Performance Rights Organizations Again 'Protecting' Artists By Killing Off Revenue Streams

from the this-revenue-opportunity-has-been-destroyed-for-your-protection dept

While attempting to do nothing more "infringing" than listen to (fully licensed) music, I ran into the sort of bizarre, pointless restrictions I thought only German citizens had to deal with.

Alec Empire, founder of Digital Hardcore Recordings and leader of Atari Teenage Riot, recently compiled a list of his 13 favorite albums for UK music site, The Quietus. Along with this, he put together a three-hour mix of tracks from these albums and posted it to Mixcloud. It seemed to be the natural companion piece so I headed to Mixcloud and ran straight into a wall set up by several music licensing services.

For reasons that only make sense to a host of PROs (performance rights organizations), this upload is "unavailable in my country." Why? Good question. Fortunately, Mixcloud has an answer, but not one that will make anyone (but performance rights groups) happy. (And even then, how? But that's a question for later).
In America Mixcloud has blanket music licences with SoundExchange, ASCAP, BMI & SESAC.

These licences stipulate certain rules around how you can listen to a service like Mixcloud:

- The tracklist must be hidden until you hear it
- You cannot scrub or rewind backwards within a Cloudcast, only forward
- Cloudcasts with more than 3 tracks by the same artist may not be available for listening


As music lovers ourselves, we understand that this may be frustrating at times, and we hope that in the future the rules will evolve to be more open to new types of services like Mixcloud.
The problem here isn't artists or labels. The problem here is middlemen that collect performance rights on behalf of artists. But what exactly are ASCAP, BMI and SESAC going to collect if no one in the US can stream these tracks? Even the top 5% of artists that receive the majority of collections are earning nothing if the tracks (by such non-top 5-percenters like Duke Ellington, Shizuo, Goblin and Pharoah Sanders) can't be played. So, this collection of PROs (not that SoundExchange is completely faultless either…) is "assisting" its roster in making a slim percentage of… nothing.

And look at all the technology that's being disabled in order to satisfy this motley collection of acronyms. No skipping tracks. No replaying tracks. Nothing over three songs by the same artist. You can't even view the tracklist in the United States, so there's no way of seeing what Empire chose to include in his mix. It's two-thousand-fucking-fourteen and a bunch of PROs have turned a streaming site into the equivalent of an unlabeled C90 being played on a malfunctioning tape deck. Or, in this case, not played.

Sure, licensing agreements for streaming tend to have all sorts of specific terms delineating interactive and non-interactive services, but a license that "permits" no interaction at all? If this is all that's "allowed" by Mixcloud's licensing agreement, why even bother? It might as well just route affected users to a static page saying "Not For You" and save itself the hassle of supposedly pro-artist groups like this that so severely kneecap a service that it has all the functionality of a bitmap.

Once again, this is helping artists how? People unfamiliar with the artists Empire is showcasing (which would be most people) won't have any idea if they like them or not, which isn't really going to increase sales. Running into such an inherently stupid, counterproductive wall is also likely to put off people from a) searching for these artists on their own, and (more importantly), b) using Mixcloud as a platform for listening and/or uploading.

The saddest part is that Mixcloud has blanket licensing agreements with these entities and despite that, it can't even offer a functioning service to a country that would likely provide it with its largest user base.

Do these PROs view this sort of abject ridiculousness as some sort of victory, one that sacrifices its artists in order to maintain absolute control of Mixcloud's platform? How does this help anyone sell more albums or earn more streaming revenues? I doubt anyone at the acronymous (and acrimonious) agencies have any idea. I doubt further that they care.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    rw (profile), Aug 12th, 2014 @ 4:57am

    That's why I use a VPN. (At least part of the reason.)

     

    reply to this | link to this | view in thread ]

  2.  
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    That One Guy (profile), Aug 12th, 2014 @ 5:03am

    Re:

    How dare you go out of your way, potentially spending money to do so, to be able to pay for services you otherwise wouldn't have access to! /s

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Zakida Paul (profile), Aug 12th, 2014 @ 5:52am

    Re:

    Cactus VPN: VPN for hiding what I am doing from my ISP. Smart DNS for getting around pointless geographical content restrictions. All for less than a Netflix subscription/

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 5:54am

    We're sorry for the inconvenience but this artists recordings have been [Redacted].

     

    reply to this | link to this | view in thread ]

  5.  
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    PaulT (profile), Aug 12th, 2014 @ 6:06am

    Re: Re:

    Sadly, that's the reaction I often get during these arguments, and the sarcasm is nowhere to be seen.

    There's limited availability of some types of services where I live, so I use VPN services to access some content that I'm willing to pay for but otherwise unable to. I then not only pay for the VPN service, but also pay the same for the service as a local user, at minimum.

    The usual response from the moron crowd? Either I'm "stealing" something somehow (i.e. the idiot I'm addressing doesn't grasp the "paying" part), or I'm acting immorally because I dare to bypass a prescribed business model. Because apparently, if something is unavailable anywhere locally, the best way to increase sales is to also ban imports...

     

    reply to this | link to this | view in thread ]

  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    Whatever, Aug 12th, 2014 @ 6:17am

    Mike Masnick just hates it when copyright law is enforced.

     

    reply to this | link to this | view in thread ]

  7.  
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    Anonymous Coward, Aug 12th, 2014 @ 6:19am

    Do these PROs view this sort of abject ridiculousness as some sort of victory, one that sacrifices its artists in order to maintain absolute control of Mixcloud's platform?

    More like they want to make on line services unusable, so that artists do not bypass the labels and associated collecting agencies. Just think, if artists self publish the labels and collecting agencies would be out of their jobs!

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 6:19am

    Re:

    Pirate!

    Only pirates use a VPN to get and pay for content they aren't allowed to buy!

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 6:23am

    Re:

    I think he only hates when it's perverted. other than that I'd say he's a reformist artist.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 6:38am

    Re:

    Of course he does. Copyright law is inefficient and ridiculously biased towards a few corporate interests at the expense of the public. Having said that, Mike didn't write this article.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 6:41am

    Re:

    This isn't copyright law being enforced - this is asinine and potentially unlawful restraint on trade, which is the part that should be being looked at.

     

    reply to this | link to this | view in thread ]

  12.  
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    PaulT (profile), Aug 12th, 2014 @ 6:51am

    Re:

    There's two possibilities here. Either this is someone trying to "ironically" make Whatever look stupid by repeating this tired phrase and attacking the wrong author to boot. In which case, you're dumber than he is by doing it, so please stop. It stopped being amusing a long time ago.

    Otherwise, you (be you the "real" Whatever or not) have no idea what copyright law is. Nothing's being enforced here, except for a private licence agreement. You can happily support the licence being enforced, while at the same time pointing out how utterly ridiculous and counter-productive the licence is.

     

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  13.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 6:54am

    They only want free promotion for artists that they pick and choose, read: todays popular garbage that everybody is hypnotized into "liking" because they hear it so much throughout the course of a single day!

    Anything else they clamp down on because they don't want them to be all that successful, compared to something like that annoying HAPPY song which they make sure gets drilled into your head.

     

    reply to this | link to this | view in thread ]

  14.  
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    Anonymous Coward, Aug 12th, 2014 @ 7:00am

    Translation..

    As music lovers ourselves, we understand that this may be frustrating at times, and we hope that in the future the rules will evolve to be more open to new types of services like Mixcloud.

    We LOB da money, and dun gib a fuk if it makey you sad like little cry girlies when can't listen to music. Maybe one day we gun get round to find way to snu snu artist and consumer with interwebz but til den, go fuk you self. Sign up for eyeToonz.

    Respectfully,
    SEASAW, I BM, ASSHAT

     

    reply to this | link to this | view in thread ]

  15.  
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    Anonymous Coward, Aug 12th, 2014 @ 7:13am

    the only time one of these music companies allows what it should is when it can make more money than it would ordinarily. if it doesn't it restricts everyone from using alternatives, keeping the complete control itself, and let's face it, that is more important than anything else to them!!

     

    reply to this | link to this | view in thread ]

  16.  
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    Anonymous Howard (profile), Aug 12th, 2014 @ 7:14am

    Re:

    What a loss that would be...

     

    reply to this | link to this | view in thread ]

  17.  
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    Nick (profile), Aug 12th, 2014 @ 7:22am

    I ran into this with one of my old mixes just a few weeks ago that has been up for a few years.
    http://www.mixcloud.com/nsputnik/library-and-radiophonioc-influence-revealed/

    My mix does have more than 3 songs by 2 artists each. However, neither of them are represented by SoundExchange, ASCAP, BMI or SESAC. I looked them up in all for PRO site. I e-mailed Mixcloud about this and got their same boilerplate response.

    Thank you for addressing this Tim.

     

    reply to this | link to this | view in thread ]

  18. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 7:38am

    Re:

    That's why I use a VPN. (At least part of the reason.)

    I'm sure Little Timmy does too, and as soon as he saw this message, he decided that he gets to decide what's available where and that his needs are the only thing that matters.

    Typical Techdirt Whiny Bitches.

     

    reply to this | link to this | view in thread ]

  19.  
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    PaulT (profile), Aug 12th, 2014 @ 7:49am

    Re:

    "However, neither of them are represented by SoundExchange, ASCAP, BMI or SESAC."

    Thanks for the link, looks like good stuff!

    However, let's remember that this system is set up to skew towards the major labels. We've seen numerous examples where such organisations will collect "on behalf" of artists they don't represent. The default position seems to be that if there's any doubt, the assumption is that the labels have a claim and so it's censored/collected for anyway.

    But, in this case, we don't even have to go that far. A quick search of the ASCAP site (https://www.ascap.com/home/ace-title-search/index.aspx) shows that at least one of the tracks on your mix (by Portishead) is listed in their catalogue (and, if I'm not mistaken, is on a major label both sides of the pond). Furthermore, other fairly well known artists (Aphex Twin/AFX, Meat Beat Manifesto) are listed there even if the specific tracks aren't.

    I'll guess that your mix therefore came within sniffing distance of a major label claim and thus got censored. A shame, since a lot of the tracks are by artists I'm not familiar with, but then I'm not in the US so hopefully will get a chance to check it out later.

     

    reply to this | link to this | view in thread ]

  20.  
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    PaulT (profile), Aug 12th, 2014 @ 7:50am

    Re: Re:

    So, you admit you're now just attacking paying customers?

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Whatever, Aug 12th, 2014 @ 8:26am

    Re: Re:

    You tell that filthy pirate, you brave soul.

    Can I have your babies?

     

    reply to this | link to this | view in thread ]

  22.  
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    etrimby (profile), Aug 12th, 2014 @ 9:25am

    Re: Re:

    More of a digital smuggler really.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Ruben, Aug 12th, 2014 @ 9:26am

    Re: Re:

    I didn't see any whining. Just someone who encountered an arbitrary, senseless restriction and circumvented it.

    The whiner in this case would be you.

     

    reply to this | link to this | view in thread ]

  24.  
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    Nick (profile), Aug 12th, 2014 @ 9:45am

    PaulT, my mix was specifically sighted by Mixcloud as having more then 3 songs by the same artist. The artists you mention that do have representation in the US only have either one or two tracks in my mix.
    http://support.mixcloud.com/customer/portal/articles/1595566-us-licensing-sound-recording-comple ment-rule

     

    reply to this | link to this | view in thread ]

  25.  
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    jupiterkansas (profile), Aug 12th, 2014 @ 9:51am

    They don't want you to listen to the music. They just want you to buy it because a magazine told you to. That's how it worked in the old days.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    BigKeithO, Aug 12th, 2014 @ 10:00am

    Re: Translation..

    This looks like a YouTube comment. Very eloquently put good Sir!

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    BigKeithO, Aug 12th, 2014 @ 10:02am

    I think this story is kind of funny. Oh no, a US user see's what the internet is like for the rest of the world?! The horror!! Don't they know you are from the US of A??

    (goes back to sadly pouting in Canada)

     

    reply to this | link to this | view in thread ]

  28.  
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    Nick (profile), Aug 12th, 2014 @ 1:16pm

    Re:

    Great point, Keith. US PROs have been blocking content outside of the US for a while and now they are doing it inside the US in a case where they have no jurisdiction.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    jesus paranoiyez, Aug 12th, 2014 @ 1:39pm

    The 3h mix is also up his soundcloud - try this

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 5:13pm

    Re:

    Hmm... I'll have to try out mixcloud -- by submitting mixes of material I've written myself. I could even give some of the material interesting song titles. I'd be interested to see what combinations set off the filters.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Aug 12th, 2014 @ 8:31pm

    Re: Re: Re:

    You two are one fucked up pair, you know that?

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Rekrul, Aug 12th, 2014 @ 9:00pm

    Copyright - Crippling technology since at least the 1800s!

     

    reply to this | link to this | view in thread ]

  33.  
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    PaulT (profile), Aug 12th, 2014 @ 11:57pm

    Re:

    Ah, thanks for the clarification. I apologise if I made an incorrect assumption there.

     

    reply to this | link to this | view in thread ]

  34.  
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    Nick (profile), Aug 13th, 2014 @ 7:37am

    Re: Re:

    I know of an independent artist in the UK who made a mix containing only a dozen his own songs, and it is blocked here in the US. Your mix will be blocked as well.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Steer, Aug 13th, 2014 @ 10:50am

    If you knew just a little bit about the subject on which you are writing, you would have spared yourself the embarrassment of writing this piece.

    The restrictions Mixcloud references have NOTHING to do with its ASCAP, BMI, or SESAC licenses. There is NO provision of an ASCAP, BMI, or SESAC license that imposes any such limitations. You get a license from one of those three PROs (which represent songwriters BTW, not artists), and you could play any one of the songs in their repertory all day, every day.

    Rather, the restrictions referenced come directly from U.S. law - 17 U.S.C. 114 to be exact - and apply to performance of the sound recording created by the recording artist (and licensed by SoundExchange), not the performance of the musical work written by the songwriter (and licensed by either ASCAP, BMI, or SESAC) In other words, it is U.S. law that specifically states a non-interactive streaming service must observe those restrictions in order to get the benefit of the 114 statutory license that give such services the right to perform sound recordings at a government-set rate. If a service wanted to avoid the restrictions set by the 114 statutory license - for instance, operate an interactive streaming service like Spotify - then the service needs to negotiate in the free market with the sound recording rights holders for the rights. In other words, Mixcloud could get the rights to avoid the restrictions to which it points, but would need to negotiate in the free market with rightsholders.

    The fact that Mixcloud points to ASCAP, BMI, and SESAC as being partly responsible for the restrictions only shows how completely clueless the Mixcloud operators are about basic features of music copyright law.

     

    reply to this | link to this | view in thread ]

  36.  
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    Nick (profile), Aug 14th, 2014 @ 8:11am

    Re:

    Thanks Steer.

    To summarize, U.S. Copyright Law prohibits Mixcloud users from using more than 3 songs from an album or more than 4 songs by the same artist in a mix so that Mixcloud may benefit from a 114 statutory license that they pay to SoundExchange.

    from http://www.law.cornell.edu/uscode/text/17/114
    CHAPTER 1—SUBJECT MATTER AND SCOPE OF COPYRIGHT, 17 U.S. Code § 114. Scope of exclusive rights in sound recordings (j) Definitions

    (13) The “sound recording performance complement” is the transmission during any 3-hour period, on a particular channel used by a transmitting entity, of no more than— (A) 3 different selections of sound recordings from any one phonorecord lawfully distributed for public performance or sale in the United States, if no more than 2 such selections are transmitted consecutively; or (B) 4 different selections of sound recordings— (i) by the same featured recording artist; or (ii) from any set or compilation of phonorecords lawfully distributed together as a unit for public performance or sale in the United States,


    So, a few questions.

    • Does Mixloud pay a statutory license to PROs outside of the U.S.?

    • How does U.S. copyright law apply to the performance inside the U.S of artists who are not party to SoundExchange?

    • If an independent artist does not "lawfully distributed for public performance or sale in the United States" then this restriction should be exempted, correct?

    • If you wanted to produce a show which featured a different live performances by an artist in each show, which will most likely exceed 4 songs you must buy a licence from one or more U.S. PROs and you could not use Mixcloud to host it, is that correct? Or could you buy a licence and then us Mixcloud?

     

    reply to this | link to this | view in thread ]


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