Techdirt. Stories about "emi"

Grooveshark Loses Latest Round In Court, In A Ruling That Could Gut The DMCA's Safe Harbors

Leigh Beadon — Tue, 23 Apr 2013 13:24:36 PDT

The last big news in the ongoing fight between Universal Music Group and Grooveshark (and its parent company Escape Media) came back in July, when a New York court rejected UMG's argument that the DMCA's safe harbors didn't apply to pre-1972 sound recordings, because, technically, those recordings are not covered by federal copyright law. This was in keeping with the ruling in the fight between EMI and MP3Tunes, and seemed most consistent with the intent of DMCA safe harbors.

Naturally, UMG appealed, and in doing so made some compelling arguments about the wording of the law. The appellate court agreed, and has now issued pretty much the opposite decision: pre-1972 sound recordings are not covered by the DMCA (pdf and embedded below) and thus Grooveshark has no DMCA safe harbors for such songs.

There are a few different parts to the ruling, but the core argument is straightforward: section 301(c) of the Copyright Act explicitly states that no "rights or remedies" under common law copyright on pre-1972 recordings shall be "annulled or limited" until 2067, and it's pretty hard to argue that the DMCA doesn't do that:

Initially, it is clear to us that the DMCA, if interpreted in the manner favored by defendant, would directly violate section 301(c) of the Copyright Act. Had the DMCA never been enacted, there would be no question that UMG could sue defendant in New York state courts to enforce its copyright in the pre-1972 recordings, as soon as it learned that one of the recordings had been posted on Grooveshark. However, were the DMCA to apply as defendant believes, that right to immediately commence an action would be eliminated. Indeed, the only remedy available to UMG would be service of a takedown notice on defendant. This is, at best, a limitation on UMG’s rights, and an implicit modification of the plain language of section 301(c). The word “limit” in 301(c) is unqualified, so defendant’s argument that the DMCA does not contradict that section because UMG still retains the right to exploit its copyrights, to license them and to create derivative works, is without merit. Any material limitation, especially the elimination of the right to assert a common-law infringement claim, is violative of section 301(c) of the Copyright Act.

For defendant to prevail, we would have to conclude that Congress intended to modify section 301(c) when it enacted the DMCA. However, applying the rules of construction set forth above, there is no reason to conclude that Congress recognized a limitation on common-law copyrights posed by the DMCA but intended to implicitly dilute section 301(c) nonetheless.

...

Under such circumstances, it would be far more appropriate for Congress, if necessary, to amend the DMCA to clarify its intent, than for this Court to do so by fiat.

Take note of that last bit, because this ruling has made it more true than ever. And that's where the problems come in. It seems pretty clear that there is some sloppy drafting in how the DMCA is written (which isn't a surprise), in that what you have is wording that can be read this way, even though it clearly goes against the intent and purpose of the DMCA. If the DMCA's safe harbors don't apply to pre-1972 recordings, then the DMCA's safe harbors no longer apply at all to any service that includes music. That can't be what Congress intended, even if the wording of the law can be read that way.

Thus, if you go strictly by the wording, while ignoring the intent, the logic of the decision is sound, but the implications are disturbing: as Grooveshark pointed out in their defense, this interpretation would gut the DMCA. One of the key purposes of safe harbors was to prevent online services from needing to proactively scan for infringing works, since that would drastically and unfairly limit their growth, and we wouldn't have things like YouTube today if that were the case. But if pre-1972 recordings (which is plenty of material) are not included, then user-generated content sites do have to scan everything. And while it might be somewhat easier to identify pre-1972 recordings than it is to identify infringing uploads, it would still be insanely prohibitive — not to mention the massive loss to our culture from having a huge chunk of music history mostly vanish from the internet.

It's a little unclear just how far-reaching this ruling will be (it's at the state level, and it is in itself explicitly contradicting the earlier MP3Tunes ruling, which it declares to be "wrongly decided") but the potential implications are huge. Exempting all pre-1972 recordings from the DMCA would impact all corners of the internet in a bad, bad way. The only optimistic thought is that perhaps it would force congress to revisit the law, and we could finally push for a Digital Millennium Copyright Act that actually works in the digital millennium.

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ReDigi Loses: You Can't Resell Your MP3s (Unless You Sell Your Whole Hard Drive)

Mike Masnick — Mon, 1 Apr 2013 12:01:22 PDT

This is hardly a surprise at all. In fact, we expected this kind of ruling all along. ReDigi, the company that was trying to build a "market" around "used MP3s" has lost at the district court. As you may recall, ReDigi tried to set up a system that monitors your own files, so that if you "sell" a used MP3, you have to make sure it's been removed from your own system. As you might imagine, that system is not foolproof, but some effort has been made (and it's only allowed for reselling MP3s ReDigi can prove you've purchased, such as via iTunes, and not for files just ripped from CDs). While I fully expected ReDigi to lose, the ruling is still fairly distressing in just how badly it distorts other parts of the law, which may harm other, even more reasonable uses. Hopefully, ReDigi will appeal and fight back against the more extreme interpretation from the district court here.

First, the court looks into the question of whether or not a transfer of a copyrighted file, where only one file remains at the end, still violates the "reproduction" right. That is, if Bob transfers a file to Alice, and Bob's copy of the file is immediately deleted, is that still a reproduction under the Copyright Act? The court says yes:

...courts have not previously addressed whether the unauthorized transfer of a digital music file over the Internet – where only one file exists before and after the transfer – constitutes reproduction within the meaning of the Copyright Act. The Court holds that it does.

The Copyright Act provides that a copyright owner has the exclusive right “to reproduce the copyrighted work in . . . phonorecords.” Copyrighted works are defined to include, inter alia, “sound recordings,” which are “works that result from the fixation of a series of musical, spoken, or other sounds.” Such works are distinguished from their material embodiments. These include phonorecords, which are the “material objects in which sounds . . . are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Thus, the plain text of the Copyright Act makes clear that reproduction occurs when a copyrighted work is fixed in a new material object.

Of course, that same bit of the Copyright Act also makes clear that "copying" does not apply to purely digital files, but the court tap dances around that argument. Basically, it says whether or not there are more in the world is meaningless. All that matters is if a copy was made, even if the original was destroyed.

Simply put, it is the creation of a new material object and not an additional material object that defines the reproduction right. The dictionary defines “reproduction” to mean, inter alia, “to produce again” or “to cause to exist again or anew.” See Merriam-Webster Collegiate Edition 994 (10th ed. 1998) (emphasis added). Significantly, it is not defined as “to produce again while the original exists.” Thus, the right “to reproduce the copyrighted work in . . . phonorecords” is implicated whenever a sound recording is fixed in a new material object, regardless of whether the sound recording remains fixed in the original material object.

Basically, under this interpretation, you can never "transfer" a digital file. You can only make a reproduction under copyright law. And, yes, computers transfer files by making copies of them, but it seems a bit ridiculous that the whole concept of a transfer can be wiped out because of that. In fact, by this interpretation, even streaming (which still involves all the data being temporarily copied to your local computer) would count as reproduction. ReDigi pointed this out, noting the possibility of merely cleaning up your own hard drive being considered infringing, but the court buys Capitol Records's (EMI) argument that such uses are protected under other theories.

Moving on to the question of distribution, ReDigi doesn't deny that it's distributing files, but says that it's protected by fair use and (more importantly), first sale. Again, however, the court doesn't buy it. Part of the issue may be that ReDigi "abandoned" an argument it made earlier that merely transferring a file to a cloud locker for personal use is fair use, so it's left arguing that other aspects of its service are covered by fair use, but that's much more difficult under the basic four factors test. On this part, it's not that surprising that ReDigi failed to convince the court, as I'm not sure I see the fair use argument either.

The first sale part is where it gets more troubling. Effectively, the court wipes out first sale for digital goods, arguing that because (as above) each transfer is not really a "transfer" but a "copy," first sale doesn't apply. That is, first sale only applies to the initial "copy" "made under this title." But, the court argues, because the sale involves making a new copy, it's not covered by first sale.

In addition, the first sale doctrine does not protect ReDigi’s distribution of Capitol’s copyrighted works. This is because, as an unlawful reproduction, a digital music file sold on ReDigi is not “lawfully made under this title.” ... Moreover, the statute protects only distribution by “the owner of a particular copy or phonorecord . . . of that copy or phonorecord.” Here, a ReDigi user owns the phonorecord that was created when she purchased and downloaded a song from iTunes to her hard disk. But to sell that song on ReDigi, she must produce a new phonorecord on the ReDigi server. Because it is therefore impossible for the user to sell her “particular” phonorecord on ReDigi, the first sale statute cannot provide a defense. Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce. Here, ReDigi is not distributing such material items; rather, it is distributing reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives. The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.

That seems silly. Selling a legally purchased MP3 is absolutely nothing like selling a cassette recording of a vinyl record. When ReDigi points out that, under this interpretation, digital files have no first sale rights, the court hits back that this is not true. After all, it argues, you can still sell your hard drive with the original file on it. No, seriously. That's the court's response.

Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. While this limitation clearly presents obstacles to resale that are different from, and perhaps even more onerous than, those involved in the resale of CDs and cassettes, the limitation is hardly absurd – the first sale doctrine was enacted in a world where the ease and speed of data transfer could not have been imagined.

The court argues that if such an interpretation is ridiculous (though it argues it is not) then it's up to Congress to fix it.

With that out of the way, the court says that ReDigi is guilty of direct infringement, contributory infringement ("the court finally concludes that ReDigi's service is not capable of substantial noninfringing uses"), and vicarious infringement. Basically, a triple play and ReDigi is completely out of the inning. While I'm still not convinced about the fair use argument, the court basically killing off first sale for digital goods is a pretty big problem, and hopefully higher courts (or, dare we dream, Congress?) will fix such an obviously nutty ruling.

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Old EMI Email Shows They Knew That Giving Away Songs For Free Leads To More Sales

Mike Masnick — Tue, 22 Jan 2013 08:27:34 PST

We already wrote about the recent filing in the EMI v. MP3Tunes case, in which Michael Robertson shows that (contrary to EMI's statements to the court) EMI regularly promoted its music by giving out free MP3s. However, I wanted to do a separate post looking at one specific email highlighted in the filing. It shows an email from 2008 from Stephen Gullberg, an employee of EMI Publishing, talking about marketing plans involving giving away free MP3 downloads. I've bolded the parts that struck me as particularly interesting. Gullberg is emailing with a counterpart at EMI:

Free Promotional MP3 of one song to the public for free download from Peter Moréns album (as do most indie labels). They would offer "Social Competence" for free download on touchandgorecords.com, Peter and Touch and Go's Myspace pages, plus encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site. We are being told that historically the track which is offered for free like this is usually still the top selling track in digital retail. They would like to offer this promotional MP3 download for nine months. After that initially period the promotional partners will replace the MP3 download with a stream for the duration of the license of the album including offering a stream of the song on their website and on their Myspace page and Peter's Myspace page, or until they decide to ask these partners to remove the stream.

The label has given us a further explanation of why they pursue this strategy. One promotional MP3 per album is the best way they can virally promote the album which will increase sales and thus revenue on the compositional side as well as the master recording side. This promotional technique has proven to be so effective, that virtually every free track they have issued from an album has maintained itself as the top selling track from the album. It also enables them to offer something from the album to the myriad of sites, blogs, podcasts out there that would be tempted to give away unauthorized materials, perhaps the entire album, if they do not have the option to feature a track that they offer to them. This control mechanism is vital to their methods of slowing piracy of albums.

And yet, all this time, the RIAA keeps insisting that free music is a problem? Even as employees at the labels knew years ago that free was "so effective" as a promotional technique that it helped sell the same track much more.

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Web Blocking's Slippery Slope: It's Never 'Just' One Site

Glyn Moody — Wed, 9 Jan 2013 10:43:45 PST

Even against a background of repeated attempts to censor the Net, it's still possible to become a little complacent about some of the actions being taken by the copyright industries. For example, many people probably feel that blocking a site like The Pirate Bay isn't really a problem because, after all, it's just one site, right?

A post on TorrentFreak explains why that's a dangerous attitude:

Copyright activists often warn that a ruling in one case has the potential to be leveraged elsewhere and the wedge can become thicker frighteningly quickly if issues aren't dealt with early on. It seems that a case currently underway in Ireland involving The Pirate Bay is proving that assessment correct.

At the moment customers of the Irish ISP Eircom cannot access The Pirate Bay since an uncontested 2009 High Court ruling orders the ISP to block the site. But that's just one ISP, some people will say, and it's easy to switch to another. Nice try.

That's because the recording labels want the Web block to be extended to other ISPs. Again, some might say: well, it's still just one site. But here's where things start to get serious. It's not just about one site any more: The plaintiffs (technically EMI, Ireland) have told the court that they are looking to achieve more than just a blockade of the world's biggest torrent site. In fact, they have a list of 260 other "objectionable" websites they have identified that they would also like blocked if this attack on The Pirate Bay is a success.

What started out with Eircom agreeing to have The Pirate Bay blocked could now potentially lead to a few other Irish ISPs having to follow suit. In a worst case scenario that could play out to all ISPs having to block 260 other sites on the music industry's hit-list. Which sites? Only they know.
And of course, if the industry manages to get the court to agree to 260 sites being blocked, you can be sure that it will be back with another few hundred, or a few thousand, at some point in the future. Because once the court rules that Web blocking is acceptable, it's easier to go back to ask for more censorship, citing that judgement. That's why it's important to remember it's never 'just' one Web block.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Major Labels Back To Going After Vimeo For Its Lipdubs

Mike Masnick — Tue, 8 Jan 2013 08:59:39 PST

You may recall that, back in 2009, a bunch of the major labels filed a copyright infringement lawsuit against online video site Vimeo, paying particular attention to the fact that the site had popularized "lipdubs" in large part due to this quite popular lipdub by Vimeo's own staff of the song Flagpole Sitta by Harvey Danger.

Lip Dub - Flagpole Sitta by Harvey Danger from amandalynferri on Vimeo.

While EMI insisted that that particular video and others like it were doing incalculable harm to itself and the musicians it represented, the lead singer from Harvey Danger actually noted that the video made him "incredibly happy" as it helped increase the popularity of the song.

Either way, that lawsuit sat on the shelf for a while, as the judge suggested that it ought to await the outcome of the somewhat similar Viacom/YouTube lawsuit. After that lawsuit got sent back to the district court by the appeals court, the major labels are apparently getting restless and have sought to revive the case against Vimeo, by seeking a summary judgment in their favor.

The case is a bit more complex than the YouTube case, which may spell trouble for Vimeo (and owners IAC), but that doesn't mean that the labels are staying away from a whole bunch of absolutely preposterous arguments. The best thing that the labels have going for them in their argument is the fact that Vimeo employees posted videos that had infringing content. The DMCA safe harbors protect a website from user behavior, but not their own. So, legally, their argument seems a bit stronger on that front, but culturally, it still seems like a dumb argument, as highlighted by the singer's comments above. Most people don't think lipdubs should be illegal, because that seems silly. Lipdubs are about people celebrating and promoting the music they love in creative ways.

Really, that's the crux of this lawsuit. While Vimeo may be in legal trouble, it really highlights the basic cultural divide at issue here. People who put together lipdubs spent a ton of time and effort to creatively enhance the music they love and share it with the world in a cool manner, which does not replace the music, but tends to advertise it. For those unfamiliar with the basics of copyright, saying lipdubs are illegal just feels wrong, even if there may be some legal backing to it.

Making things perhaps somewhat trickier for Vimeo is the fact that it does somewhat aggressively monitor the content on its site for other issues, and doesn't allow a variety of other types of videos. The labels use this to imply that it is actively ignoring music copyright while blocking all sorts of other content:

Except for music, Vimeo strictly controls, monitors, and curates (in its words) the audiovisual works it copies, performs, and distributes. It prohibits – and uses its personnel and tools to review, monitor, and delete – all sorts of videos, including television programs, movies, and movie trailers, as well as “gameplay videos,” “commercial” videos (such as product promotions or real estate tours), “sexually explicit” videos, and “fan vids,” among others.... It enforces its discretionary and subjective guidelines to eliminate content that is not “Vimeoesque.”... All in order to mold its website and control its image.... Despite its pervasive involvement in and control of the content on its website, Vimeo does nothing to limit the infringing use of music on its website.

That may sound damning, but it's not as strong as it sounds. Determining whether or not a video includes infringing music is not as simple as the paragraph makes it sound. Vimeo has no way of knowing whether or not the video maker properly licensed the song in question in most cases. The other things it monitors for are much easier for it to determine. This is a major issue that supporters of copyright law often ignore.

The labels' attack on lipdubs is really kind of ridiculous when you think about it:

One of the early “creations” by Vimeo’s founder was a video format in which he “lip synched” to a commercial, copyrighted recording, synchronized the recording into the video during editing, and uploaded the video, making it available to every Vimeo user.... He named this “a lip dub,” and it was promoted as the “signature” Vimeo video genre, something that “put us [Vimeo] on the map.” .... As Vimeo and its users know, these popular lip dub videos, by definition, copy and incorporate copyrighted music without consent or license. ... (If Vimeo “suddenly started to ban videos with copyrighted music, like lipdubs, then I would be pissed but I would have to realize it’s their final decision.”) That also is apparent from Vimeo’s instructions on its home page on how to create lip dubs.... (“Like a music video. Shoot yourself mouthing along to a song then synch it with a high quality copy of the song in an editing program.”).

Lip dubs were heavily promoted. Vimeo provided a “Lip Dub Stars” channel, labeling it a channel “we like” and securing commercial sponsorship for it.... Lip dubs were featured as a “Vimeo Obsession” on Vimeo’s home page.... “Lip dub” became one of the top seven key words that drew visitors to Vimeo ..., and appeared (in several variants) in an internal chart of top “searches per day” on the Vimeo Website

Of course, one could make an argument that many lipdubs could be considered fair use, as being transformative. But, the labels assume that, by default, they all must be infringing.

Furthermore, among the more dubious arguments made by the labels is claiming that Vimeo's decision to not use a tool to filter out copyright infringement is the equivalent of "willful blindness." This is wrong. The law does not say that sites need to make use of filters and other tools to find possibly infringing works -- in part because a tool cannot properly assess if a work is infringing. They also make the argument that because Vimeo put "lip dub" in meta tags it's proof that they were promoting infringement. That seems very weak for a number of reasons, not the least of which is that search engines haven't used meta tags in ages. Also, the labels argue that because Vimeo offered licensable songs for sale to videomakers it knew that it was committing and encouraging infringement. This seems particularly bizarre. It's attacking Vimeo for actually doing the right thing and helping its users license music. But, just because they do that, it doesn't give them direct knowledge of whether or not users licensed music elsewhere. Oh yeah, the labels also -- ridiculously -- claim that pre-1972 songs are not subject to the DMCA, despite multiple courts rejecting this argument.

All that said, it still seems likely that Vimeo may have an uphill battle here. The fact that employees uploaded infringing works is going to make the case difficult, even if there are reasonable arguments for why they did it. The filing also has a bunch of quotes suggesting general awareness of infringement on the site, but "general" awareness is not enough to lose DMCA safe harbors. You need to be aware of specific infringement, and it's not entirely clear that that's true. There's one example of someone saying they weren't sure if something was licensed and offering to make a copy without music just to be safe, but that's not the same as knowing that the effort is definitely infringing. The other part that might come back to bite Vimeo is the lack of having a "repeat offender" policy for its DMCA takedowns. This is something that has tripped up others as well. The law requires such a policy, but it's unclear if Vimeo actually had one until about the time it was sued.

Still, it really does seem like this is yet another example of the labels fighting against how people enjoy culture today -- and how they help spread it. It's really shameful to see them on the attack, rather than figuring out ways to support it.

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Big Name Musicians Threaten To Strike Over Parlophone Sell-Off After Discovering They're 'Just Assets'

Mike Masnick — Tue, 2 Oct 2012 05:13:38 PDT

An interesting story over at Hypebot highlights how some "big name" musicians are threatening to "strike" and withhold new albums if they're not happy with how the sale of the label Parlophone goes down. As you may recall, with Universal Music getting approval to buy EMI, it has to sell off Parlophone, the iconic label that's home to a bunch of well known artists. And while Hypebot's title says that they're striking over the sale of EMI to UMG, that doesn't appear to be the case at all. The concern has to do solely with the sale of Parlophone:

Many of the label’s artists are unhappy being viewed merely as “assets” or “pawns” in a game that is set to be in the best interest for the powers that be. To protest this move, the rockers of Blur have joined forces with a number of Parlophone label-mates to collectively lobby potential bidders for the company and calling on them to place the interests of artists first, as reported by The Independent. If the musicians don’t find the new Parlophone owners to their liking, they could withhold all future releases and effectively go on "strike".

"Artists are the only people currently being left out of the conversation, which is unfortunate,” said Blur drummer Dave Rowntree to The Independent. “If the staff at the label are unhappy with the new arrangements they are free to leave, but the artists are not."

I'm sympathetic to the artists here, because it almost certainly does suck for them... but I'm not quite sure what they're expecting here. For the labels, they are an asset and have always been just that. That's why they signed a contract in the first place. If they didn't like it, they shouldn't have signed a contract. Threatening to void the contract because they don't like some completely unrelated piece of business doesn't seem like a particularly reasonable response.

To be honest, it seems like in selling off Parlophone, the label might actually wind up somewhere more progressive and open to a future that embraces what technology allows, rather than holds it back. Perhaps the artists shouldn't make a big stink until they see what results. But, either way, if this was such a big concern, why didn't they write into their contracts that the deals were null & void should the label be sold?

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EMI: Legitimately Afraid That Aliens Might Listen To The Beatles Without A License

Mike Masnick — Thu, 27 Sep 2012 12:11:03 PDT

Ah, life imitating art (or art accidentally imitating life). Earlier this year, we had Rob Reid post an excerpt and discuss his new novel, Year Zero, concerning aliens listening to Earth music for free, without a license... and then realizing that they've been infringing our copyrights for years, and owe the record labels more money than exists in the galaxy. Funny story, right?

Except... as Joe Betsill points out, apparently at least EMI really was afraid that aliens might listen to music without a license. In the Wikipedia entry for the Beatles' famous song, "Here Comes the Sun" it notes the following bit of trivia:

Astronomer and science popularizer Carl Sagan had wanted the song to be included on the Voyager Golden Record, copies of which were attached to both spacecraft of the Voyager program to provide any entity that recovered them a representative sample of human civilization. Although The Beatles favoured the idea, EMI refused to release the rights and when the probes were launched in 1977 the song was not included.

Of course, just a few weeks ago, we also discussed Sagan and the Voyager Golden Record, in noting how the world is changing in that we no longer have to wait for the modern Carl Sagans to decide what gets sent into space any more. So, perhaps the story in Year Zero isn't so far-fetched after all...

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EMI Universal Deal Cleared, Giving One Company Veto Rights On Pretty Much Any New Music Service

Mike Masnick — Fri, 21 Sep 2012 11:28:48 PDT

This isn't a huge surprise, but EU and US regulators both approved Universal Music's deal to buy EMI today. Under the terms from the EU, they will have to sell off some EMI assets, including the iconic Parlophone label. There is a part of me that thinks that the complaints against this deal are a bit overblown, seeing as it's about linking up two dinosaurs who've failed to adapt -- and bringing them together won't fix any of the major problems those two labels face. But there are some very real concerns about how this could impact innovation online. For better or for worse, setting up digital music services today requires doing deals with the major labels. If you're just doing webcasting (i.e., broadcast) there are agreed upon -- but insanely high -- rates you can use (more on that later today). However, if you're doing anything interactive or offering digital downloads, then you have to cut deals.

A story earlier this week at the Huffington Post, does a really nice job laying out how this deal effectively gives a few Universal Music execs veto power over any new music startup. Because if you're launching a music service today, you generally want it to offer a lot of popular music, and between Universal Music and EMI, they control a huge portion of that market -- much of it historical back catalog stuff, but also some of the more popular mega-acts today. The HuffPo writeup notes that Steve Jobs played the labels off of each other to get them to sign on to iTunes. But, today, the new UMG could control that process.

According to Paul Vidich, a former Warner Music executive who closed the iTunes deal, the pending merger between Universal and EMI could put an end to that state of affairs.

"Without a UMG-EMI license, they won't have a business," said Vidich, referring to new digital startups. "Within the new UMG-EMI there will be only a handful of senior executives who make these key licensing decisions. So this small group will become the gatekeepers for music startups that require these licenses. The psychology, pay packages and strategic interests of these executives will have an outsized impact on diversity and innovation in the entire online music industry."

Remember, Universal is the company whose former CEO, Doug Morris, once gleefully explained how he didn't understand technology and didn't even try to hire someone who did, because he wouldn't know how. Amazingly, his board let him keep his job for many years (he's since moved on to head up Sony Music). Morris' replacement at UMG, Lucian Grainge, has talked about how the CD format is important to the company's future. And he's now basically the guy with veto power over any new music service.

That does not bode well for the online digital music marketplace.

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Copyright Holders Still Sending DMCA Takedowns On Content That's Been Gone For Months

Mike Masnick — Fri, 7 Sep 2012 17:29:00 PDT

We keep seeing various DMCA takedown failures, and the folks over at TorrentFreak have discovered another common error while going through Google's Copyright Transparency Report and found that big copyright holders are still filing DMCA takedown notices on content hosted on sites like Megaupload and BTJunkie, despite the former being shut down in January and the latter shutting itself down in February.

If you look, you can see a bunch of takedown requests for Megaupload links in the past month. Some of these are by smaller players, whom you might expect to be confused, but there are some big guys as well. In the screenshot above you can see both BPI and the IFPI (on behalf of Sony Music). There are also DMCA requests from Universal Music, EMI, the Publishers Association and others. All for content that clearly doesn't exist and hasn't existed in months. Kinda makes you wonder if they even check this stuff. Considering that all of these copyright holders seem to think that Google and others can just magically "know" when there's infringing content around, it's pretty telling that even they don't seem to know how to tell if content exists, let alone if it's infringing.

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Copyright Killbots Strike Again: Official DNC Livestream Taken Down By Just About Every Copyright Holder

Tim Cushing — Wed, 5 Sep 2012 01:32:42 PDT

Here we go again. Less than 24 hours ago, content-protection bots killed a livestream of the Hugo Awards, thanks to the brief appearance of fully approved clips from an episode of Dr. Who. The whole situation was completely absurd to anyone harboring the tiniest vestige of common sense, but IP-protection software isn't built on common sense: it's built on algorithms.

This time, content protection via crawling bots have taken down another approved, perfectly legal stream. The victim this time? The Democratic National Convention's official stream, hosted at YouTube. As Wired reports, if you're looking to catch up on last night's activities, including a speech by Michelle Obama, don't bother:

The video, posted by the official YouTube account for the convention, DemConvention2012, was blocked, according to YouTube, for ostensibly infringing on the copyright of one of many possible suspects:

This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.
Sorry about that.
When contacted by Wired for comment, Erica Sackin, an Obama campaign staffer who works on digital outreach, had no knowledge of the outage, asked this reporter for the url and then upon seeing the takedown, said, "I'll have to call you back."

The video has since been updated to state that "This video is private." There's probably quite a bit going on behind the scenes at the moment, but fortunately Wired snagged the complete list of claimants for future reference. Take a good, long look at that list. There's a few of the usual suspects in there, including AP, UMG and Warner, entities not known to be shy about claiming content that isn't theirs.

Now, these entities aren't directly responsible for this takedown. This is more of an automated match situation, but it still doesn't change the fact that the inherent stupidity of the action, automated or not, does absolutely nothing to lock down stray, unmonetized content and absolutely everything to highlight the ridiculous nature of copyright protection in a digital age.

If Google can work with copyright holders to produce content matching software, it seems like it might be possible to designate certain accounts or entities as "off limits" from the wandering killbots. If the stream is authorized by, I don't know, the party of the current President of the United States, maybe, just fucking maybe, everything's "above board."

Sure, defining legitimate, pre-approved accounts may prove to be as difficult as determining which content is infringing and which isn't, but this should be the sort of thing that content holders should be working toward, rather than simply moving from disaster to disaster, smugly secure in the knowledge that filthy file sharers are getting content-blocked thousands of times a day.

Nice going, huge list of content holders. Your boundless, maximalist enthusiasm is just another nail in the coffin containing what's left of copyright's reputation.

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Artists Want The Ability To Buy Back Their Copyrights If Universal Is Allowed To Buy EMI

Mike Masnick — Wed, 1 Aug 2012 13:06:00 PDT

As Universal Music Group (UMG) continues dealing with antitrust questions as it tries to close its purchase of EMI, there's a lot of focus on "divestment," or which parts of the combined entity that would have to be sold off. There's even talk of having to sell off the famed Parlophone Records label (home of Coldplay and Radiohead). That would be a big deal, of course, but an even more interesting proposal has been brought up by the Featured Artists Coalition, a UK-based coalition of musicians, who are saying that if the company has to divest, why not let the artists themselves have the opportunity to buy back their copyrights at "fair market value."

Divestments in the wake of mergers should first offer copyrights, at market rates, to the artists who created them. To sell them to other corporations, whether large or small, is just a perpetuation of an old business model, which has seen the recorded music business halve in value over 10 years. During that time, the technological revolution has displaced the old music business players. We do not need to repeat the mistakes of the past.

It would be good to have music business people rather than financiers owning and running music companies again. It would be even better to have artists owning their work and entering into partner relationships with service-providing major and independent record companies with all the finance and expertise an artist needs to develop their own business.

That letter is signed by Ed O'Brien of Radiohead and Nick Mason of Pink Floyd. Of course, I imagine that the labels and the artists might disagree about what "market rates" are. Also, given how focused the labels are on fighting copyright termination in the US (allowing artists to take back their copyrights after 35 years), you have to imagine that they'd fight any such plan equally hard. It's no surprise why, though: if the artists who could afford to buy back their rights did so, that would take away many of the "big name" acts, which are pretty much the remaining money makers under the old system. There's no way the labels would agree to this, even if it certainly puts the artists' interests first. Yet another example of how labels' and artists' interests are not aligned at all.

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Dear Permission Culture: This Is Why No One Wants To Ask For Your OK

Tim Cushing — Mon, 30 Jul 2012 09:00:00 PDT

"Just ask for permission."

When it comes to dealing with the "permission culture" that goes hand-in-hand with copyright these days, there's really no way to win. Certain rights holders claim they just want to be asked, but the actual process involved makes it seem like you'd save a ton of time just assuming the answer is "no."

Hugh Brown (a.k.a. Huge), an Australian recording artist and music business coach, experienced this circuitous process firsthand when he attempted to craft a parody of Adam Lambert's "If I Had You," entitled "If I Had Stew." Parodies are handled a bit differently in Australia, despite recent concessions in Australian fair dealing laws. According to APRA (Australasian Performing Rights Association), "lyric changes and parodies of works must [be] cleared directly with the copyright owner."

"If I Had You" wasn't written by Lambert, but by Swedish songwriting team Maratone (Max Martin, Shellback and Kritian Lundin). But Huge couldn't approach Maratone directly as its website indicated that all the trio's songs were owned by the writer's respective labels. So he emailed Maratone and sent another form asking RCA/Jive Records for permission to make this recording.

Huge heard nothing from Sony but did hear back from Maratone... who told him to contact Kobalt Music Publishing and clear it with EMI as well. Quick count of players involved: There's Maratone, the trio of songwriters behind Adam Lambert (who's likely off sleeping the undisturbed sleep of successful angels). Sony Music. RCA/Jive Records. Kobalt Music Publishing. And EMI. That's four labels and not a single person willing to discuss clearing Huge's parody.

A couple of weeks pass and Sony still hasn't responded. Kobalt UK and EMI Australia have... sort of. The two labels directed Huge to yet another set of forms to fill out, despite him having given them all this information in his initial emails. The new forms aren't even for requesting permission to record a parody. All they do is assist the labels in compiling a price quote on the as-of-yet unrecorded song. And even if permission is granted, it likely still won't be enough. EMI only owns one-third of the track in question. Songwriter Savan Kovetchka, an EMI signee, contributed to Lambert's track, along with Max Martin and Shellback. This means Huge still needs permission from the other two songwriters and some sort of answer from Sony.

It's now nearly a month since Huge first made contact and no progress has been made. Sony appears to be ignoring his requests. If anything, he's further behind than he was 27 days ago, when this whole thing kicked off. The "good" news is that Kobalt Media (representing Kotecha) said "yes," giving Huge one-third of a "permission" -- pending EMI's approval... and when it comes to getting written permission, one-third of a permission slip is worth approximately one-third of nothing. Huge did the right thing and asked (and asked... and asked) for permission, but despite the ever-growing list of interested parties, it looks as if "permission" might be something they simply can't give. And then... things go completely off the rails.

Huge opens his last post on the debacle with, "Well, I'm gobsmacked! No wonder the major labels are in so much trouble." Kobalt has given their blessing but EMI begins a long process of royalty-related correspondence so twisted it would make Joseph Heller proud.

It starts out with a simple request for clarification by EMI.

What is your main goal for this use?

In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form. Is this principally for release as an mp3 single?

Huge responds:

To be honest, my main intention is to make the song for my own amusement.

If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.

If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.

Gauging the market before putting the song up for sale is just common sense and YouTube's a pretty good place to get quick feedback. But as soon as YouTube is mentioned, EMI fires off a preliminary standard contract for sync rights, showing that its share of any money generated would be 33.34% and a guesstimated one-time fee of $1000.

Huge forwards EMI his approval letter from Kobalt, which sends the label off on an entirely different tangent.

I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip. If you want to request approval to record and release this song you will need to get in contact with our copyright department.

So, Huge has been talking to the wrong people. He sends a letter back acknowledging the fact that he (obviously) can't sync the video until after he's recorded the song. He asks EMI for a contact name in the copyright department and receives this in response:

Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?

This a question that can't be answered. According to APRA/AMCOS rules, Huge needs to secure permission before he can worry about uploading it to YouTube. He tries again to get EMI to follow his line of thinking: get permission, record, upload.

That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.

My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...

EMI takes this clear statement of ducks-in-a-row and it decides that the mechanical license question needs to be clarified before anything else can proceed, except that other stuff (getting permission) also needs to happen first and perhaps simultaneously.

So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?

If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.

At this stage, Huge is still waiting for permission from two more writers. EMI, however, only seems to be concerned with properly licensing a song that a.) doesn't exist and b.) quite possibly won't exist if permission is denied. It's also given Huge the "opportunity" to pay an upfront fee of $1000 for a track he might not even make. Huge (once again) points out his thought process: permission, record, YouTube/mp3. This repeated clarification makes no difference. EMI is still hung up on the mechanical license for syncing when it's not trying to just punt the whole thing over to the copyright department. EMI also insists that its previously mentioned $1000 "contract" is valid for only four weeks, after which it will need to issue a new contract. Huge points out (again) that he still is waiting on permission to record.

EMI responds with this amazing statement, which baldly states that the label doesn't particularly care whether or not Huge ever gets a chance to record this parody if he's not willing to throw some cash its way:

We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.

Huge attempts to wrap his mind around this:

OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...

Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!

Precisely. If you want artists to play nice within the confines of your system, then you need to have a workable system, not just a set of loosely-related entities all acting independently and in their own best interests. Having multiple layers of corporate bureaucracy standing between two artists only hurts those who are actually trying to do the right thing. If Huge had gone the other way and decided that it was easier to ask forgiveness than permission, I can guarantee that any sort of takedown or cease-and-desist would come from a single source. When it comes to saying "no," you generally only need one person. But to get a "yes?" That's a "team" effort, apparently.

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EMI Adds Insult To Bankruptcy In Misguided Gloating Over MP3Tunes Demise

Mike Masnick — Mon, 14 May 2012 09:16:00 PDT

We already wrote about EMI's success in bankrupting MP3Tunes via overly aggressive litigation. But, now the company has decided to add insult to bankruptcy with a bizarrely gloating statement provided to News.com's Greg Sandoval.

Since November 2007, EMI Music and EMI Music Publishing have been engaged in a lawsuit with MP3tunes and its principal, Michael Robertson, in connection with Mr. Robertson's facilitation of widespread copyright infringement on MP3tunes.com and Sideload.com. These sites have built their businesses on the unauthorized distribution of music, at the expense of EMI's songwriters and artists.

Here, they're simply lying. The court ruling in the MP3Tunes case stated explicitly: "MP3tunes did not promote infringement." To claim otherwise is to ignore what the court stated flat out.

Now on the eve of trial, and after an ongoing press campaign claiming that MP3tunes would fight to vindicate its 'right' to infringe, Mr. Robertson has filed for bankruptcy protection for MP3tunes in the Southern District of California. After four and a half years of Robertson's bluster and rhetoric, it is apparent to EMI that Robertson has finally realized that his case has no merit.

While Robertson may believe that MP3tunes will be able to escape liability in the upcoming trial through this bankruptcy, Robertson himself is still a named defendant in the case and the Court has already determined that both he and MP3tunes have infringed EMI's copyrights. As such, he is facing personal liability both for infringements that the Court has already determined have occurred and for the further alleged infringements that will be addressed at trial. Accordingly, EMI will continue to pursue its case against Robertson, to ensure that its songwriters and artists are properly compensated for their creative work.

This makes no sense, and is even self-contradictory. As they state above -- and which everyone here knows -- filing for bankruptcy does not get you out of a copyright damages award. Thus, there is no reason whatsoever for the company to file for bankruptcy "to escape liability." That's impossible. The only reason to file for bankruptcy is because the company is out of money from fighting the damn lawsuit. And it's bizarre for EMI to claim that Robertson realized his case has no merit, considering that he mostly won the original lawsuit. Yes, there were a few key points that he lost on, which may turn out to be expensive if he loses on appeal and depending on the damages calculation, but the key elements of the case were won by Robertson and MP3Tunes.

It seems here that EMI is simply insulting Robertson out of spite. In the meantime, Robertson has pointed out that EMI spent $10 million suing him -- or more than the entire cost to build and run MP3Tunes. Remember that some exploration into how much EMI makes from Katy Perry's hugely successful album showed that the label probably ended up with about $8 million? Yeah, so basically it spent more suing Michael Robertson than it got from Katy Perry. Perhaps that money could have been better spent. No wonder the company was taken over by a bank and then sold off in pieces. Its priorities are a complete mess.

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EMI Kills Off More Innovation: MP3Tunes Declares Bankruptcy Due To 'Withering' Legal Costs

Mike Masnick — Fri, 11 May 2012 13:00:00 PDT

We've noted how frequently the entertainment industry -- especially the big record labels with the help of the RIAA -- seem to sue innovative upstarts. They usually do this as part of a two-part plan: they either want to kill off the innovation, or they use the lawsuit as the opening gambit in trying to get a big chunk of the equity of the startup (which they then stifle and kill). News broke recently that online music storage locker MP3Tunes, one of the first of its kind, filed for bankruptcy in large part due to the years-long legal attacks from EMI. The thing is, MP3Tunes basically won its case, showing that the basic service was completely legal. In fact, what MP3Tunes provides is basically the same service that Amazon and Google now offer with their music lockers. MP3Tunes was one of the pioneers in the space... and for its troubles, it gets sued into bankruptcy, despite being legal.

We keep hearing people insist that the record labels are adapting. And it's true that they've been pulled, kicking and screaming, into parts of the 21st century. But the second that anyone comes along doing anything remotely interesting and which provides real value, they freak out and sue. And it goes beyond that. As Robertson describes in his blog post about this, EMI apparently went to great lengths to destroy MP3Tunes, even if it was legitimate:

At every opportunity EMI dragged out the legal process making it costly and burdensome. One example is the interrogation of company employees in all-day inquisitions called depositions where attorneys try to trick people into making admissions. In our case, they deposed not just management but nearly everyone in the company all the way down to clerical help and customer support personnel. They even paid $25,000 to get an ex-employee to agree to a deposition. For management they deposed everyone - some multiple times with me getting deposed 3 separate times.

The legal pressure was not just confined within MP3tunes. EMI sent legal demands to existing partners and potential partners were told they could not work with MP3tunes or risk losing their license to sell EMI music. More than one digital company told us they wanted to work with us, but were prohibited from doing so by EMI. They used their government-granted copyright monopoly to get MP3tunes blackballed in the industry.

EMI spent an estimated $10 million dollars with multiple law firms to arm their attack against MP3tunes in an attempt to thwart unlicensed personal lockers. They know it's difficult if not impossible for startups to fight long costly legal battles. Their hope is that the startup cannot fund a protracted legal battle and they win by default. This happened with the music search engine Seeqpod, Muxtape, Favtape and many others that have quietly faded away. They know that even if the digital upstart prevails in court, they will be terminally weakened. Veoh won multiple rounds of their copyright battle outright only to be forced into bankruptcy after spending $7 million on legal bills.

As Robertson notes, fighting the legal battle was one thing, but blocking the company from partnering and building out its business was the really deadly part. Robertson, of course, has been outspoken in his criticism of the RIAA over the years, and has been through previous legal battles with them as well. In part, some of EMI's infatuation with this case appeared to be personally vindictive (they sued Robertson directly as well as the company). Whether or not MP3Tunes could have succeeded may be an open question. But it seems clear that the company had no chance at all given the barriers that EMI put in its place. Of course, during this same period we've witnessed the collapse and sale of EMI (in pieces) as well. Perhaps, instead of suing the innovations that would help move it into a modern digital era, it should have been looking for ways to embrace them.

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Bohemian Rhapsody Video Taken Down Again, This Time By The Drunk Guy Himself

Leigh Beadon — Tue, 3 Apr 2012 13:01:00 PDT

Well, this is a fun twist. We just wrote about the story of now-world-famous drunk guy Robert Wilkinson, his poor Freddy Mercury impersonation, and the resulting takedown and reinstatement of the video by EMI. Now a commenter points us to the fact that ~~the video has been taken down again~~ a different version of the video has also been taken down, thanks to a copyright claim by... Robert Wilkinson:

The claim is, of course, bogus. Wilkinson doesn't have rights over anything in the video: he didn't film it, and the song belongs to EMI. It's likely that he just wanted to stem the tide of this embarrassing video, and knew that he could do so in a few steps with YouTube's takedown tool. Whether or not he believes he does have some copyright stake here is unclear, but hopefully he knows better than to pursue things further, because he could end up facing liability for copyfraud. Unfortunately, this is how notice-and-takedown systems work: free speech can be easily censored, at least temporarily, by anyone for any reason.

Copyright does not exist to save people from embarrassment, nor does it even apply in this case—but in the ownership culture of intellectual property, the average person seems to think they have some innate right to control every use of their image or even any reference to their existence. It's not like this will make a difference anyway: plenty of people have surely made copies of the video by now, and it'll be back soon enough (possibly with autotune, or synced to My Little Ponies clips). Sorry Robert Wilkinson: there's no escape from reality.

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Easy Come, Easy Go: EMI Pulls Video Of Drunk Guy Singing Bohemian Rhapsody, Reinstates It After Backlash

Mike Masnick — Tue, 3 Apr 2012 10:33:35 PDT

You may have heard the story in the last few days about the really drunk guy, Robert Wilkinson, who was arrested and put in a police car up in Canada, and responded by breaking into song with a complete rendition of Bohemian Rhapsody. If you haven't seen it yet, you're one of just a few people:
So what happened? You guessed it. EMI, in its ultimate ridiculousness, issued a takedown for violating its publishing copyright. The immediate outcry actually made EMI back down, with the company saying:

"It seems like a mistake has been made."

That's a fun way of indirectly saying "hey, we made a mistake." Suggesting "a mistake has been made" leaves open the possibility that someone else made that mistake. But, in this day and age where the major labels are so quick to shut down anything that doesn't involve them first getting a huge check, perhaps the "mistake" is with the way the law works.

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Universal Music Claims Piracy Justifies Monopoly, Wants The Power To Control Digital Music Services

Mike Masnick — Fri, 30 Mar 2012 08:38:18 PDT

In a short article discussing how European antitrust officials don't appear to be too keen on Universal Music buying up EMI, and turning Universal Music (already the largest music label) into a truly dominant player in the market, there's this little tidbit:

Unnamed sources at Universal have briefed journalists that the competitive threat of digital piracy means consolidation should be permitted. Critics have pointed out that the merged entity's 40+ per cent market share would make it the king-maker for digital music services – and that no service would then survive without Universal's catalogue.

We were just discussing how the labels were looking to turn the screws on Spotify to try to wrench even greater profits out of the still unprofitable company. But really, when you put these two sentences side-by-side, it just shows how ridiculous the major labels -- and particularly Universal Music -- are today. Because of "piracy," it needs to be able to merge to create an even larger aggregator of back catalog music... to restrict that same music from appearing on new and innovative digital music platforms, unless those platforms pay more than is reasonable.

Get it? Universal Music's response to piracy is to create more piracy and limit innovation. The geniuses at the company (and, remember, this is the company whose former CEO once admitted that he was too clueless to even hire someone who might explain how modern digital technology worked -- and who not only didn't get fired for this admission, but was able to leverage his cluelessness into a new job running Sony Music last year) are basically saying that the only way they can compete with "piracy" is to so dominate the market that any company offering a music service has to do a deal on their terms, or not include its catalog. In other words, it wants veto power (and the power to extract ridiculous and unsupportable rents) on music service innovations.

Of course, that's a really stupid plan for a bunch of reasons, but let's call out the two big ones. First, the company's problems are not caused by "piracy", but by a stubborn unwillingness to adapt to a changing market. Second, restricting innovation in the digital music space will actually increase the amount of infringement, by (1) making it unprofitable for most companies to be in that space and (2) limiting true innovation and the necessary competition among services that leads to the kind of new innovations that consumers want. Instead, it'll just drive them to go back to what works: open infringement.

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EMI Sneakily Trying To Pretend Many Of Its Artists Can't Reclaim Their Copyrights

Mike Masnick — Fri, 2 Mar 2012 11:35:00 PST

We've talked plenty about the coming legal battles over "termination rights" in various works. If you're not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn't matter. Those rights cannot be taken away from the artist under the law. The exception to termination rights, however, is if a work is classified as a "work made for hire." However, the definition of what qualifies as a work made for hire is very, very narrow:

A “work made for hire” is--

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

There are a lot of specific conditions there. If you're wondering how such an odd list was put together, some have suggested it was basically just who was in the room. Somewhat surprisingly, one of the main parties who apparently wasn't in the room were the major record labels. Notice that sound recordings aren't there, and you'd have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one -- even the "authors" of the bill -- knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He's still at the RIAA where he's now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.

Of course, that hasn't stopped the efforts by the record labels to still pretend that the copyrights they hold are "works made for hire." They've been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is... 2013. So, a battle is shaping up.

Michael Robertson, who has been involved in a long term legal fight with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire. How are they doing this? Well, just by declaring that the songs are "made for hire" on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless. It doesn't mean the work hits any of the qualifications under the law.

The RIAA has been trying to claim that any albums are really a "compilation" so they qualify as a "collective work" under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it's unclear if those have been. Plus, the claim that an album is a "collective work" is a pretty weak one all around.

Either way, many artists probably don't even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he's dug up already -- including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:

What I'm looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)

Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that's a weaker case, since the band itself was put together by the label). Either way, it's pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.

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Kenny Rogers' Lawsuit Shows The Many Ways That A Major Label Screws Artists (Even The Big Ones)

Mike Masnick — Tue, 21 Feb 2012 09:36:59 PST

We've seen this many times before, where famous musicians are totally screwed over by the major labels. A bunch of folks have sent over a summary of Kenny Rogers' lawsuit against Capitol Records (EMI), which highlights the levels to which Capitol Records went to not pay Rogers. The central facet of the lawsuit is similar to that of lawsuits that a number of artists have been filing, concerning whether or not iTunes transactions are sales or licenses -- for which massively different royalty rates apply.

However, there's plenty of other crazy things in the lawsuit, most of which involve an "audit" that Rogers requested from Capitol in April 2007... and which took until March 2009 to complete. Yes, it took two years. For a basic audit just to make sure he was getting the money he was owed. Oh, and the audit showed that he was not getting the money owed. From there, things got worse... with all sorts of stalling and foot dragging, finally resulting in the lawsuit. That stalling included repeated promises to resolve the problems and pay up. Rogers was told at times that the company was "still ironing out a few things," and then later found out that the people he'd been negotiating with were no longer at the company -- replaced by a lawyer who just told Rogers that he would be happy to work with Rogers to "promptly try to resolve the Rogers audit" -- nearly two years after the audit was completed and four years after it was requested.

Among the problems in the audit are a bunch of unprocessed royalties that were put into a "suspense" file for no reason. These kept $76,956 from Rogers. There were also actions in foreign territories where Capitol appears to have ignored the royalties it's supposed to pay Rogers. There were also things as simple as just not reporting royalties on money from record club sales. The company is also accused of playing some tax games to double count taxes to avoid paying royalties. There's also the fact that Capitol charged Rogers the full amount for a video production to his own expenses (i.e., money they'd "recoup" out of his portion of royalties), but they ignored their own contractual agreement that only 50% could be expensed that way.

Then there's the fact that Rogers wants his cut from the money Capitol has received in various lawsuits -- those against Napster, Kazaa, AudioGalaxy, Grokster, BearShare and others. As we've noted in the past, the labels have bent over backwards to avoid paying out such money to the actual artists -- but Rogers wants his piece:

Such lawsuits have resulted in Capitol Records receiving monies from entities such as Napster, Kazaa, Audiogalaxy, Grokster, BearShare, and others. Capitol Records has refused to provide Kenny Rogers with an accounting regarding the amounts actually received. A portion of the monies received by Capitol Records is attributable to the Masters and Kenny Rogers is entitled to that portion of Capitol Records‟ receipts. Capitol Records‟ refusal to account to and pay that money to Kenny Rogers has resulted in Kenny Rogers suffering direct financial harm in an amount that cannot be determined until Capitol Records provides a full, fair, and accurate accounting.

There are a few other charges as well, but those are the big ones. None of this, of course, is to say that it's "ok" to infringe because the major labels are somehow "bad." But it does show just how ridiculous it is if anyone assumes the majors represent the best interests of artists in any way.

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Katy Perry Shows How The Problem With The Major Labels Is Economics, Not Piracy

Mike Masnick — Mon, 20 Feb 2012 05:38:23 PST

A few weeks back, the folks at Planet Money tried to break down the economics of Katy Perry's massively successful album with its five hit singles. Specifically, they wanted to figure out how much money her label made from such a big success. What comes out is a step-by-step description of the massive inefficiencies of the major label recording system. There are things like paying producers $100,000 per song they produce on the album. Then there's all the payola... er "special promotions" to get the songs played on radio so much. In the end, Planet Money calculates that Perry's label, EMI, probably made somewhere around $8 million in profit from Perry's music sales in the US. That's not topline revenue, but bottomline profit. That's not bad per se, but for an album with five hit singles and which was clearly one of the most successful albums in 2011, you begin to see why the labels are struggling.

But, of course, Perry, herself isn't struggling. As the full podcast by Planet Money notes, Perry has been able to avoid getting sucked into a "360" deal where the label gets to take some of all the revenue she earns. They just get the record sales. Perry, in the meantime, is estimated to have made $44 million in 2011 -- a large chunk of that coming from her tour, which alone grossed over $50 million.

What you begin to realize as you see more and more stories like this is, once again, the "problem" has nothing to do with the "music industry" failing... or even that musicians aren't able to make money any more. It's all about the bad economics of the record labels. They set themselves up to fail this way, focusing solely on that one slice of the pie, and not moving very quickly to adapt when the market shifts. Instead, they seem to have kept up the inefficiencies associated with making such a "hit" album, without figuring out a way to profit from the results. Of course, for artists like Perry, things are great. She's able to make a ton of money, most of which doesn't first have to filter through the label...

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Major Label-Owned Vevo Caught Publicly Streaming NFL Game Off Of 'Rogue Site'

Mike Masnick — Thu, 9 Feb 2012 12:55:00 PST

Where's ICE when you need them? For a while now, ICE has been making the case that sites that merely link to streaming content -- especially sports content -- are the most evil kinds of criminals around. It's why they're trying to extradite Richard O'Dwyer from the UK to have him face criminal charges. It's why they recently arrested Yonjo Quiroa, who will soon be tried on criminal charges as well. Both ran sites that linked to streams of TV content, including sports content. So clearly, this is serious, criminal business. In fact, if you believe the propaganda from the RIAA, these sites contribute to gangland violence and terrorism.

But, of course, when those major label guys want to set up an illegal public performance of an NFL game, where do they turn? You guessed it! One of those rogue sites.

Jason Kincaid over at TechCrunch has the rather insane story of how Vevo, the music video streaming company created by Universal Music and owned by Universal Music and Sony Music, had a booth set up at Sundance a few weeks back, where they, quite clearly, live-streamed an NFL playoff game. Yeah. In their "lounge," they had computers showing the game, apparently sourced from ESPN America -- which isn't available in the US. And the stream came from TuTele.tv, which appears to be quite similar to many of the sites that have been seized and shut down. In fact, it sounds pretty similar to Rojadirecta, which is currently fighting the US Justice Department in court.

And the folks from these major record labels used this source to live stream the football game throughout their lounge area at Sundance. It gets even more ridiculous when you remember that Congress has been trying to pass bills that would make such streaming a felony in and of itself. Senator Amy Klobuchar's streaming felony bill, S.978 -- the one that would potentially put Justin Bieber at risk -- as well as SOPA, both had provisions that made public performance of infringing content a potential felony. Those were mainly supposed to be directed at sites that allow streaming, but I think people would find it hard to argue that what happened in that bar was not a "public performance."

Of course, what this shows is that these issues are never as black and white as the RIAA would have you believe. And, just like many others, when the industry doesn't give them a convenient way to do what they want, even the RIAA's strongest supporters stoop to making use of rogue sites to potentially do "criminal acts."

I eagerly await ICE moving in to arrest Vevo execs for this blatant criminal activity.

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Judge Denies Injunction Against MP3 Reseller Due To Lack Of Irreparable Harm... But Says EMI's Arguments Compelling

Mike Masnick — Wed, 8 Feb 2012 15:59:09 PST

I've said before that I'm skeptical of the idea behind ReDigi -- a seller of "used" mp3s. The company claims it has a system to make sure that if you sell a music file you own, that they then make sure it's deleted from your computer. This just seems dumb for a variety of reasons -- some economic, some technological and some legal. But, most of all, I just don't see people caring enough to make this a valid business. Either way, whether it's dumb or not, the RIAA couldn't let the company actually try something new... so, of course it sued, with EMI subsidiary Capitol Records taking the lead on the case.

Somewhat surprisingly, the judge refused to issue the injunction, calling the case "fascinating" and noting that there were some serious issues to be dealt with concerning first sale rights around copyright (whether or not you can sell a product you bought that is covered by copyright). However, the judge also made it clear that he thinks that the record labels are likely to win in the end, saying that their arguments "look to be compelling." He just didn't issue the injunction because there was no evidence of irreparable harm if the site stayed up, as detailed in the transcript embedded below.

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EMI VP Comes Out Against SOPA/PIPA; Says The Answer To Piracy Is Providing A Better Service

Mike Masnick — Wed, 25 Jan 2012 08:23:03 PST

Over the years, I've definitely found that there are plenty of folks working inside the major record labels (and big studios) who really do get what's going on. The problem is often that their voices are drowned out by others (usually the older guard) who are pretty stubborn in their anti-innovation, anti-consumer ways. It's always nice, however, when someone from the inside pops up and says something sensible in public, and those folks deserve kudos. The latest is Craig Davis, EMI's VP of Urban Promotions. He recently did a Reddit AMA (for you non-Redditors -- a Q&A session), in which someone asked him his opinion of SOPA/PIPA/ACTA, and he gave a really reasonable answer:

Personally, I feel that the method they're using is incorrect. All it will do will cause headaches and issues for everyone.

However, I do believe that a person should be compensated for their work. I feel that piracy is a big issue, and things like Spotify will assist in combating this problem.

Gabe Newell is correct, it's a service issue not an issue of money. Sales have gone up from sales concerts and merchandise, it's obvious that our fans still love music. We're just not giving them their music in an easier way.

The reference to Gabe Newell, of course, concerns Newell's regular speeches about how you compete with piracy by providing a better service -- something Newell's Valve has done quite well over the years.

Davis has it exactly right here. The only thing that's been shown to work over the years as a method of dealing with widespread infringement is to offer a better service. Things like SOPA/PIPA/ACTA will cause lots of problems... and won't do a damn thing to slow down infringement. EMI is in the process of being swallowed up by Universal Music, so who knows what happens here, but if I was in charge at Universal, I'd give Davis a nice promotion. Tragically, however, in my experience, the folks who do get these things from within the major labels frequently end up outside the major labels before too long....

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Insane Entitlement: EMI Sues Irish Gov't For Not Passing SOPA-Like Censorship Law

Mike Masnick — Thu, 12 Jan 2012 10:49:05 PST

The sense of entitlement exhibited by the legacy players in the entertainment industry is now reaching positively insane levels -- highlighted by the news that major record label EMI (in the process of being acquired by Universal Music to make it the largest record label by far) is suing the Irish government because it feels the Irish government is taking too long to pass a SOPA-like law that would require ISPs to censor the internet and block access to sites it doesn't like. I'm not kidding. Apparently, because the legislative process is too slow, it feels the need to sue.

In another article on the lawsuit, EMI Ireland's CEO complains that the length of time it's taking the government to craft such a censorship bill is "leading me to believe it’s unlikely to satisfy the music industry’s requirement for injunctive relief."

Think about that for a second. The major record labels have such an insane sense of entitlement, they think that any bill they declare that they "require" must become law, or they can sue the government. More specifically, EMI is effectively confessing here that it's upset that the government isn't sharing the bill ahead of time with EMI or others in the industry. Again, the massive sense of entitlement of these guys is such that they expect that they get to write the laws, and when they're left out of the process, they get to sue over it. And yet, on every one of these laws, the people actually impacted by them -- the public -- get no real say or can't see them. Remember ACTA? The public was left totally in the dark, while RIAA/MPAA officials and others had pretty detailed access and the ability to help craft the bills. And yet, when EMI doesn't get to see a draft of a bill, and it makes them think that it won't go the way they want, they sue? Damn.

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And Then There Were Three: Bye, Bye EMI

Mike Masnick — Fri, 11 Nov 2011 11:31:46 PST

The major labels have been dropping one by one. Of course, they never "die out" completely... they just get weak enough until someone buys someone else. The Big Six became the Big Five when Universal took over Polygram. The Big Five became the Big Four when Sony (formerly CBS Records) and BMG effectively merged. And, now we're down to the Big Three as Universal and Sony pick off the remains of EMI. This was pretty much a foregone conclusion that there would be some sort of merger, when Citibank took over EMI after EMI defaulted on its debt obligations. Universal is picking up the music division for $1.9 billion while Sony gets the publishing side for $2.2 billion. Universal was already the world's largest record label, so adding the likes of the Beatles, Coldplay and Katy Perry to its roster must be appealing. Of course, there's some concern among regulators that this raises antitrust questions, but I really don't see the issue here. Universal Music has been self-imploding by failing to adapt. I don't see how merging it with EMI will do much other than to allow it to continue to be a nuisance and continue to not understand how to embrace the internet. Besides, spending $1.9 billion for more back catalog, rather than investing that kind of money into actually adapting? If anything, this simply accelerates the decline of these labels.

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