A "spin" on Pandora is not comparable to anything on radio.
You're absolutely correct about this. However, the rates that LAB (and the Broadcast Law Blog) are quoting are all rates for Internet streams. They are paid to the artists and copyright holders, not songwriters; they are the royalties that terrestrial radio stations don't pay at all.
This makes LAB's argument even less persuasive, since the amount paid to these people by "other forms of radio" is zero.
Some other details that LAB (intentionally?) left out:
Broadcasters who are streaming their programming on the Internet pay lower per performance royalties than webcasters paying the statutory rate in the first years of the 5 year period, but higher rates at the end of the period. (See a summary of the Broadcaster royalty agreement here). "Pureplay" webcasters, like Pandora, pay significantly lower per performance royalties than either broadcasters or those paying under the statutory rate, but are required to pay a minimum fee of 25% of the gross revenue of their entire business – ruling out these lower rates as an option for any service that has lines of business other than webcasting.
Emphasis in original.
Note the detail about the minimum 25% rate. This is about five times higher than terrestrial radio stations pay to songwriters.
Also make sure you read another article that LAB posted in another comment:
For example, AM/FM paid him $1,373.78 for 18,797 spins. That’s 7.3 cents per spin. If only 10,000 listeners heard each spin, terrestrial radio is in fact paying just half the songwriter fee Pandora paid him per listener. And of course it’s likely to have been far more than 10,000 – even the intentionally miniscule South Dakota radio station Pandora just bought manages to average 18,000 listeners.
I know I'm late to the party, but I was doing some research about this, and I wanted to point this out.
the NY Times revealed that a Hollywood front group, the Digital Consumer's Alliance, which is funded by the movie studios, hired Moore as a lobbyist.
It's actually the Digital Citizens Alliance, not the Digital Consumer's Alliance. They are the same folks who released the ridiculously biased "studies," "Good Money Gone Bad" and "Behind The Cyberlocker Door."
The MPAA paid state AGs to investigate Google. If that is legal, isn't the exact opposite, Google paying state AGs to not be investigated, also legal?
While I'm sure that was (as least partially) sarcastic, this is oftentimes how politics works at the national level.
That's part of why the copyright hearings are all about "Silicon Valley vs. Big Media" (and neither the public, nor actual artists, are involved at all). Both have skin in the game, and both are heavily funded.
So, the Senate announces some possible legal changes, and hold committee meetings and hearings. The "big money" guys are invited. Both sides dump lots of lobbying money into whichever Senators are part of the committee, and whichever side pays the most, is the one whose talking points are repeated verbatim by the Senator in the meetings.
In the end, little if anything is done, and nothing changes. Nothing, that is, except the Senators' pocketbooks.
But my original suggestion was made as a way to resolve the apparent contradiction between people having chosen a CC license which allows commercial use and still being upset over this. I interpret that as indicating that those people do, in fact, fall into that category which you described as "mostly-theoretical"
I actually don't think they are. I think they would be just as upset if Flickr started selling coffee mugs and mouse pads with their images on them. On the other hand, Flickr isn't doing this, so who knows.
It's possible that the people who are upset about this either chose the wrong license (i.e., would indeed have preferred to prohibit all commercial use of their images) or are, in fact, just being hypocritical.
I wouldn't say "hypocritical." I'd say that the vast majority are simply ignorant of the ins and outs of copyright law, which is not particularly uncommon.
The two articles that Techdirt linked to, seem to suggest that the photographers are fine with any business except Flickr itself using the images in a commercial context. (So presumably they would be OK with someone selling coffee mugs with their photos on Etsy, but not Flickr itself selling coffee mugs with their photos.) That, to me, is incredibly hypocritical. Frankly, I don't understand that reasoning at all.
But honestly, I don't think this is particularly widespread; most photographers would get upset at the Etsy mug just as much as the Flickr mug, and the artists in the linked articles are outliers.
If I'm wrong, and there is such a license, I'd be glad to be corrected on that point.
You're not wrong, but there is a simple reason there is no such license: it is completely impossible to create one.
It is simply not possible to define the difference between certain commercial uses of a work, and other commercial uses of a work. Not just legally, but conceptually.
Let's take your example. You have a license that allows wholesale reproduction in some commercial contexts - the cover of a magazine, the illustration of an article - but does not allow selling the image "as a picture."
Does this license apply to selling coffee mugs with that image on it? Mouse pads? T-shirts?
Or, let's say that some company creates a full-page ad for their product, similar in form to a magazine article, and uses the image to illustrate that. Is this allowed by the blanket license?
The plain fact is that these types of uses are the same. Not just legally, but theoretically - both kinds of uses are wholesale copying of the image, with the intent to profit, but none are simply selling the image "as a picture" (and nothing else).
It may be possible that some photographer is OK with all of the uses we just talked about, but is not OK with selling a print of the image. But I don't know of any - all are either OK with all of the uses and selling verbatim prints (so use a free-culture CC license), or none of them (so use a NC license). Creating a new license for these mostly-theoretical artists would be a solution to a problem that doesn't exist.
This is exactly why I say CC is a joke, and won't work in the long term, because the second a CC license is abused, copyright becomes the default, putting us right back to square one.
Creative Commons has been around since 2001, and is still going strong, with millions of people using CC licenses.
Whether thirteen years is "long term" is up to you to decide, but I'd say that it's by no means a "joke."
And I have no idea what you mean by "copyright becomes the default." Copyright law is the only way that CC licenses can be enforced. Creative Commons licenses don't (and can't) remove copyright protections, so it's already "the default."
Nobody is claiming otherwise... at least, nobody involved with Creative Commons. (ASCAP, of course, claims that CC is an evil pro-piracy anti-copyright monster, but they're only spreading FUD.)
Oh, and a piece of advice regarding the permission culture: if you want to remove this restriction, the only choice, and I do mean only choice, is to ignore copyright completely.
First, that's hardly the only choice.
Second, that may work for people who are mere consumers, but it won't work for artists who want to share their works, since there's no way to signify to the world that they should "ignore copyright" on those works.
Third, there is a big difference between getting rid of "permission culture," and getting rid of copyright entirely. Most people here (myself included) are probably copyright minimalists, but few are outright abolitionists.
Fourth, if you "ignore copyright completely," there's a big likelihood that you're going to get sued. This is especially true if you're using the work commercially.
Fifth, while we're on the subject of the law, simply ignoring copyright will simply give ammo to rights holders and their lobbyists to create disastrous "enforcement" laws like SOPA. Nobody needs that.
CC licenses - if used and understood properly - solve most of the "permission culture" problems, without any of the bad results.
The problem is that few people understand them. This is likely because few people understand copyright law in general - see e.g. those useless "Privacy Notice" posts that are making the rounds on Facebook.
So the natural question is: when will Gates admit the same is true for software too?
I'm sure he is simply waiting for the temperature in Hell to dip below the freezing point, for the Pope to renounce Catholicism, and for bears to start using indoor toilets.
Yes, Microsoft supports some open source projects... when it helps to lock people into their proprietary software. But let's not forget that the term "FUD" was popularized by Microsoft's behavior, expecially towards open-source software.
This is insanely sloppy and irresponsible reporting. The order above is denying summary judgement, meaning the case is still in motion practice. It hasn't even come close to trial yet. This is not a final opinion, this is not jurisprudence, this is not what the article says it is.
It's true that it's not a final judgement, but it is an order ruling that, as a matter of law, the Turtles do have a public performance right under New York state law.
In fact, the judge gave SiriusXM until December 5th to bring additional facts to the case (not legal arguments), and if not, she would issue a default judgement against them:
Furthermore, it appears to the Court that there are no disputed issues of material fact as to liability. Sirius is therefore ORDERED to show cause by December 5, 2014, why summary judgment should not be entered in favor of Flo and Eddie as to liability only.
In other words, the only thing that would save SiriusXM from liability is if there were "disputed issues of material fact" - e.g. if SiriusXM could show that they did not, in fact, play the Turtles' music.
This is about as close to a final judgement as you can get without actually being one.
If it is like Klobuchar's bill was, it will ONLY apply to those who SEND the streams, and NOT to those who VIEW them.
And...? That's the whole problem.
Indeed, any streaming law would have to target those who produce and send the streams, because courts in multiple jurisdictions have found that merely viewing a stream is not any form of copyright infringement.
Is it bad that I recognised only two names from the above list (Ed Felten and Bruce Schneier)?
It's bad that the two names didn't include Brian Kernighan (creator of AWK, co-author of "The C Programming Language" with C creator Dennis Ritchie) or Bjarne Stroustrup (creator of the C++ language).
If you've studied CS, you'll probably know Hal Ableson (co-author of the SICP book on Scheme), Peter Deutsch (who I assume is L Peter Deutsch, Smalltalk and Lisp implementation author, Ghostscript creator), or Mitch Kapor (Lotus founder, original member of the EFF, chair of Mozilla).
The others I had to look up, but they're all really heavy-duty programmers and technology experts. You'd be hard pressed to find a group more knowledgeable about programming anywhere.
Question. When this article (and the sources quoted) say API, do you really mean method signatures?
That is indeed what Oracle is suing Google over. Though, technically, they are claiming that the collection of method signatures is copyrightable.
They already sued Google over the implementation of those methods, but Google did a (mostly) clean-room implementation. Google was found to have infringed something like a dozen lines or so, and they settled for zero dollars in damages.
Here is the relevant part of the district court's ruling:
So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical.
This is the part that was overturned by the appeals court, and is the subject of the Supreme Court case.
Unlicensed sharing as piracy came along much much later.
Actually, that's not true, at least not in the colloquial sense.
The word "piracy," used as a term for unlicensed copying, predates even the Statute of Anne. The first time that it was used this way (to my knowledge) was in "The Wonderfull Yeare" by Thomas Dekker, in 1603.
As a matter of law, I think the judge made the right call. The rights that California granted under its statutes were pretty clearly designed to be expansive.
This is especially true when you compare California law to the state laws of other states. Most of those other states explicitly limit the rights in a sound recording to reproduction and distribution. (They were written at a time when "bootlegging" was common.) California, in contrast, does not. It's also one of the few states that don't have explicit carve-outs for radio and television performances.
Nor does the "rights remaining" argument make sense, since federal copyright law explicitly leaves all pre-1972 rights intact.
This is a major ruling, and if it stands, it will have a drastic effect on anyone who uses sound recordings in California. Because the ruling isn't limited to Internet performances. In theory, any sound recording rights holder can sue terrestrial radio stations, bars, restaurants, venues, and anyone else who has played that performance in public, at least in California.