Great to see the Judge really understanding the statute and the protections given to the composition vs the recording. That was the point entire time. The songs "feel" similar. However, copyrighting feel is akin to copyrighting "disco"or "funk" or songs with bongos. What is most bothersome is that the M. Gaye tune is in a minor key and "Blurred lines" is in a major key. That is why the estate is battling like this because, music theory wise, the songs are not the same.
To imply I left details out purposely is amusing. My purpose for placing the performance royalty rates was to show how small they actually are. Terrestrial radio does not pay performance royalties. And, as I stated earlier, many countries do pay performance rates for terrestrial radio. So, for the author to imply it is a practice that is dishonest is misguided. The rates are unsustainable in that many artist just won't license their music or license very few songs to a streaming service(i.e T, Swift). The point has been made that a spin on terrestrial is more valuable than on internet. I agree. However, I would argue that in many instances, one spin reaches more than one person. To ignore many small businesses use streaming services, artificially devalues a spin on the internet because the number of listeners is inaccurate.
"wouldn't an artist want the streaming service to pay more?"
And this attitude is exactly the problem. For starters, of course artists want more money.
The argument of Swift and many others is that the service cannibalizes record sales. That is why they might want more. I suggest to any artist. Don't release a new record to a streaming site until it's sales run has completed. Why should Swift or any other artist wait 5,10,15 years for the monetization from streaming services when they can just hold it initially from the site, increasing demand for the purchase of the music?
"All these companies knew this was a gray loophole that copyright holders would likely challenge."
I disagree. They were following the policy set for decades. However, it is supply and demand. If these services really want the music then they will pay. If they don't then they won't. It should be a simple cost benefit analysis by the streaming services. I am sure some will be pro-active.
I can only use myself and my buying habits for this argument. However, I don't believe I am alone in this behavior. Some artists' music I buy. Others I only stream. As for profitability, for Swift it was a no-brainer. And I believe her first week sales speak for themselves.
I think what is more important is that a subscription to a streaming site almost negates any reason to buy a record or song. So if the listener is not going to buy it because of the streaming site, then the low royalty rate they pay adds insult to injury.
I believe we are in agreement that the price of a CD was inflated and artificially high, and the collapse was over due. The unsustainable royalty rates for streaming comes when an artist realizes,(like Taylor Swift) " wait with the royalty rates streaming services are paying, they are essentially giving my music away for free and destroying my album sales which, in this day and age is hard enough as it is. The move by Spotify to work counter to her efforts selling her new record made her pulling her catalog the only logical end result.
Interesting you would site the number of spins Taylor Swift was receiving before she released her record, that is the point. She pulled her catalog because she asked not to have her entire record on the free version of the site during the record's initial release and Spotify said no. So she pulled her music from the site entirely. This move aided in her in having the best first week sales figures for a record since 2002. Let us not lose sight of the initial purpose of all radio, promote and sell records. If people aren't buying records (which many streaming services subscribers don't) then wouldn't an artist want the streaming service to pay more?
For 1,159,000 spins, Pandora paid a total of about $1,370.[http://theunderstatement.com/post/53867665082/pandora-pays-far-more-than-16-dollars] Streaming services pay less then other forms of radio even with the performance royalty and the statement "They'd already convinced Congress to force internet streaming sites to pay compulsory performance royalties (at insanely high rates),"Just shows the author's inherent bias. Other countries pay performance royalties. Is there some reason the U.S. should not? These are the "insanely high" performance rates for the 3 different webcaster types:
Broadcasters Per Performance Royalties
2011 – $.0017 per performance 2012 – $.0020 per performance 2013 – $.0022 per performance 2014 – $.0023 per performance 2015 – $.0025 per performance
Statutory Webcasting Per Performance Royalty Rates
2011 – $.0019 per performance 2012 – $.0021 per performance 2013 – $.0021 per performance 2014 – $.0023 per performance 2015 – $.0023 per performance
Pureplay Webcasters Per Performance Royalty Rates
2011 – $.00102 per performance 2012 – $.00110 per performance 2013 – $.00120 per performance 2014 – $.00130 per performance 2015 – $.00140 per performance
The amount streaming services pay is well documented as unsustainable and many artist will continue to pull their catalogs in Taylor Swift fashion if they don't increase. It is interesting to imply that content is asking too much without exploring whether streaming services are paying too little.
Though I often disagree with author on many things copyright, his analysis here is spot on. This was a waste of a lot of time and money when the underlying issue had previously been decided. The same rationale applied to hair care products purchased abroad and textbooks printed for foreign markets has resulted in the same outcome.
I'd say 1.287 million first week sales. I applaud the move. If they aren't going to pay realistic royalty rates, other artist will follow. "I'm not wiling to contribute my life's work to an experiment that I don't feel fairly compensates the writers, producers, artists, and creators of this music," Swift told Yahoo! this week. "And I just don't agree with perpetuating the perception that music has no value and should be free." A fraction of a cent per play is not sustainable and does not compensate the artist. Saying they (Spotify) pay most of their money to artist while refusing to generate more income(ads, just like terrestrial radio) on a free service is misleading at best. It also highlights the flaw in the business model.
I always felt the argument against the hopper was weak. The hopper in function seems like an automated programmable digital VCR and the courts decided the non-infringing validity of the technology years ago.
I agree with much of the authors analysis. What I found most disturbing about the original ruling was percentage analysis used by the judge to come to a fair use determination. A percentage to determination is not in the copyright statute and I felt was judicial activism in the extreme.
"it's another win for transformative creations, even if it's one that is skewed to statutory factors rather than the concept of fair use itself."
Fair Use is defined by statute under U.S. law. The decision should be skewed to statutory factors. To use an arbitrary concept of fair use (in that each has there own definition if the statute were not used) would not instill predictability in the courts. However, the comments about where the image was appropriated sound like someones personal feelings and is definitely not in the statute. Nor does the new work having commercial value bar a fair use defense.
Sorry folks. "Whatever" is totally right on all counts and most still are missing the point. A recording is the preservation of a performance. The argument is, no one performs anything exactly the same and therefore that performance is unique and can be copyrighted. Anyone can sing a song but no two people will sing it exactly the same way. Perhaps if many of you view a sample as using someone's unique performance it might make more sense that you would compensate someone for using a recording of their unique performance.