While I may disagree with some of Karl's comments here and in other articles re copyright law, I respect him for the obviously significant time he has taken and continues to take to inform himself on the substantive law. In many instances his insights are more accurate and nuanced than many attorneys who, when waxing poetic on copyright law, are so obviously out of their element and doing no more than "shooting from the lip".
I was going to reply to the original comment, but since this one explicitly mentions me (and is not threaded with that comment), I'll reply here.
As a candidate for an SJD he is working on a thesis delving into the ins and outs of law associated with Aereo (and others), because of which I do tend to pay close attention to what he has to say.
You should pay attention to what he says, but you should also put it in the context of other things he has said. And Hartline, like Hart, has consistently sided with copyright holders to the exclusion of any other considerations. This often comes in the form of misleading or questionable claims that turn out to be wrong. Like the idea that copyright infringement is theft, not long before a Florida judge ruled that the MPAA's use of the term "theft" in the Hotfile case is a "derogatory term" that "would serve to improperly inflame the jury." He also claimed that Righthaven had standing to sue, when every single judge (in multiple jurisdictions) who saw the SAA ruled that they didn't. He still does so even after the 9th Circuit Court ruled the same way every other court did.
It is also significant that many of his articles are written with direct feedback from Hart (like the "theft" article above), and a significant amount of his articles are cross-posted at Copyhype and no other legal blog. Put it all together, and you have someone who is not an impartial scholar, but an active advocate for copyright holders, and forms his legal opinions from other advocates. That doesn't mean he's wrong, but it does mean that you should be skeptical of what he says, and aware that his views do not represent mainstream copyright law.
I would never dismiss Mr. Hart's commentary merely because of the organization he represents.
I do not dismiss it, but I am very skeptical of it - for the same reasons as I am of Hartline. Truth be told, Hart was a rightsholder advocate long before he joined the Copyright Alliance. In fact, it's probaby why he joined the Copyright Alliance (or why the Copyright Alliance chose him).
Again, he's not necessarily wrong, but he's not impartial and doesn't represent the legal mainstream. You should take him with the same grain of salt that you take, say, Fox News.
Now, to the other A.C.
It's strange how Karl argues that we shouldn't listen to people with law degrees who have not practiced law, but then he thinks we should listen to him even though he's never even gone to law school. I guess his standards apply to everyone but him.
I have my opinions, and I obviously think they're right, or else I wouldn't have them. That doesn't mean you (or I) should completely disregard others' opinions, including Hart's and Hartline's.
And when I point out that Hartline is not a practicing lawyer, I am not saying that we shouldn't listen to him. I am pointing out that he has never tested his theories in court; and when those opinions are raised by others, they are often rejected.
Of course, I've never tested my theories in court either. But many people (including yourself, if you're who I think you are) have dismissed my opinions while considering theirs to be reliable - solely because they're "lawyers" and I'm not. If you want to make an argument from authority, you should at least understand what "authority" the other arguments have - and in their case, it's not very much.
Merely FYI, the article is by Devlin Hartline, and not Terry Hart.
Oops, you're right. I stand corrected. Copyhype is Hart's blog, so I usually assume articles on it are written by Hart himself. You know what they say about when you assume...
As far as Hartline goes, his opinions are also on the copyright maximalist side of the law. He is studying for a SJD at Tulane (after receiving a JD from Loyola in 2012). As far as I know, he has never been a practicing lawyer, so of course he's not on the payroll of any copyright advocacy organization.
I can name at least four different problems with Hart's position.
1. Hart's only argument defending cloud services is that they are protected by the DMCA. But if cloud services' only legal recourse is the DMCA, then we're all in big, big trouble. It would mean that copyright holders could issue DMCA takedown notices of our own files stored on Dropbox, Google Drive, or OneDrive. Private cloud services are only viable if they don't need DMCA protection.
2. The relationship between Aero and its subscribers is the same as the relationship between cloud services and their subscribers. If Aero's service is a "public performance" mearly for that reason, then listening to an MP3 I uploaded to my Dropbox account is also a "public performance."
3. He makes a big deal about Aero being the source of the transmissions, but they are not. Aero does not decide the content or selection of the broadcasts; the TV stations do. Aero cannot select which of those stations' broadcasts are available on its service; that is determined by which TV stations are available, free, over-the air, in the antenna's location. Aero does not decide which of those TV stations users will watch; the users do. Aero's function is a "dumb conduit" between an individual antenna and a user.
4. He completely mis-applies the "volitional conduct test." That test determines the degree of liability for infringement, but it does not create infringement where there is none. Nobody is arguing that Aero's conduct is not volitional; they are arguing that it is not infringement. If it is not infringement, then it does not matter how volitional their conduct is. The entire test is a complete red herring.
Also, you should note that Copyhype is the opinion blog of Terry Hart. Hart is not an impartial observer, but a pro-copyright advocate. He is currently the Director of Legal Policy for the Copyright Alliance, a copyright maximalist organization (and his first gig out of law school). In fact, in this very case, they submitted an amicus brief supporting broadcasters (PDF).
Anyway, there was no evidence of a written work made for hire agreement
Actually, there was, but it is in dispute. Google brought in the agreement, but Garcia claimed it was forged. The lower court didn't rule on the matter, and it didn't make it to the circuit court (yet).
Yet another reason that the preliminary injunction and gag order were bad ideas.
Well, the jury is still out on pop music songwriters, and I don't think there is or will be a blanket rule that applies to all contexts.
The jury is certainly not out on pop music songwriters, at least as they usually work. Unless you are an actual, bona fide employee of a publisher (with hourly wages or a salary, proper tax forms, etc.), your work simply cannot be a work for hire. You can, and probably will, assign your copyright, but there is a vast difference - in the case of assignment, you originally held a copyright over the song, but that's not true for a work for hire.
I disagree with the intent of adding motion pictures to that WMFH definition.
I'm sure there was a lot of lobbying money involved, but it does make sense from a purely logistical standpoint. Otherwise, every single creative person working on a film - and there may be hundreds - could possibly be a "joint author" under the copyright statutes. That would make the economic exploitation of any movie a practical impossibility.
By arguing against the order, Google is saying that actors, actresses and artists don't have the right to order takedowns of the content they either appear in or retain the ownership or copyright to.
And Google is correct. Merely appearing in a film (or other work) does not grant you the right to order takedowns of that content.
The only entities that can issue takedown notices are copyright holders. This is black-letter law.
I recently ran into this issue when one of the labels I work with issued DMCA takedown notices to one of those sharing blogs (and as a result got them shut down). While I respect his opinion on file sharing, I don't share it (ha).
There was no written contract between us, so he did not hold the copyright of my music. Thus, he would have no legal right to issue takedown notices of my music, even though he released it on his label. (It turns out that he did not do this in my case, but he may have with other artists.)
They're on a label, which means they likely don't hold the copyright to their songs any more. So, that option is out.
It's also a good guess as to why they didn't say anything sooner. If they would have said anything like that, especially while litigation was ongoing, the label would have come down on them like a ton of bricks.
Re: Re: Re: Mostly a good, tightly reasoned opinion
That's not what that law says. It says contributions from actors, etc. *can* be considered works made for hire (if there is a signed, written work made for hire agreement), not that they *are* works made for hire.
Sorry, you're right about that. I was making my point badly.
My point is that under the statutes, workers on a film (actors, directors, cinematographers, etc.) are specifically named in the statutes as possibly working for hire, even if the studio or filmmakers aren't their employers.
That makes them unlike, say, pop music songwriters - who cannot be working for hire. Unless you're one of the enumerated workers in the statute, your work can't be a work for hire, no matter what your contract says. (You can, of course, assign your copyright interest, and most artists do, but that's not the same thing.)
In other words, the law was enacted specifically so that "actors in a recorded performance have NO copyright interest whatsoever." It's not remotely "nonsensical."
It sure is a good thing that there's a blog to demonstrate how much Google loves the piracy business.
I honestly can't tell if this is sarcasm.
I mean, here you are on a blog that has nothing to do with Google, commenting on a story that has nothing to do with Google nor with endorsing piracy (much less "the piracy business"). And somehow that's proof that this blog demonstrates how much Google loves the piracy business.
If it isn't sarcasm, then it's being an agent provocateur against the copyright industry. Whether intentionally or not, you're simply making "your side" look like raving idiots.
We'll here's a fact, pal ... I'm looking at my royalty statement... One of my songs has had over 1,250,000 plays on Pandora and my payment is $35.00. Pandora apparently thinks that's too much.
Since you don't use your real name, nor tell us what song got played, there's no particular reason to believe you. But, let's say for the sake of argument that you're right.
Also for the sake of argument, I assume you're the sole composer. (If you only own, say, 50% of the copyright on the composition, then you're only going to get 50% of the royalties.) That means that your publisher also got $35.00. That is after the PRO's operating expenses; if you're on ASCAP, those expenses are currently 12.4%. This means that Pandora paid roughly $80 in songwriter's royalties for those plays.
Now consider terrestrial radio. I assume that your song is getting play on some commercial radio station in a metropolitan market. How many times do you think your song was played there? I'll put it in perspective: Radio stations owned by Clear Channel have about 243 million listeners per month. Since they own 840 radio stations, that puts each radio station's listeners at roughly 290,000 listeners (on average). If even a single one of those stations played your song more than four times per month, that radio station has already played your songs more times in that single month, than Pandora did in its entire royalty period.
Do you honestly think that a single radio station pays more than $80 per song per month to songwriters? Did any single radio station, anywhere, pay more than $35 per month to you?
In fact, we know they did not. As per a 2012 legal settlement with ASCAP, terrestrial radio stations pay a maximum rate of 1.7% of their income to PRO's. And so does IHeartRadio. What did they pay you in royalties? I'd bet dollars to donuts that it is a lot less than Pandora. Can you even tell from your royalty statements?
Westergre n has sold millions and millions of dollars worth of Pandora's stock and is stuffing money hand over fist into his personal bank account while I can't afford to take my family to McDonald's for dinner.
Westergren is a former musician and film composer who developed the Music Genome Project, then spent years maxing out his credit cards and eating Ramen before the company he founded was in any way viable. You're complaining that you're not making as much money as he is? Simple: start your own damn company.
If you're going to complain about salaries, you should complain about the CEO's of Clear Channel, who make more than $2 million per year. While we're at it, you should complain about the salaries of ASCAP and BMI executives, who have six-figure salaries that come directly out of your royalties. Or the salaries of the PRO's boards of directors - many of which earn seven figures working for major publishing companies. Said publishing companies being the same companies that own record labels, which have been trying to screw over musicians much more than Pandora ever could, for longer than either of us have been alive.
On top of that, he's spent over $10 million in court and in Washington trying to reduce what I get paid.
As I explained before, Pandora is not trying to reduce what you get paid. They would be more than happy to keep paying you the same amount that they always have (or even slightly more). They don't want to get singled out so they have to pay much more than everyone else.
Also, if Pandora spends money on litigation, it comes out of their pockets, not your royalties. The same cannot be said of ASCAP or the publishers. If the lawsuit goes against ASCAP - and it's looking like it will - then are you going to blame ASCAP for wasting money that is rightfully yours? Because you should.
They recently made a handshake deal with ASCAP that increased the amount they would pay to songwriters. NOT TRUE.
Yes, it is true:
Historically, Pandora has paid essentially the same rate as all other forms of radio, a rate established unilaterally by the performing rights organizations, ASCAP and BMI, in the late 1990s. 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.
Mr. Horowitz [CEO of Universal publishing, and member of ASCAP's board of directors] thought it appropriate to communicate to other venture publishers on ASCAP's board his e-mails to Mr. LoFrumento, urging ASCAP not to do the contemplated deal with Pandora. [...]
Just to make things more colorful, the testimony is that Sony, while this all was unfolding and when Sony got wind of the possibility that ASCAP might do a deal with Pandora before year-end, Sony threatened to sue ASCAP if it did so.
So, yeah, exactly as I said.
Because there is a certain amount of choice with Pandora, Pandora and terrestrial radio are not the same product so their rates should not be equal.
Pandora is not an on-demand service. Both terrestrial radio stations and internet services like IHeartRadio have that same amount of choice for their users. That's why ASCAP set up bifurcated rates back in 2002, which Pandora has always paid.
And, if you want to talk about shenanigans, Pandora bought a tiny terrestrial radio station in the middle of nowhere so it could claim that it's entire service should be treated like terrestrial radio.
No, it's because ASCAP sets up different rates for streaming on the internet if you are an owner of a radio station. That's why IHeartRadio pays lower royalties than Pandora, despite the fact that they're essentially the same service. Pandora was just trying to get the same internet streaming rates that Clear Channel has.
Just out of curiosity, if you're so against Pandora's rates, why aren't you up in arms about Clear Channel? They pay, much lower rates than Pandora does for the same service. Why didn't Sony and Universal threaten to walk when ASCAP dealt with them?
Re: Learn the Basics Before you Open your Pie Hole
Publishers have been understandably frustrated because ASCAP is unable to negotiate a market rate for them with Pandora because of their consent decree, so they pulled out and directly negotiated rates that were much higher.
That is not what happened.
Some publishers - namely, Sony and Universal - did what they called a "partial withdrawal." That is, they did not withdraw from ASCAP altogether - just from ASCAP's dealing with Pandora, and only with Pandora. (They did not, for example, work out separate deals with IHeartRadio, the streaming Internet music service owned by Clear Channel.)
But even this was a sham, for those publishers did not approach Pandora to work out new licensing deals. Instead, ASCAP would still administer these licenses. It's also worth mentioning that the heads of these publishers are on ASCAP's board of directors. (In fact, the court already saw through these "partial withdrawal" schemes and found they were shams.)
Well, you think, that's bogus, but Pandora should have just deleted their material from their service until it could get worked out. And that's where Sony and Universal really kicked Pandora in the nuts. Because they never provided a list of their material to Pandora. And they never asked ASCAP to do so - even though ASCAP had that data sitting and waiting. And they were not shy about doing it.(That's where the "ask me tomorrow with a drink in your hand" comment comes from.)
So, with the "withdrawal" date fast approaching, Pandora had two choices: accept whatever rate Sony and Universal were asking, or face multi-million-dollar damages from copyright infringement lawsuits. No surprise which option Pandora took.
That is not a "market rate" deal. That is blackmail.
All of this is so that ASCAP can charge Pandora for the same rate as on-demand music services - that is, services where users select which particular song is going to be played. A rate that is almost double what they were currently paying - and which is almost double what similar services such as IHeartRadio are still paying.
The Statute of Anne was passed in 1709, 2 years after the last of the unsuccessful Stationers' bills was introduced, and it was not a way to restore the stationers' monopoly
The Statute of Anne was one of the Stationers' bills.
And it certainly did restore the Stationers' monopoly - to some extent. Who do you think the Statute of Anne explicitly stated would handle all copyright registrations? (Hint: It was the Stationers.)
but a way to guard authors against the abuses that had sprung up in the power vacuum that resulted when the monopoly fell
As far as authors were concerned, there were no more "abuses" after the monopoly fell than there were beforehand. As stated above, authors never had any kind of copyright protection. Prior to the Statute of Anne, the monopoly copy rights went to the Stationer that entered the work into the register.
Authors may have supported the Statute of Anne, but only because that statute created artists' rights. In essence, those authors (most of whom had already dealt with the Stationers) hitched their wagon to a bill that was introduced and supported by the Stationers, in order to gain rights in their works that they had never before held.
if the purpose of the remix is to comment on the original artist's stated political views through parody, not only can they not stop it but that expression is explicitly protected by the 1st amendment and fair use.
This is a point that bears repeating.
When these artists say that "an artist should be able to turn down uses in connection with messages that the artist finds objectionable," they are explicitly endorsing censorship through copyright. They are granting or withholding permission, not out of any attempt to protect against infringement or protect against fiduciary exploitation, but solely because they disagree with the remixer's message.
In First Amendment terminology, this is called a content-based restriction on speech. It is one of the worst offenses against free speech that can be made. And if the government is allowing or endorsing the use of copyright in this manner, then it is unconstitutional.
Furthermore, keep in mind that by the time a work is published, the copyright holder is almost always not the artist, but the publisher (I include studios and labels as "publishers"). They are the ones that get to decide whether others can have a license for remixes, according to what they find "objectionable."
So, for example, an artist on Sony can have his music held back from any remix artist who doesn't endorse Sony products, or even just endorses a competitor's products. They could have their music withheld from any remix artist who signed the anti-SOPA petition, or even who held political views that were at odds with a candidate that Sony endorses. And the artist would have absolutely no say in the matter whatsoever.
Is this really what Tyler, Henley, and the others really want? Because it's exactly what they're endorsing.
To successfully sue Pandora for playing unlicensed songs, you'd have to be able to prove that they knew the songs were unlicensed.
It doesn't really matter if they'd win or not. They'd have the minimal amount of evidence needed to not get the case dismissed immediately. Being the defendant in a copyright infringement suit requires a huge amount of money; even if you win, your legal fees may still be more than a default judgement for infringement.
Settling was simply the cheaper option for Pandora. At least in the short run - and since Pandora already pays half of their income to copyright holders, they're on life support already, and need to think solely in the short run right now.