Funniest/Most Insightful Comments Of The Week At Techdirt

from the ringing-in-the-new-year dept

We've got a double winner this week, with our top comment taking the first place spots for both insightful and funny. It came in response to the news that cryptography pioneer David Chaum is working on creating backdoors for law enforcement. A Non-Mouse perceived a devil in the details:

Who holds the keys?

"...nine server administrators..."

Let me put that another way:

Nine
Server
Administrators

In second place on the insightful side, we've got a response to the lawsuit that hit the Big Bang Theory TV show over its use of an 82-year-old poem. AJ simply vented his frustration with the whole situation:

I'm not really pro or against IP laws or property. With that said, this is fucking ridiculous. I believe artists and creators rights should be protected, but for 80 years? That's just stupid, that makes absolutely no since to the common person. I could see 20 years, but 80?

The Pro IP lobby get stupid laws passed by paying off our politicians, then they scream that people don't have any respect for IP laws and start filing lawsuits. The reason people don't respect the IP isn't because people don't respect IP, it's that they don't respect the stupid fucking laws protecting IP. So what's the IP Lobby do? They get even more stupid laws passed and around we go....

For editor's choice on the insightful side, we've got two long comments that offered additional legal details on the byzantine world of copyright law. The first came from Lonyo in response to that same post, elaborating on the copyright status of the poem:

As far as I am aware from reading the 1909 copyright law and the filing, the situation is as below:

Newlin gave "permission" (per filing) for her song to be included in the book made by Willis.

Under the 1909 Copyright Act, if the book is considered a composite work, then the renewal of the book by Willis in 1964 would renew the copyright of the book itself, and also all works within the book.

The 1909 Copyright Act states that the proprietor of a composite work upon renewal also renews all copyrights within the composite work.

The issue which is central to this is whether or not the book is a composite work, in which case the Willis renewal also renewed the Newlin copyright on an individual basis.

The underlying agreement between Newlin and Willis would probably dictate whether it's a composite work, whether Willis holds the copyright, or whether it's not a composite work AND Willis does not hold the copyright.

If it is not a composite work and Willis does not own the rights, I believe that would mean the copyright has expired.
If Willis received the rights as part of the arrangement (unlikely as the song has a separate copyright notice), then Willis would own the copyright and it would be valid.
If it is a composite work, then the Willis renewal would mean that Newlins has a valid copyright for the song which is separate from the composite work copyright, I believe.

The problem is this:
The 1909 Copyright Act, and amendments, do not define a composite work.

If it was a renewal of a composite work by Willis and Newlins holds the copyright, there is no definite way for WB to have known that the copyright was held by Newlins, as Newlins never registered or renewed directly. I think that WB could only have gone to Willis as the renewer and relied on their representations of the nature of the work as to who held the copyright, short of demanding to see the original agreement between Newlins and Willis for the use of the work.

Next, we've got a comment from Karl digging even further into the licensing questions surrounding David Lowery's lawsuit against Spotify:

The whole situation is even more complicated than the article describes. Unsurprisingly, Lowery's lawsuit doesn't bring these complications up, either, since they both favor Spotify.

First of all, it doesn't consider the case where there are multiple songwriters. I'll let the FMC explain it:
There are pros and cons for licensees and licensors with regard to the compulsory mechanical. On the positive side, it can help streamline the process of obtaining licenses, which is not only important to services that offer expansive catalogs, but also labels who release recordings that embody compositions with an often staggering number of co-writers and co-publishers. [...] Publishers' list of negatives may can include rates that they belive do not reflect market value, the hassles of monthly accounting and the fact that a user needs only to serve one publisher, even if there are multiple parties who own a portion of the work. It’s up to the publisher who was served notice to pay any co-publishers.
- Where's My Mechanicals? The Ultimate Explainer

Given that many songs have two authors (including most pop songs), and other songs have many many more, this almost certainly accounts for the majority of unlocated songwriters.

Second of all, it doesn't go into the contracts between Spotify, the Harry Fox Agency (HFA), and the publishers/songwriters they represent (HFA calls them "affiliates").

HFA offers a standard license for streaming in limited quantities. And, as a licencee, you are explicitly exempt from sending NOI's:
Upon issuance of this license, you shall have all the rights which are granted to, and all the obligations which are imposed upon, users of said musical work under the compulsory license provision of the Copyright Act, after phonorecords of the copyrighted work have been distributed to the public in the United States under the authority of the copyright owner by another person, except that with respect to Interactive Streams thereof made and distributed hereunder: [...]

3. You need not serve or file the notice of intention to obtain a compulsory license required by the Copyright Act.
- https://www.harryfox.com/documents/songfile/samplelicense_interactive_streams.pdf

HFA also takes over this duty if you sign up with their Slingshot service. In that case, I don't know if the songwriter even needs to be licensed by HFA; HFA might send out the NOI's on your behalf.

Larger streaming services (like Spotify) must sign direct deals with HFA, but I would be utterly shocked if there wasn't similar language in their contract. So, if Spotify is using any songs that are licenced by HFA, they almost certainly don't have to file NOI's.

Of course, that only applies to songs that are licenced by HFA. True, HFA does administer the licenses for the vast, vast majority of commercial songs, but not all of them. (In fact, if your song isn't published by a record label, you can't become an affiliate.) There is certainly going to be a factual issue as to whether HFA represented that they could license songs (or did in fact issue license for songs) where they didn't administer 100% of the rights.

It should also be noted that the HFA contract also specifies that HFA has a right to audit their licensees. So, it's not like they weren't aware of what songs Spotify was playing.

I'm guessing that there was some sort of problem on HFA's end, since Spotify is building their own database, and negotiating with the NMPA, instead of relying on HFA like they previously were. (But who knows, it could also be because HFA was recently bought by SESAC.) Whatever the issue, if this does become a class-action lawsuit, this is going to be a pretty tiny class. It would be a class composed of songwriters who are played on Spotify but not represented by HFA.

Does any of this apply to Lowery's songs? Perhaps, perhaps not. The particular songs in the lawsuit, at least, do not come up if you do a public search for them in HFA Songfile. (Unlike his Camper Van Beethoven songs.)

Regardless, I don't think he has a snowball's chance in Hell of proving "willful" infringement.

Also, this is the first I've heard the theory that non-interactive streams were not covered by statutory mechanicals. HFA explicitly says they are, and most industry folks seem to believe that as well. It also seems pretty clear in the statutes:
[(c)(3)](C) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments [...]. Such terms and rates shall distinguish between (i) digital phonorecord deliveries where the reproduction or distribution of a phonorecord is incidental to the transmission which constitutes the digital phonorecord delivery, and (ii) digital phonorecord deliveries in general. [...]

(d)Definition. - As used in this section, the following term has the following meaning: A "digital phonorecord delivery" is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible.
- 17 USC 115

Over on the funny side, we've already had our first place comment above, so we move straight on to second place. This time, it comes in response to the unfolding T-Mobile fiasco and the company's strange attempt to frame throttling as a wonderful gift to users. JD decided to co-opt this strategy for himself:

Don't think of it as me "canceling my contract with T-Mobile and filing a complaint with the FCC". If you think I'm doing that then you're a jerk and engaging in semantics and bullshit. And quite honestly I expect better of you. I'm merely optimizing my mobile data experience and giving T-Mobile the choice to acquire new customers! They should be thanking me for opting them in to this experience.

I call it "Purge On".

For editor's choice on the funny side, we start out with one more response to what would later turn out not to be John Legere's most embarrassing public statement of the week. Blaine couldn't properly respond due to technical issues:

I'm trying to watch his video on my phone but it keeps pausing to buffer and it's taking too long to load.

But of course, that wasn't the centerpiece of the T-Mobile affair: that honor goes to John Legere's anti-EFF flameout. One anonymous commenter made an observation that actually racked up a handful of insightful votes while failing to earn a funny badge, but I still think it belongs here:

Well. Net Neutrality now has its own Michael Richards.

That's all for this week, folks!

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