We've talked a lot about the problems with the whole idea of the collection society structure in the past, especially the fact that most societies are constantly pushing for higher fees and trying to extract money for ridiculous things, even though they have a poor track record of actually redistributing the money they collect to the artists they supposedly represent. But of course, the people behind the tariff talk it up as a boon for small musicians:

"We are trying to establish tariffs for the remuneration of everybody involved in the music — everybody that has some rights to receive some remuneration," said Gilles McDougall of the Copyright Association of Canada, adding that the tarriff will likely result in a few million dollars a year for performers.

Re:Sound spokesman Matthew Fortier said the money collected will make a big difference to small operations.

"Sometimes you think of the larger artists or record labels, but most often it goes to small, struggling artists and record labels — we have thousands signed up with us," he said.

But as Howard Knopf points out, small artists are the last ones to get anything out of a scheme like this. Megastars and their labels can make money—but even that pales in comparison to the real beneficiaries of the tariff:

Sadly, very little of this money through gets to the artists that need it the most. This is because the copyright collective system tracks and rewards commercial success. Celine Dion, U2, Lady Gaga and their record and publishing companies do very well by the this system but emerging creators see very little of this money. The ones who really and consistently benefit the most are those who run the collectives, those who are consultants to the collectives, and the lawyers who punctually pursue new and higher Copyright Board tariffs using money raised from the previous tariffs and paid for ultimately by the Canadian public. Many if not most Copyright Board hearings generate millions of dollars in legal fees in order to generate average annual payments to creators that are typically much less than a junior lawyer’s hourly rate.

As with many such licensing schemes, the specifics of the fees seem almost completely arbitrary. Karaoke bars pay a rate based on nights-per-week, parades pay a different rate per-float, and weddings pay a third rate that for some insane reason gets doubled if the wedding involves dancing.

Some people will look at the fees themselves, which in any singular instance only generally add up to a few hundred dollars at most, and ask what the big deal is. But that's ignoring the big picture: Canada loves copyright tariffs, and each one serves to shift massive amounts of wealth around, often with little justification and no way of ensuring that the money is being properly distributed. And we just keep piling new tariffs on top of old ones, with no clear idea of how effective they are—except at funnelling money to the collection societies:

It’s true that most people do not tend to get married very often. And many weddings cost $25,000 or more. So, some may not be too concerned about the macro or even microeconomic aspects this particular tariff item. It won’t likely harm Canada’s economy overall or even the institution of marriage.

But these little tariffs add up. The little tariffs such as $0.29 for a blank CD or $5.16 per year for each K-12 student, or $253.45 for a wedding soon add up to about $500 million a year in Canada. One is tempted to say that "A half billion here, a half billion there, pretty soon, you're talking real money." Copyright Board tariffs siphon huge sums out of the educational system, the broadcasting and telecom industries, businesses of all kinds that use blank media for ordinary data storage and transfer purposes, etc.

Now we can add this one to the bloated list. And you can guarantee it won't be long before Re:Sound is back before the Copyright Board, pushing to raise the fees and expand the tariff to new classes of events and venues. Copyright tariffs rarely decrease—even when they absolutely should.

C3S is a collaborative effort to found a new and ground-breaking European collecting society for musical creators to register their works outside of traditional schemes, released under free licences for commercial exploitation. More than just for works published under Creative Commons Licences, C3S is open for other free licences as well.

After a concert, there is this thing called “doing the settlement”. This is where the artist or their representative meets with the promoter, goes over the financial outcome of the night in relation to their contract…and gets paid.

Sometimes the contract is for a percentage of the gross revenues, but more often for me, I get a guarantee and maybe a percentage of “net” if it was a positive number. The line item deductions that go into the calculation of net are things like sound & lights, staff, venue rental, advertising, insurance, etc. There tend to be many line items in the calculation of “net” and I can’t help but notice that one of them is ASCAP.

For example, at one concert I played last month the gross ticket sales for the night were $9336. Of the many expenses deducted that night, one of the items was $86 to ASCAP.

What is this? This is the nightly portion of a license fee that the hall pays to ASCAP for the permission to perform music by ASCAP artists in their venue. My compositions are registered with ASCAP, so I should get this money eventually, right?

Wrong.

I remembered that when I’ve played in the UK I listed all the songs I played on something called a PRS from and gave it to the venue. Six months or so later, I got a check for the percentage of the night’s revenues due to me according to the PRS formula for that venue.

Thinking that maybe instead of placing the burden on the venue, ASCAP puts it on the artist, I called ASCAP to see how I should go about claiming these concert royalties.

The customer service representative on the phone said there was nothing for me to claim. He informed me that ASCAP pays out performing royalties only to the 200 top-grossing concert tours, as determined by Pollstar. They also pay royalties for “Live symphonic and recital concerts”, whatever they are (he said I don’t qualify for those).

In other words....

Every day, thousands of venues are required to pay a percentage of their gross ticket sales to ASCAP who then gives that money to... let’s look here on Pollstar and find the highest-grossing concerts for 2011....U2, Taylor Swift, Kenny Chesney, Lady Gaga, Bon Jovi, etc.

Looking online, I found an ASCAP program that I didn’t know about. Perhaps in an attempt to compensate for this incredible distribution of wealth to the wealthy, ASCAP has something called the “ASCAP Plus Cash Awards”. What are these amazing “awards”?

“For over 50 years, these special awards have recognized writer members each year for substantial performance activity in media and venues that are not included in performance surveys, or whose works have unique prestige value. The program has also been an inspiration to members just starting out to persevere in advancing their music careers. More than 4,200 songwriter and composer members of ASCAP received Plus Awards in their January 2012 disbursement…”

You have to submit an application to ASCAP to qualify for consideration (which I just did). The gist of it, as far as I can tell, is that if you are the winner of this black-box calculation ASCAP will make a special award to you of a portion of your own money. Awesome! I’ll let you know if I “win”.

The complaint states that the violation it alleges is intentional since Gingrich is "sophisticated and knowledgeable" concerning copyright laws.

“My wife is a big fan,” Peterik said. “I’m becoming a fan of Newt Gingrich. He has a mind of his own. He’s not a talking head. Originally, I didn’t like him, but look at the competition. He’s looking better and better.”

Peterik is not a party to the suit that Sullivan filed in U.S. District Court in Chicago. They share the copyright, but tend to stay out of each other’s way when it comes to cracking down on infringers.

”I hate suits,” Peterik said. “I hate being in court. I avoid that meticulously. When I [heard about the lawsuit on the radio Monday} I said I’m not surprised, but I’m surprised.”

Let's be honest. The vast majority of LimeWire's users were interested in one thing and one thing only: downloading our music for free with the full knowledge that what they were doing was illegal. The harm done to the creative community when people are encouraged to steal our music is immeasurable. Disclaimer or no, when you offer a list of alternative P2P sites to LimeWire -- and include more of the serial offenders -- PC Magazine is slyly encouraging people to steal more music and place at risk the tens of thousands of music industry jobs -- including singers, songwriters, musicians and the technical professionals who put it all together. Even worse is offering a direct link to a "resurrected" Limewire as follows: "I went ahead and downloaded LimeWire Pirate Edition for *ahem* research purposes, and can report that it appears to be working very smoothly. In the event that you, yourself, would like to do some research, you can download the client here (direct link)."

Curley indicated that the clearinghouse's biggest moneymaking opportunity is likely to be the licensing of copyright-protected content to mobile phones and an array of computer tablets such as Apple Inc.'s iPad and emerging competitors.

ASCAP cut payments to some members of it's ASCAPlus program by 20-30%. "Unfortunately, because of the fiscal climate, less money was available this year for the award program," ASCAP said in a letter to those receiving checks.

"Music is performed more often, in more places, in more ways by more businesses than ever before. That expanded music use, combined with dramatic ASCAP Membership growth, market share increases and effective strategic management have led to stunning revenue and distribution growth for 2009."

"writer members of any genre whose performances are primarily in venues not surveyed; and/or writer members whose catalogs have prestige value for which they would not otherwise be compensated."

The fact that the statute defines performance in the audio-visual context as "show[ing]" the work or making it "audible" reinforces the conclusion that "to perform" a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work....

First, the district court did not adequately support the reasonableness of its method for measuring the value of the Internet Companies' music use. Second, the district court did not adequately support the reasonableness of the 2.5% royalty rate applied to the value of the Internet Companies' music use.

The district court's MUAF accounts for the value of Yahoo!'s music use by using the amount of time that music is streamed. Streaming time, however, neither drives nor correlates with Yahoo!'s advertising revenue. The record evidence makes plain that Yahoo!'s advertising revenue model more accurately correlates with the number of times a particular page is accessed by users than to the duration of streaming time.

The music community we represent believes it is vital that any Internet policy initiative permit and encourage ISPs and other intermediaries to take measures to deter unlawful activity such as copyright infringement and child pornography.

Anti-copyright crusaders are currently engaged in a publicity campaign to discredit ASCAP's efforts to defend the copyrights of our professional songwriter and composer members.

The copyleft movement has encouraged a culture of disrespect for copyright by defending corporate and individual infringers; undermining every effort to provide more effective protection, no matter how limited or reasonable; promoting a reduction in copyright protection; supporting the dismantling of our rights through the courts; and questioning the basic premise that the tidal wave of infringements and unlicensed uses online hurts creators.

I am well aware of those "copyleft" mouthpieces who take a highly critical view of ASCAP's efforts to protect our members' rights. That will not change ASCAP's commitment to doing so. ASCAP exists for one purpose -- fair payment to music creators for the use of their music by businesses and others who seek to attract viewers and customers. ASCAP has long welcomed and licensed new technological means of performing its members works, seeking only reasonable fees for those performances. Our members have every right to give their music away for free if they choose, but they should not be forced to do so.

What I find most fascinating is that those who purport to support a climate of free culture work so hard to silence opposing points of view. They will not silence me.

So here's my challenge, ASCAP President Paul Williams: Let's address our differences the way decent souls do. In a debate. I'm a big fan of yours, and If you'll grant me the permission, I'd even be willing to sing one of your songs (or not) if you'll accept my challenge of a debate. We could ask the New York Public Library to host the event. I am willing to do whatever I can to accommodate your schedule.

Let's meet and address these perceived differences with honesty and good faith. No doubt we have disagreements (for instance, I love rainy days, and Mondays rarely get me down). But on the issues that your organization and mine care about, there should be no difference worthy of an attack.

• Creative Commons responded in an interview with Zeropaid, noting how misguided and flat-out wrong it was for ASCAP to suggest that Creative Commons somehow undermines artists' rights, when it's always done exactly the opposite:

  "It's very sad that ASCAP is falsely claiming that Creative Commons works to undermine copyright" Steuer told ZeroPaid. He explained, "Creative Commons licenses are copyright licenses -- plain and simple, without copyright, these tools don't even work. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses."
  
  It does make sense because Creative Commons is voluntary. The creator can choose whether or not to use Creative Commons or not.
  
  "Many tens of thousands of musicians, including acts like Nine Inch Nails, the Beastie Boys, David Byrne, Radiohead, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren't looking to stop making money from their music. In fact," Steuer added, "many of the artists who use CC licenses are also members of collecting societies, including ASCAP. Incidentally, that's how we first heard about this email campaign -- many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons."




• The EFF responded in an interview with CreateDigitalMusic.com, where it noted, amusingly, that the EFF's long-standing proposal on how to "fix" copyright law, actually is to set up an ASCAP-like system for digital music (this is something that I've long disagree with EFF about, by the way). So it seems pretty silly to claim that EFF is somehow trying to undermine ASCAP. It just takes issue when ASCAP takes a ridiculous stance like claiming that ringtones require a separate "public performance" license -- a position that is clearly at odds with the law.

  "They imply in that letter that the EFF don't want artists to get paid for their work," says Rebecca Jeschke, EFF spokesperson. "For years, we've had a proposal for Voluntary Collective Licensing," she says, a scheme by which users of file sharing services could contribute to funds for artists. She says the EFF has been working on the issue since 2003. "We're interested in making sure that there's a balance, that copyright respects the rights of the creators but also innovators and speakers, and that [the doctrine of] fair use rights [a provision of US Copyright Law] are respected."




• Finally, Public Knowledge responded on its own website, in a response that is similar to the EFF's, pointing out that it clearly supports getting artists' paid, has no interest in undermining such rights, and has advocated models similar to ASCAP's:

  Of course, anybody who has spent more than 5 minutes on our website or talking to our staff knows that these things are not true - Public Knowledge advocates for balanced copyright and an open Internet that empowers creators and the public.  What we oppose are overreaching policies proposed by large corporate copyright holders that punish lawful users of technology and copyrighted works.  We have taken artist-centric positions on a number of critical copyright issues which have put us at odds with some of our copyright reform colleagues.  For example, PK has supported a level-playing field in the payment of performance royalties and called for (pdf) copyright holders to sue large scale peer-to-peer infringers directly, as opposed to holding innovators liable for the infringement of others.  We have also advocated for changes to the law that would make it easier for online music services to license content from music publishers, leading to greater legal use of music and greater compensation for artists.  Finally, and oddly enough, we have emphasized the central role that performance rights organizations like ASCAP could play in a digital world and have praised them for their ability to keep accurate records of who owns what copyright.  So frankly, we're more puzzled by this attack than anything.

But there is a growing enemy that does not have respect for copyright at all. And this is a very different enemy.

When the U.S. Government Accountability Office released a study in April on the economic impact of intellectual property piracy, the Electronic Frontier Foundation, Public Knowledge, the Consumer Electronics Assn. and the Computer and Communications Industry Assn. took out a full-page ad in newspapers around Washington, D.C. "Content industry piracy claims are bogus," the ad read. "For years, claims of huge losses from digital piracy have been used to justify harsh restrictions on innovators and consumers . . . They have harmed our competitiveness, hampered legitimate businesses and impeded innovation."

Who are these four groups and why would they take out full-page ads to suggest the ridiculous--that theft of intellectual property isn't really bad? The answer is, this is the new face of our enemy.

These four groups have an extremist, radical anti-copyright agenda. They all have an economic interest in the theft of our music or paying little to nothing for it. [And] they are intellectually dishonest in how they approach these fights.

I have put together a top 10 list of the positions taken by these groups that I will define as their extremist, radical anti-copyright agenda.

No. 10: They support changing the law to reduce damages for copyright infringement.

No. 9: They support the elimination of statutory damages for secondary copyright infringement.

No. 8: They favor rolling back copyright extension; in some cases, radically.

No. 7: They favor the elimination of the songwriter and publisher rights for server, cache and buffer copies.

No. 6: They oppose efforts to obtain the identities of individuals engaged in massive copyright infringement.

No. 5: They support extreme versions of orphan works legislation.

No. 4: They have filed legal briefs supporting anti-copyright positions of Grokster, Napster, LimeWire, Cablevision, Google, YouTube and Verizon.

No. 3: They oppose graduated-response protection for copyright owners.

No. 2: They oppose treaties that support copyright enforcement like the Anti-Counterfeiting Trade Agreement.

No. 1: They actually argue that illegal peer-to-peer file-sharing traffic helps the economy and doesn't hurt songwriters.

#FUCKASCAP #iQuit ... this is the 1st public anncmnt of my resignation from ASCAP. this is bullshit.

I think ASCAP should be ashamed of itself, and I am presently ashamed to be a card-carrying member of ASCAP. The language in that fundraising email is fear-based and reactionary. Furthermore, it is misleading and disingenuous. ASCAP portrays itself as a grassroots organization and calls attention to the "deep pockets" of Creative Commons, but in fact it is *ASCAP*, not Creative Commons, that's siding with corporate interests and "deep pockets."

I'm the agent for my father, who was a studio musician, performer, music & songwriter from the late 50's until the late 80's, when he retired.

We've been fighting with ASCAP for 6 years to get the money they received for selling the rights to several of his early recordings to a overseas company.

He also handed out free "right to record" statements at the end of each live show back when the recording industry was pushing the "taping is stealing" propaganda.

he's totally against anything that would further criminalize fair use, and has asked me to help him write up a appropriately scathing letter to ASCAP on the subject.

I got this letter yesterday; and all I could think was even if it was true, it wouldn't affect me -- seeing as how several songs I co-wrote have been airing regularly for over 2 years on TV (kid's show stuff, so I do mean regularly), yet I haven't seen a penny through ASCAP. I think they should worry about their own mission statement and get creators actually PAID.

And if I was actually getting my royalties, I would still think the letter was ridiculous and fear-mongering. But what else are they going to do -- let everyone know there's an issue that people need to thoughtfully and sensibly make up their own minds on? Of course not.

I'm a card-carrying member of ASCAP as well. At least, i was until i got their message. I'm disaffiliating myself as soon as i can figure out how. This is ingenuous at best, and an insult to anyone with even the remotest modicum of understanding of modern digital content distribution. It shows only how antiquated this whole entire game is.

ASCAP should change their moniker to ASSHAT: American Society of Socially-Harmful Attorneys and Treasurers.

I'm also a member of ASCAP, and I was digusted by the tone of the letter. I hold Creative Commons and the EFF in high regard, and painting them as some kind of enemy of musicians is ridiculous. As a musician, I don't feel like a small-time individual has many options; I have a pretty broad idea of fair use, myself, but if Kanye sampled my song and made millions off of it then damn right I would want a piece. Without the resources to hire a lawyer, who else but ASCAP could help me get my share? Yet at the same time, I don't completely trust that they're really always protecting my best interests; and in this case I believe they have amply demonstrated how clumsy and old-fashioned their philosophy is. What a crummy situation.

I'm a longtime member of both ASCAP and EFF, and I find the whole situation painful.

ASCAP's broadcast and international royalty collections are poor (former is a lottery, latter is unenthusiastic) but their domestic performance royalties are good and appropriately scaled. I appreciate that, and also appreciate that their staff is actually fairly small.

That said, I have to say I'm always disappointed by ASCAP's rough behavior (even if they're not nearly as awful as the RIAA). Maybe it's a negotiating stance, but it just tastes bad....

....

I attended one of the first ASCAP committee meetings about internet music use back in 1995 (where I met folks such as Laurie Spiegel and Morton Subotnik for the first time). I suspect that the composers in attendance 15 years ago are disappointed if not disgusted by the bullying position ASCAP has been taking (revealed as much in the "Daily Briefing" emails they send out as in the recent letter).

So I hope ASCAP will rethink its position and arrive at a truly creative solution that acknowledges how culture (to which they're nominally allied) functions as opposed to a hard-line interpretation of the law. This is no easy task, as Congress has been doing the bidding of the real deep pockets in the past few decades.

Dear Mr. Williams -

I'm not interested in supporting any initiative based on this sort of information-free screed. I've personally relied on creative-commons licensed materials to use in my own work, as well as a license which provides a convenient way to both promote and control the dissemination of my own work.

I also have a firm respect for the EFF and their efforts in protecting the interests of consumers and small business where they pertain to new media channels, the internet, or IP.

As a musician, and as an entrepreneur making my living selling equipment to studios and musicians, I obviously have a great deal to lose if the putative forces of "copyleft" somehow succeed in preventing music being paid for. However, I cannot condone, or fail to decry the practice of vilifying institutions like Creative Commons, which poses absolutely no conceivable illegitimate threat to ASCAP or its members.

If someone wants to license their materials under a CC license - that's their right. If someone wants to use CC-licensed material, and not pay ASCAP for some other material - that's also their right. Please grow up and get a grip.

I am an ASCAP member. I hate this fundraising letter and I am telling them so.

You can tell them too, right here
http://www.ascap.com/legislation/legislation-form.html

Just FYI though regarding the ASCAP-is-corporate-assholes talk, I am not a rich rockstar but I make money licensing music for film, tv, and commercials. I am happy to give music away free to the public, but if some corporation is going to use it to sell crap, they should pay me. Not just the up front fee, but royalties for each time they run the ad/show/film. ASCAP makes them do that so they don't get away with shortchanging artists like me. Thats one thing that ASCAP does, and thats why I am a member. ASCAP is not just another corporation. They are a player in a complex position between artists and corporations. They are not the bad guys, they are just not as good as they should be these days. Next time we vote on the ASCAP board members I will grill the nominees about this.

Across New England, church coffeehouses, library cafes, and eateries that pass the hat to pay local musicians or open their doors to casual jam sessions are experiencing a crackdown by performance rights organizations, or PROs, which collect royalties for songwriters.

"I am 100 percent in compliance," Hopper said. "I'm not charging cover at the door. I'm not paying the bands, and they are just playing songs they wrote. They essentially said to me, 'We don't care. We have this low-end licensing fee you must have because there is a chance your band might play a cover song.' "

ASCAP was solely responsible for naming Bruce Springsteen as a plaintiff in the lawsuit. Bruce Springsteen had no knowledge of this lawsuit, was not asked if he would participate as a named plaintiff, and would not have agreed to do so if he had been asked. Upon learning of this lawsuit this morning, Bruce Springsteen's representatives demanded the immediate removal of his name from the lawsuit.

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

"Basically, we don't know," said Dave Ascher, the SESAC Music Licensing Consultant who sent the letters. "To make a long story short, there's no way, logistically, for us to know whether on a day-to-day basis they're playing SESAC music."

"I'm sorry to hear that, but what I would like to tell him is that he needs to write a hit song," BMI's Bailey said.