The first thing to do is to convince the actual creators. Too many of them are very quick to defend all the various middlemen.
That's largely because those middlemen are the only people who have daily access to the actual creators, and are actively misleading them. Those same artists then echo these lies to other artists, which is exactly what the middlemen intended.
How many musicians have said something like, "selling a million records today is the equivalent of selling 5 million records a year ago?" (I've heard it from at least two newer bands.) The numbers may change, but the statement doesn't. That's one of those things that is obviously based on nothing at all, that was fed to them by someone who works for their label.
I agree that artists really need to be educated about what's really going on, but we need to get them to stop listening to traditional industry wonks, and the other artists who parrot them.
The term cloud computing to me is Dropbox, Apple's "Cloud syncing my calendar" stuff like that.
The issue is whether a transmission of a unique copy of content, to a single person, is a "public performance" solely because the relationship between the person and the entity doing the transmitting is a commercial one.
If that is the case, then Dropbox, Apple, etc. would be engaged in public performances when they allow you to stream content from your own Dropbox folders. Say, for example, that you put a movie in your Dropbox folder. Dropbox has a system that can transcode that movie to different codecs so that you can watch it on your phone or in a web browser (at school, work, whatever).
Under the networks' theory, you watching that movie would constitute a "public performance" on Dropbox's part. That would mean that Dropbox is infringing on the movie studio's copyright. In order to avoid liability, Dropbox would have to institute a DMCA notice-and-takedown process on the movies that you stream to yourself, or work out some sort of financial deal with the studios.
If Comcast can rebroadcast a TV show or movie to my home through their cable box, what is Aereo doing that is any different?
Comcast can't do that without paying the people who make the TV show or movie. That's because they do not simply rebroadcast TV shows (and especially not movies). They have to actively choose which stations are on their networks; and they do not stream each TV station's signal to a unique subscriber, but to multiple subscribers at the same time. That's what makes it a public performance.
Aero does not do that, at least as far as their antenna systems are concerned. Their antennas only pick up the signals that TV stations choose to broadcast over the air; and Aero can't pick and choose which TV stations their antennas pick up. Each antenna only transmits a single copy of the signal it picks up, to a single unique user.
The networks want to make "public performance" include transmission of a single copy to a single unique user. Hence the problems for Dropbox.
One of the many idiocies that Spangler repeats is the notion that the Aero ruling won't affect cloud services, because those services are "already protected from liability for copyrighted material illegally uploaded to their services under the Digital Millennium Copyright Act." (Others, like amateur-turned-professional copyright maximalist Terry Hart, have made the same argument.)
For one thing, he's wrong, because a ruling against Aero would create infringement where there currently is none. If streaming from the cloud to a single user is a "public performance," then it wouldn't matter whether the user acquired the content legally. The streaming itself - not the acquisition of the content - would infringe on the public performance right.
Second, even if he were correct, requiring DMCA protections for what are now private performances would be disastrous for cloud services and anyone who uses them. If they got DMCA protections, it likely wouldn't be under 512(a) ("Transitory Digital Network Communications"). The content is actually hosted on the cloud provider's network, so they would be protected under 512(c) ("Information Residing on Systems or Networks At Direction of Users").
This is one of the sections of the DMCA that falls under the "notice and takedown" provisions. This means that the only way cloud services would escape libaility is if they allowed copyright holders to issue takedown notices of users private files.
It also includes the controversial "red flag" sections that were recently (and solely) used to find the MP3Tunes guy personally liable for millions. There is absolutely no way a company is going to risk that sort of liability for cloud services, especially if their officers must operate under the threat of personal liability.
The only possible way that cloud computing can continue to operate is if they don't need DMCA protection in the first place. And it should be obvious why they shouldn't. As long as a single copy of a copyrighted work is streamed to a single user, both the legal history and common sense dictate that it shouldn't be a public performance.
(I posted this same comment on the Variety story, so we'll see if there's a response.)
First of all: no, I'm not going to exclude citing Google when they explain how their own services work, just because you're a hatemonger. I won't avoid getting information from the horse's mouth merely because you bet on the wrong horse.
"You mean those links that come up in searches that almost nobody does"
But you can do this yourself with Google Trends, which shows the number of times people searched for a particular term. Search for some content, then search for that same content with the phrase "torrent" (or whatever) appended. The volume of the second search will inevitably be much, much lower than the first.
"for which Google does not make any money?"
Non Techdirt/Google cite?
Google makes its search engine money from AdWords. This is how AdWords works: 1. Companies bid for keywords 2. People search with those keywords 3. In Google's search results, advertisements are displayed from the winners of the bids of those keywords 4. If a user clicks on a winner's ad (a "clickthrough"), the company pays Google according to their bid
For example: I do a search for "car insurance boston." At the top of the page, there are links saying "Liberty Mutual Insurance® - libertymutual.com," "$19 for Car Insurance? - GEICO.com," and "Progressive Car Insurance - Progressive.com." Down the right hand side, there are links saying "Allstate Car Insurance," "Amica Car Insurance," and a bunch of others. All of these are clearly marked as ads.
These are the links that AdWords generates, and they are how Google makes the vast majority of its money, and how it makes all of its money from search.
This tells you two things: 1. If no sponsored ads come up on Google after you do your search, Google does not make any money from that search 2. Companies pay for clickthroughs, not views, so if nobody clicks through on any of those ads, Google does not make any money from that search
So, since I didn't click on any of the links above, Google didn't make money from the search I just did. (And in fact, I usually don't even see those ads, since I have an ad blocker enabled on my web browser.)
" royalty rates that YouTube negotiated with PRO's like ASCAP and BMI"
Non Techdirt/Google cite?
How about from ASCAP itself? From its press release about the new synch royalties:
Keep in mind that this agreement does not extend to any right of public performance. In other words, this is completely separate from ASCAP performance royalties from YouTube. ASCAP publishers that choose to participate are still eligible for ASCAP performance royalties based on YouTube streams. [Emphasis in original.]
as the Wall Street Journal first reported in 2011, YouTube channel partners can collect up to 55% of revenues from every monetized view on the site, with a sizeable chunk of that 55% going directly to the owners of the song’s publishing and masters.
What I don't understand here is that there is no potential way to create a competitive market that would be in the interests of anyone in the creative marketplace. Competition would only benefit those who seek to pay less for content.
You're forgetting that "those who seek to pay less for content" are just as much part of the "creative marketplace" as copyright holders.
In any case, exactly the same thing could be said for any form of labor. "Competition would only benefit those who seek to pay less for labor." If you believe that, then you are arguing against capitalism itself. (You can do this if you wish, just be aware that this is what you are doing.)
There are not two or three of every artist, there is only one. By definition, that artist is his (or her, or their) own monopoly.
Not exactly. "By definition," an artist has a monopoly on his (or her, or their) labor. They do not, "by definition," have a monopoly on the products of their labor - that is, on copies of their songs.
That is why copyright exists in the first place. Congress was granted the ability to create copyright laws precisely because artists do not, by definition, hold a monopoly on their published works. Copyright is that monopoly, created out of whole cloth by Congressional statutes.
Competitive markets assume that two or more suppliers can provide the exact same product, and they compete on price. Music is a monopoly at it's very root. You can select other artists, but you cannot select the same artist at a lower rate.
Were it not for copyright laws, you could do exactly that. Two or more suppliers could provide exactly the same product (a copy of a song), and they would compete on price.
Essentially, there is no such thing as a "competitive market" when copyright is involved. This is actually made very explicit in the ruling:
Section IX of AFJ2 requires the rate court to set a "reasonable" fee for a requested license, but that term is not defined in AFJ2. Governing precedent dictates, however, that in determining the reasonableness of a licensing fee, a court "must attempt to approximate the 'fair market value' of a license -- what a license applicant would pay in an arm’s length transaction." MobiTV, Inc., 681 F.3d at 82. "In so doing, the rate-setting court must take into account the fact that ASCAP, as a monopolist, exercises market-distorting power in negotiations for the use of its music." The Second Circuit has recognized that, because music performance rights are largely aggregated in the PROs which operate under consent decrees, "there is no competitive market in music rights." ASCAP v. Showtime/The Movie Channel, 912 F.2d 563, 577 (2d Cir. 1990). Consequently, fair market value is a "hypothetical" matter. In such circumstances, "the appropriate analysis ordinarily seeks to define a rate or range of rates that approximates the rates that would be set in a competitive market."
The real competitive market here is the companies like Pandora, Sky.FM, and other streaming music companies. They are the ones bidding to obtain content.
They are competing for more than that. They are also competing for advertising dollars and user subscriptions. And they are not just competing with other streaming services, but with terrestrial radio as well.
The difference between that market and the market in which rights holders operate is night and day. If the music market was truly competitive on the rights holders' end, then rights holders would compete against each other to provide Pandora, Sky.FM, IHeartRadio, and so on with content. And they would lower their rates due to this competition.
That clearly didn't happen here, and it generally doesn't happen among rights holders. They have a long and sordid history of forming cabals.
You cannot force a monopoly to compete with itself. That would be silly.
You can, however, bust that monopoly. That's what the Justice Department was going to do to ASCAP and BMI in the 1930's and 1940's. Instead, as a settlement, they created the consent decrees that both PRO's currently operate under.
As for ASCAP themselves, I have a tiny bit of sympathy for them. If they had signed a deal with exactly the same royalty terms as the court set, they would have gotten sued by both Sony and Universal. The sad, sordid story is in the ruling; it's worth a read.
Pandora bought a radio station just so it could then qualify for the same rates terrestrial radio stations pay. It was a direct result of the ASCAP/SONY fight. This is why the rates decreased from what Pandora had agreed to before ASCAP reneged on the deal.
That had nothing to do with the final rate that the court decided. If it had, Pandora would be paying 1.7%, the same rate that IHeartRadio pays, and not the higher 1.85% rate. (And, in fact, that purchase hasn't gone through yet - ASCAP opposes the purchase). The judge rejected that rate ("The answer to that question, while close, is no") because that rate applies to Clear Channel generally, not just its internet streams (interactive or not), and the internet portion of its business is tiny in comparison to terrestrial radio.
No, the rate is set because that's the rate that Pandora has historically been paying since 2004. It's not paying the higher rates because those rates were not negotiated fairly, and Pandora was essentially blackmailed into accepting them.
According to Pandora, ASCAP had already made an agreement with them that increased the royalties ASCAP received:
In November of last year, following a lengthy negotiation, Pandora agreed with ASCAP to a new rate, an increase over the prior amount, and shook hands with ASCAP management. Not only was our hand-shake agreement rejected by the ASCAP board, but shortly thereafter we were subjected to a steady stream of "withdrawals" by major publishers from ASCAP and BMI seeking to negotiate separate and higher rates with Pandora, and only Pandora. This move caused us to seek the protection of the rate, also recently negotiated, enjoyed by the online radio streams of broadcast radio companies. It’s important to note that these streams represent 96% of the Internet radio listening hours among the top 20 services outside of Pandora (talk about an un-level playing field). We did not enter this period looking for a lower rate – we agreed to a higher rate. But in a sad irony, the actions of a few small, but powerful publishers seeking to gain advantage for themselves has caused all songwriters’ royalties to go down.
Additionally, who pays for the legal fight? The artists. The costs for the legal fees that ASCAP paid come directly out of artists' pockets, in the form of "administration costs." Those costs rose this year to about 14% of the royalties ASCAP collects, and the increase is generally attributed to the legal fight with Pandora.
So, congratulations, ASCAP. Thanks to you and the major-label publishers, you've just wasted artists' money to make artists' royalties go down.
Or do you mean the ContentID system, where rights holders keep more than half of the advertising income on YouTube videos, and which Google spend over $50 million developing, despite the fact that they didn't have to by law?
Yeah, they're really "screwing artists."
It's hilarious that you tech dbags think anyone is still believing your bullshit.
It's hilarious that you big media "dbags" think anyone ever did believe your bullshit.
Here you go stupid, the judge (the one whose opinion actually matters disagrees.
Just because I disagree with the judge's stupid opinion does not make me stupid. Also, we'll see what happens on appeal. I predict that this particular part of the ruling will be overturned.
The largest difference is that CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace.
The judge doesn't seem to realize that Amazon and eBay do almost exactly the same thing. Amazon, for instance, directly sells third-party products to online shoppers, using Amazon's own shipping apparatus. eBay does something similar with their eBay Store service. Yet the court rulings that the judge cites in his opinion do not strip DMCA protections from either Amazon or eBay for these reasons.
Please note that I am disagreeing with the judge about whether Cafe Press is eligible for DMCA safe harbors. Whether they actually meet that eligibility is a separate question. And, of course, lack of DMCA safe harbors eligibility does not mean that Cafe Press is necessarily liable for infringement.
Actually, it's the Silicon Valley crowd acting as usual giving as little to the artists as possible. And before you raise the usual blather about the major record labels sharing only a small percentage, it's dramatically larger than the percentage shared by the tech world.
Provably false. In fact, that's part of what this lawsuit was all about.
The rates that Pandora paid (and, now, will continue to pay) are higher than the rates that traditional radio stations pay, for streaming on the Internet.
Pandora's rate is 1.85%. IHeartRadio, run by Clear Channel (the owner of the majority of radio stations), pays just 1.7% for its Internet streams.
And as far as comparison with "the major record labels:" No, they do not share a "dramatically larger" percentage of their income. Pandora pays more than half their income to sound recording rights holders. Major labels pay around 15% of the income from records, to the artists (depending upon contract). And that's only after the artists have paid back the recording costs, packaging costs, some of the marketing or video, etc.
So, no. Pandora pays a dramatically larger percentage to artists than any traditional label or publisher.
Uh...there is good reason why more than just an email address suffices for DMCA compliance. Hard to hold a site accountable when all you have is an email address that may be ignored without any immediate repercussions.
I meant for sending notices. If a site is ignoring emails, then an address isn't going to help. It's just as easy to ignore a paper letter as it is to ignore an email. The immediate repercussions are exactly the same either way.
I agree that there may be good reasons for providing a physical address, but those reasons are only applicable in situations where rights holders need to take legal action against the sites. If we get to that point, then we're a long way from DMCA compliance anyway.