that was fed to them by someone who works for their label.
I agree that artists really need to be educated about what's really going on, but we need to get them to stop listening to traditional industry wonks, and the other artists who parrot them.
On the post: Those Who Insist Aereo Ruling Won't Impact Cloud Computing Don't Seem To Understand Cloud Computing
Re:
The issue is whether a transmission of a unique copy of content, to a single person, is a "public performance" solely because the relationship between the person and the entity doing the transmitting is a commercial one.
If that is the case, then Dropbox, Apple, etc. would be engaged in public performances when they allow you to stream content from your own Dropbox folders. Say, for example, that you put a movie in your Dropbox folder. Dropbox has a system that can transcode that movie to different codecs so that you can watch it on your phone or in a web browser (at school, work, whatever).
Under the networks' theory, you watching that movie would constitute a "public performance" on Dropbox's part. That would mean that Dropbox is infringing on the movie studio's copyright. In order to avoid liability, Dropbox would have to institute a DMCA notice-and-takedown process on the movies that you stream to yourself, or work out some sort of financial deal with the studios.
If Comcast can rebroadcast a TV show or movie to my home through their cable box, what is Aereo doing that is any different?
Comcast can't do that without paying the people who make the TV show or movie. That's because they do not simply rebroadcast TV shows (and especially not movies). They have to actively choose which stations are on their networks; and they do not stream each TV station's signal to a unique subscriber, but to multiple subscribers at the same time. That's what makes it a public performance.
Aero does not do that, at least as far as their antenna systems are concerned. Their antennas only pick up the signals that TV stations choose to broadcast over the air; and Aero can't pick and choose which TV stations their antennas pick up. Each antenna only transmits a single copy of the signal it picks up, to a single unique user.
The networks want to make "public performance" include transmission of a single copy to a single unique user. Hence the problems for Dropbox.
On the post: Those Who Insist Aereo Ruling Won't Impact Cloud Computing Don't Seem To Understand Cloud Computing
DMCA protections....
For one thing, he's wrong, because a ruling against Aero would create infringement where there currently is none. If streaming from the cloud to a single user is a "public performance," then it wouldn't matter whether the user acquired the content legally. The streaming itself - not the acquisition of the content - would infringe on the public performance right.
Second, even if he were correct, requiring DMCA protections for what are now private performances would be disastrous for cloud services and anyone who uses them. If they got DMCA protections, it likely wouldn't be under 512(a) ("Transitory Digital Network Communications"). The content is actually hosted on the cloud provider's network, so they would be protected under 512(c) ("Information Residing on Systems or Networks At Direction of Users").
This is one of the sections of the DMCA that falls under the "notice and takedown" provisions. This means that the only way cloud services would escape libaility is if they allowed copyright holders to issue takedown notices of users private files.
It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.
The only possible way that cloud computing can continue to operate is if they don't need DMCA protection in the first place. And it should be obvious why they shouldn't. As long as a single copy of a copyrighted work is streamed to a single user, both the legal history and common sense dictate that it shouldn't be a public performance.
(I posted this same comment on the Variety story, so we'll see if there's a response.)
On the post: Girl Scouts Get A Badge In Intellectual Property Maximalism
Re:
Nice attempt at being an agent provocateur, douchebag.
Of course, it's a total fail. Intellectual property is not a "capitalist concept." It is a government-granted monopoly, and government-granted monopolies are the opposite of laissez-faire capitalism.
On the post: Judge Highlights Bogus Collusion By ASCAP, Publishers In Rejecting Their Attempt To Jack Up Pandora's Rates
Re: Re: Re: Re: Re: So basically . . .
"You mean those links that come up in searches that almost nobody does"
Non Techdirt/Google cite?
Who Looks For Infringing Content With Search Engines? Infringers, Not So Much.
But you can do this yourself with Google Trends, which shows the number of times people searched for a particular term. Search for some content, then search for that same content with the phrase "torrent" (or whatever) appended. The volume of the second search will inevitably be much, much lower than the first.
"for which Google does not make any money?"
Non Techdirt/Google cite?
Google makes its search engine money from AdWords. This is how AdWords works:
1. Companies bid for keywords
2. People search with those keywords
3. In Google's search results, advertisements are displayed from the winners of the bids of those keywords
4. If a user clicks on a winner's ad (a "clickthrough"), the company pays Google according to their bid
For example: I do a search for "car insurance boston." At the top of the page, there are links saying "Liberty Mutual Insurance® - libertymutual.com," "$19 for Car Insurance? - GEICO.com," and "Progressive Car Insurance - Progressive.com." Down the right hand side, there are links saying "Allstate Car Insurance," "Amica Car Insurance," and a bunch of others. All of these are clearly marked as ads.
These are the links that AdWords generates, and they are how Google makes the vast majority of its money, and how it makes all of its money from search.
This tells you two things:
1. If no sponsored ads come up on Google after you do your search, Google does not make any money from that search
2. Companies pay for clickthroughs, not views, so if nobody clicks through on any of those ads, Google does not make any money from that search
So, since I didn't click on any of the links above, Google didn't make money from the search I just did. (And in fact, I usually don't even see those ads, since I have an ad blocker enabled on my web browser.)
Information confirming this can be found all over the web:
http://www.google.com/adwords/how-it-works/ads-on-google.html
http://www.investopedia.com/stock-a nalysis/2012/what-does-google-actually-make-money-from-goog1121.aspx
http://www.wired.com/culture/cul turereviews/magazine/17-06/nep_googlenomics
http://www.channel4.com/news/if-google-is-free-how-does-i t-make-so-much-money
" royalty rates that YouTube negotiated with PRO's like ASCAP and BMI"
Non Techdirt/Google cite?
How about from ASCAP itself? From its press release about the new synch royalties:
- http://www.ascap.com/playback/2011/11/action/license-your-youtube.aspx
(Of course, this didn't stop ASCAP to attempt to double-dip, and demand additional royalties from people who embedded YouTube videos on their own sites.)
"rights holders keep more than half of the advertising income on YouTube videos"
Non Techdirt/Google cite?
- http://www.digitalmusicnews.com/permalink/2014/01/21/jeff-price-audiam
- http://www.billboard.com/biz/articles/news/branding/1539260/harlem-shake-the-making-and-monetizing-o f-the-latest-youtube
- http://thisindustrythingofours.wordpress.com/2014/03/04/now-you-know-everything-about-music-publishi ng
BTW, what, exactly, is the advertising income? Hmm? Karl?
Yes indeedy, please point us to the link where Google discloses ad income.
Well, Google is publicly traded, so they have to file quarterly reports...
http://investor.google.com/financial/tables.html
https://investor.google.com/earnings/2013/ Q4_google_earnings.html
http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001288776& amp;owner=include
VentureBeat can break it down for you, if you're lazy:
http://venturebeat.com/2013/10/17/googles-strong-q3-2013-14-9b-in-revenue-and-higher-earnings-t han-expected/
Uh huh.
That's what I thought.
That you're a liar?
On the post: Judge Highlights Bogus Collusion By ASCAP, Publishers In Rejecting Their Attempt To Jack Up Pandora's Rates
Re: competitive market
You're forgetting that "those who seek to pay less for content" are just as much part of the "creative marketplace" as copyright holders.
In any case, exactly the same thing could be said for any form of labor. "Competition would only benefit those who seek to pay less for labor." If you believe that, then you are arguing against capitalism itself. (You can do this if you wish, just be aware that this is what you are doing.)
There are not two or three of every artist, there is only one. By definition, that artist is his (or her, or their) own monopoly.
Not exactly. "By definition," an artist has a monopoly on his (or her, or their) labor. They do not, "by definition," have a monopoly on the products of their labor - that is, on copies of their songs.
That is why copyright exists in the first place. Congress was granted the ability to create copyright laws precisely because artists do not, by definition, hold a monopoly on their published works. Copyright is that monopoly, created out of whole cloth by Congressional statutes.
Competitive markets assume that two or more suppliers can provide the exact same product, and they compete on price. Music is a monopoly at it's very root. You can select other artists, but you cannot select the same artist at a lower rate.
Were it not for copyright laws, you could do exactly that. Two or more suppliers could provide exactly the same product (a copy of a song), and they would compete on price.
Essentially, there is no such thing as a "competitive market" when copyright is involved. This is actually made very explicit in the ruling:
The real competitive market here is the companies like Pandora, Sky.FM, and other streaming music companies. They are the ones bidding to obtain content.
They are competing for more than that. They are also competing for advertising dollars and user subscriptions. And they are not just competing with other streaming services, but with terrestrial radio as well.
The difference between that market and the market in which rights holders operate is night and day. If the music market was truly competitive on the rights holders' end, then rights holders would compete against each other to provide Pandora, Sky.FM, IHeartRadio, and so on with content. And they would lower their rates due to this competition.
That clearly didn't happen here, and it generally doesn't happen among rights holders. They have a long and sordid history of forming cabals.
You cannot force a monopoly to compete with itself. That would be silly.
You can, however, bust that monopoly. That's what the Justice Department was going to do to ASCAP and BMI in the 1930's and 1940's. Instead, as a settlement, they created the consent decrees that both PRO's currently operate under.
On the post: Judge Highlights Bogus Collusion By ASCAP, Publishers In Rejecting Their Attempt To Jack Up Pandora's Rates
Re: I'm surprised....
That's kind of why the Consent Decree exists in the first place. Except it's not RICO, it's the Sherman Antitrust Act.
http://en.wikipedia.org/wiki/American_Society_of_Composers,_Authors_and_Publishers#Antitrust_law suits
As for ASCAP themselves, I have a tiny bit of sympathy for them. If they had signed a deal with exactly the same royalty terms as the court set, they would have gotten sued by both Sony and Universal. The sad, sordid story is in the ruling; it's worth a read.
On the post: Judge Highlights Bogus Collusion By ASCAP, Publishers In Rejecting Their Attempt To Jack Up Pandora's Rates
Re: Re: So much for that "handshake deal"
That had nothing to do with the final rate that the court decided. If it had, Pandora would be paying 1.7%, the same rate that IHeartRadio pays, and not the higher 1.85% rate. (And, in fact, that purchase hasn't gone through yet - ASCAP opposes the purchase). The judge rejected that rate ("The answer to that question, while close, is no") because that rate applies to Clear Channel generally, not just its internet streams (interactive or not), and the internet portion of its business is tiny in comparison to terrestrial radio.
No, the rate is set because that's the rate that Pandora has historically been paying since 2004. It's not paying the higher rates because those rates were not negotiated fairly, and Pandora was essentially blackmailed into accepting them.
On the post: Judge Highlights Bogus Collusion By ASCAP, Publishers In Rejecting Their Attempt To Jack Up Pandora's Rates
So much for that "handshake deal"
According to Pandora, ASCAP had already made an agreement with them that increased the royalties ASCAP received:
Additionally, who pays for the legal fight? The artists. The costs for the legal fees that ASCAP paid come directly out of artists' pockets, in the form of "administration costs." Those costs rose this year to about 14% of the royalties ASCAP collects, and the increase is generally attributed to the legal fight with Pandora.
So, congratulations, ASCAP. Thanks to you and the major-label publishers, you've just wasted artists' money to make artists' royalties go down.
Next >>