Not according to Community for Creative Non-Violence v. Reid
That case dealt with whether the person was a subcontractor or an employee. This would determine if the work was a "work for hire" or not. The ownership of the equipment was only used to determine that relationship, and it was only one factor out of many. And, in fact, it was used as evidence against a "work for hire" relationship (since the subcontractor used his own equipment).
So, no, merely owning the equipment does not confer any sort of copyright ownership. It has absolutely no bearing on who would ultimately hold the copyright to the photo, unless Slater claims that the monkey was "an employee [working] within the scope of his or her employment" (17 USC 101).
For example, if I shoot a photo for TechDirt and TechDirt pays me and also owns the camera, they (generally) own the copyright.
No, they don't. You would own the photo. Techdirt would only own it if you signed a contract with them (before taking the photo) saying that it's a work for hire.
(You could, of course, assign the copyright to them at any time, but you would still be the original author under copyright law.)
See, for example, this interview with Carolyn E. Wright, LLC:
Q: Who owns the copyright in a photograph once it is taken?
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the "work-made-for-hire"(also known as "work for hire") category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer - an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
Prove there's a god and I'll give her the copyright.
If something is of value to human culture, it must be owned by the being that created it.
Therefore, there must be a God, otherwise the picture would be owned by nobody. QED.
It's called the "IP-leological Argument." I think it was first proposed by Thomas Aquinas in his "Summa IPologica" (c. 1274). It's been making a resurgence lately due to proponents of "Intelligent Design Patents."
... "therefore it doesn't matter if you work against print books" seems to be your argument. By the same logic, I should kill you personally "because you're going to die eventually anyway, and you're no particular use to *me* anyway."
Yeah, because choosing to buy an e-book rather than a print book is exactly like murder.
The plain fact is that customers - who have every right to choose what to buy and what not to buy - are moving towards e-books, and those that aren't are staying with paper books for reasons other than price. I'm not saying that it doesn't matter if you work against print books; I'm saying that consumers are choosing e-books, and either you accept that they're your market, or you don't deserve to stay in business.
My personal anecdote is that a bookstore is a "not-bad" place to look for new titles, and that a web page is very poor for the same task.
Well, then, it doesn't matter how e-books are priced, does it? You're going to the "not-bad" place to look for new titles either way.
Other consumers may have different tastes, and maybe not enough find having a "not-bad" place to look for new titles doesn't trump the lower market value for e-books. Tough. Your tastes can't dictate the market.
And the development costs are amortized in individual sales, same as they are in books. Guess what? The development costs of books are proportionally higher, and the volume of sales lower.
Of course they'll be "proportionately" higher if you price e-books high enough. There will be less demand at that price, therefore a lower volume of sales. That's how price elasticity has always worked.
If (Volume of books sold) * (price per unit) < (development cost), it's a loss for the publisher, period.
Right, but if you lower the price, you'll increase the volume, so you'll end up making more money. Again: that's price elasticity. Selling 175,000 e-books at $9.99 each will make you more money than if you sell 100,000 e-books at $14.99.
If $9.99 is the "high end," it just means that they'll sell many more books at the "high end" than they're selling right now.
And while lower prices often lead to higher volumes, not only is that not guaranteed, there's an upper limit to the number of customers. You do a lot of hand waving saying "it'll be all right" but I'm not seeing citations to numbers drawn from experience.
If there weren't an upper limit to the number of customers, then prices would be infinitely elastic. There isn't, so of course there's always going to be a "sweet spot" that maximizes revenue.
The numbers that Amazon quoted are taken from their own sales records, so those would be "numbers drawn from experience." On the other hand, I've never seen anyone who actually quoted numbers when claiming book prices should be higher. The best they can come up with is "lower prices = less profits," which is simply not true, and never has been in any industry.
Yes, they are saying that "as a general rule, the upper bound will be $9.99".
You do know what "upper bound" means, right? It means "maximum." It does not mean "as a general rule." That would be "average" (more precisely, "weighted average" or "expected value").
Interesting that you make this argument along with arguing that lower prices will increase volume. If they're complaining, you'd think it was that they were getting less money, in an absolute sense.
It was just a guess. Authors may be getting less money in an absolute sense, but not because of Amazon. (For example, some publishers pay lower royalty rates for e-books than they do for paper books.)
It could also be that authors are complaining because they buy into the publishers' claims that lowering e-book prices will cannibalize paper-book sales. Well, guess what? Sales of paper books are already being cannibalized, and there's no way to prevent that.
Or it could be that authors are making the same mistakes you are. They look only at income per copy, see that they're making less per copy on digital sales, and think that they're being ripped off somehow.
You call out ignorance of basic economics. But what I see you arguing is theoretical economics, rather than practical applied economics based on existing sales data.
There is no such thing as "theoretical economics," really. It's an applied science, and economic theories are based on empirical sales data. If you want examples, open up any economic textbook and read about them.
In the e-book space, Amazon has already given its numbers based on their own sales figures: "We've quantified the price elasticity of e-books from repeated measurements across many titles. For every copy an e-book would sell at $14.99, it would sell 1.74 copies if priced at $9.99. So, for example, if customers would buy 100,000 copies of a particular e-book at $14.99, then customers would buy 174,000 copies of that same e-book at $9.99. Total revenue at $14.99 would be $1,499,000. Total revenue at $9.99 is $1,738,000."
O’Reilly had a similar experience when they released a $25 book as a $5 iPhone app: How E-Books Make (A Lot Of) Cents. There are probably more case studies, if you're not too lazy to Google.
Having read it, I can certainly dismiss it - because his arguments are wrong. Let's take a look:
If you entertain the notion that Amazon is just 30% of the market and that publishers have other retailers to consider — and that authors have other income streams than Amazon — then the math falls apart. Amazon’s assumptions don’t include, for example, that publishers and authors might have a legitimate reason for not wanting the gulf between eBook and physical hardcover pricing to be so large that brick and mortar retailers suffer, narrowing the number of venues into which books can sell.
The plain fact is that most people are moving towards e-books no matter what. Physical sales are going down, because the demand is going down, regardless of e-book prices. On the other hand, those who buy physical copies will likely pay more for them anyway - they're already paying more than they would for an e-book, even if prices remain exactly the same as they are now.
In other words, the gulf in prices is not what would drive down sales of paper copies. So the only question is how much money authors want to make from the dominant format, meaning e-books. And by Amazon's own data (which is backed up by basic economic principles widely known for many decades), lower prices will result in higher profits.
Incidentally, Amazon may be only 30% of the book market, but e-books in general have a far, far higher market share than that. In nearly all book categories (and all fiction categories other than graphic novels), e-books have a much larger share of book sales than paper copies. (See e.g. BISG Report – A Few More Ebook Stats.) If Amazon doesn't lower their prices, then Kobo, Sony, Apple, and Barnes & Noble eventually will, for exactly the reasons that Amazon said.
Amazon’s math of "you will sell 1.74 times as many books at $9.99 than at $14.99" is also suspect, because it appears to come with the ground assumption that books are interchangable units of entertainment, each equally as salable as the next, and that pricing is the only thing consumers react to.
Except Amazon is not making that assumption. In fact, they say exactly the opposite: "So, for example, if customers would buy 100,000 copies of a particular e-book at $14.99, then customers would buy 174,000 copies of that same e-book at $9.99."
This is how basic price elasticity works, and basic economics predicts that goods that are less necessities will be more elastic. This has been shown to be true for many, many years. It is in total agreement with data collected across other artistic industries, such as the video game industry.
This is where many people decide to opine that the cost of eBooks should reflect the cost of production in some way that allows them to say that whatever price point they prefer is the naturally correct one. This is where I say: You know what, if you’ve ever paid more than twenty cents for a soda at a fast food restaurant, or have ever bought bottled water at a store, then I feel perfectly justified in considering your cost of production position vis a vis publishing as entirely hypocritical.
Ironically, this goes against his point. The production costs associated with the fountain sodas or bottled water are much higher than they are for e-books. The costs of the products themselves are much higher - both for fixed costs (factories, land, bottling machinery) and per-unit costs (shipping, labor, packaging, etc). And people pay for these things because they are convenience; and unlike convenience on the Internet (which is essentially free), that convenience also has higher costs (store rents, labor costs, etc). Yet people pay far, far less for a soda at a fast food restaurant, or for bottled water at a store.
Unless he's ever paid $14.99 for a soda at a fast food restaurant, or more than $9.99 for a bottle of water at a store, then I feel perfectly justified in considering his cost of production position vis a vis publishing as entirely hypocritical.
I’ve said this before and I’ll say it again: I think it’s very likely that if $9.99 becomes the upper bound for pricing on eBooks, then you are going to find $9.99 becomes the standard price for eBooks, period, because publishers who lose money up at the top of the pricing scale will need to recoup that money somewhere else, and the bottom of the pricing scale is a fine place to do it.
First: if he'd have paid attention, he would have noticed that publishers would make money "up at the top of the pricing scale." So his whole assumption is invalid.
Second: publishers that price books at "the bottom of the pricing scale" are doing so precisely because the bottom is where they make the most money regardless. If publishers could make more money by raising prices at "the bottom," they would have done so already. So that argument is also invalid.
Third: Amazon explicitly said that they don't think $9.99 should be the upper bound. From their forum announcement: "Is it Amazon's position that all e-books should be $9.99 or less? No, we accept that there will be legitimate reasons for a small number of specialized titles to be above $9.99."
I think Amazon taking a moment to opine that authors should get 35% of net revenues from publishers for their eBooks is a nice bit of trying to rally authors to their point of view by drawing their attention away from Amazon’s attempt to standardize all eBook pricing at a price point that benefits Amazon’s business goals first and authors secondarily, if at all.
Or, it could be Amazon drawing attention to the fact that authors blame Amazon for low payouts, while the actual reason is that the publishers keep the money that Amazon gives them. (This is essentially how it works in the music biz.)
And it's really hard to argue that higher sales don't benefit Amazon and authors equally, if both make their money as a share of the income (which is the case). If you earn 35% of a hundred thousand in e-book sales, then it makes no difference if you get a hundred thousand from 10,000 sales at $10, or from 100,000 sales at $1. So, if the price elasticity benefits Amazon, it benefits authors as well.
The other type of revenue sharing is a flat per-book fee, like the royalty rates in streaming music. But if that's the case, then authors would benefit from price elasticity more than Amazon itself would.
Either way, higher sales due to price elasticity benefit authors at least as much as it benefits Amazon.
I will grant you this: his position certainly isn't "an example of reflexive hatred." In his other posts, he's made it clear that he works with Amazon, and doesn't dislike them in particular. It's simply an example of being ignorant of basic economics, which unfortunately seems to be endemic to a lot of artists.
Re: Re: Some extra numbers regarding lower price points
I never even bought an e-book until I found one in that price range, and I have only bought ones in that range or lower ever since.
I have bought more expensive e-books, but they were all textbooks for college courses. Of course, given how much publishers can blackmail students for high prices, even a $50 e-book is a steal in those cases.
(The real scam is "access code courses," where the publisher sets up coursework online, and students pay for semester-length access codes with the book. Of course, these are non-transferable, so bookstores never buy back these books - and the publishers also eliminate resale values and the used book market.)
If you get rid of copyright, you will have no rights to a work.
This is inaccurate. If you get rid of copyright, the copyright holder will not have the exclusive right to the activities in 17 USC 106. That is, the copyright holder will lose the right to exclude those rights from others.
But you (and everyone else) would have the right to do all of the things you've just described. We know this to be true, because we can do all of those things with works in the public domain. The public domain is exactly "getting rid of" a copyright on a work.
I've looked through this before. And the "almost twice the number of countries" statistic is entirely correct.
What I find even more interesting is that there are only four countries with a longer copyright term: Columbia, the Ivory Coast, the Grenadines, and Mexico.
Here's another thing I've always found very interesting. In countries that have "moral rights" ("droit d'auteur"), the lengths for moral rights are almost always longer than the "economic rights" (the rights that we have in the States and Britain). Many of those terms don't expire at all. Of course, those only cover things like the right to attribution.
Apologies for the long reply, but this is a subject that I am very very concerned about.
First of all, I'm absolutely loving the fact that this tactic backfired. Allowing partial withdrawals from ASCAP or BMI would be catastrophic for the artists they represent. That's why actual songwriters (as opposed to the major publishers) were opposed to it.
Here's the relevant passage from the ASCAP rate court decision (which should really be read in its entirity):
Songwriters, and at least some independent music publishers, were concerned about the damage that might be wrought from the Compendium modification and the partial withdrawal of rights from ASCAP. Songwriters trusted ASCAP to account reliably and fairly for the revenues ASCAP collected and to distribute the portion of revenues owed to writers promptly and fully. Songwriters were concerned about the loss of transparency in these functions if publishers took over the tasks of collection and distribution of licensing fees. They were concerned as well that the publishers would not manage with as much care the difficult task of properly accounting for the distribution of fees to multiple rights holders, and might even retain for themselves certain monies, such as advances, in which writers believed they were entitled to share. Overall, they were concerned about the increasing concentration of the publishing industry and the willingness by some, particularly Sony, to engage in direct licensing outside the framework of the PROs. These concerns ripened as the writers learned that Sony intended to follow EMI’s lead and take advantage of the Compendium modification to partially withdraw from ASCAP.
Some of this tension is captured in an email sent by ASCAP- member and composer [REDACTED] to LoFrumento on September 6, 2012. In that email, [REDACTED] explained the conflicts that he perceived between the major publishers and writers of ASCAP:
[W]riters and (the major) publishers differ. Writers, I believe are concerned with the health and well being of ASCAP. As small business owners we are dependent upon ASCAP for our success.... Today’s publishers (the majors) are executives not owners. Their focus is on the well being of their company, their investors and their own perceived performance all of which is reflected in the quarterly bottom line. In their vision of the future, ASCAP plays an inconsequential role.
[REDACTED] was not alone among writers in his concern about the publishers’ plan for new media withdrawals. Writer [REDACTED] wrote in an email of August 28, 2012 to LoFrumento, that there was a "disintegration of trust between writers and publishers," and that "the new breed of publishers was understood by writers to be motivated primarily by profits, and that writers would not look positively on ASCAP becoming a clearinghouse for processing direct licensing royalties." [REDACTED] concluded by expressing his opinion about "the vital role ASCAP plays in protecting writers from the shark-infested waters of the music business."
Now to Jon's comment.
BMI didn't love the withdrawal but it was better for them than a wholesale withdrawal by EMI as the first mover. ASCAP had to follow suit to allow partial withdrawal.
I haven't read the BMI ruling (couldn't find a copy online), but in ASCAP's case, it was even worse than that. The major publishers were so devoted to being monopoly players, that they threatened not just to leave, but to sue ASCAP if it closed a deal with Pandora:
[ASCAP CEO John] LoFrumento decided to reject the license that his team had negotiated with Pandora. He knew that either way he faced litigation. He knew that if he executed the license, Sony would sue ASCAP. Sony had threatened to sue ASCAP in the event any license agreement with Pandora that encompassed the Sony repertoire was executed before the end of 2012. LoFrumento advised the Law and Licensing Committee of ASCAP’s Board of Directors on December 12 that he intended to reject the terms Pandora and ASCAP had negotiated. Everyone understood that that meant that the rate court proceeding would go forward. None of the Committee members asked for a description of terms Pandora and ASCAP had negotiated or to discuss LoFrumento’s decision. Sony had also notified ASCAP that it might not use ASCAP for administration services if ASCAP issued a license to Pandora. [...]
The partial withdrawals of new media rights by major publishers, who collectively controlled about 50% of ASCAP’s music, threatened to make ASCAP a weaker organization. Sony and UMPG had also made clear to LoFrumento that they wanted to negotiate direct licenses with Pandora and opposed ASCAP entering into a final license with Pandora. There was, of course, a chance that by placating the major publishers, they might later exercise their option to rejoin ASCAP for all purposes. LoFrumento also had to consider the writers who had become restive and were doubtful about the supposed benefits of the publisher withdrawals. In the midst of all of this, LoFrumento cast the lot of ASCAP with the withdrawing major publishers and chose to let the rate court decide the dispute between Pandora and ASCAP. On December 14, ASCAP surprised Pandora and rejected the terms they had negotiated.
However, I don't see any indication that the BMI withdrawals had anything to do with it. Like I said, I don't have a copy of the BMI decision, so I don't know the dates; but I would guess that the major publishers had been blackmailing both PRO's simultaneously.
All publishers are asking for is a market rate.
Yes: they are asking for a completely unfair market rate. One that is set exclusively by the publishers, and that Pandora (and others) have absolutely no chance to negotiate.
More quotes from the ASCAP rate court decision:
In an email of October 4, Sony (which by that time controlled EMI) refused Pandora’s request to disclose the terms of the Pandora-EMI license to ASCAP.[...]
The first substantive discussion between Pandora and Sony occurred in a telephone call on October 25 between Sony’s Brodsky and Pandora’s Rosenbloum. Sony promptly set the tenor for the negotiations with a not-too-veiled threat. Brodsky stated "[i]t’s not our intention to shut down Pandora." In his many years of negotiating music licenses, Rosenbloum testified that had never before heard such a threat. In some ways, this threat put on the table no more than what was obvious. Sony’s works were already being played on Pandora; they were incorporated in the MGP. Unless Pandora could do without those works and remove them from its repertoire by January 1, Pandora had to obtain a license from Sony or face crippling copyright infringement claims. Sony was in the driver’s seat and the clock was ticking. [...]
Pandora’s first request for the list [of Sony/ATV compositions] came on November 1, 2012, in an email from Rosenbloum to Brodsky. Rosenbloum advised Brodsky that:
I wanted to follow up with you about our conversation last week regarding Pandora. As I mentioned, given the uncertainties around Sony/ATV’s and EMI’s position with respect to webcasting rates, Pandora has decided that it needs to be prepared to take down all Sony/ATV and EMI content in the event we are unable to agree on rates by the end of this year. In that regard, please let me know if you can provide us with an electronic listing of Sony/ATV and EMI repertoire. On a related note, as the end of the year is rapidly approaching, we look forward to receiving a rate proposal as soon as possible (to the extent that EMI and Sony/ATV are still interested in moving forward with a direct license agreement).
Brodsky received this request for a list of the Sony works, but never responded. In their telephone conversations during the month of November, Rosenbloum reiterated the request for a list of works on several occasions but never got any response. Rosenbloum repeated the request once more at a breakfast meeting that he and Pandora’s Kennedy had with Sony’s Brodsky and Bandier on November 30. Again, Sony did not respond. [...]
Sony had a list readily at hand, since the Compendium required that a publisher and ASCAP work together during the 90 day period before the effective withdrawal date to confirm precisely which works were being withdrawn. [...] As Brodsky recognized in his testimony, the list was "necessary" to Pandora in the event the parties did not reach a deal. Sony decided quite deliberately to withhold from Pandora the information Pandora needed to strengthen its hand in its negotiations with Sony. [...]
On Friday, December 14, with two weeks left in the year, and one week remaining before the music industry took its annual holiday break, ASCAP notified Pandora that it would not execute the agreement they had negotiated. The following Monday, Pandora urgently made two renewed written requests for the list of Sony’s works, one to Sony and another to ASCAP.
Since the repeated requests from Pandora’s outside counsel Rosenbloum had gone unanswered, Pandora’s general counsel Delida Costin sent her own email to Brodsky on December 17 requesting the list of works. Not wishing to empower Pandora, Sony never responded.
That same day, Pandora also asked ASCAP for the list of Sony works in ASCAP’s repertoire. It would have taken ASCAP about a day to respond to Pandora’s request with an accurate list of the Sony works. But, ASCAP, like Sony, stonewalled Pandora and refused to provide the list. [...]
ASCAP ultimately decided to contact Sony to see if it would give its permission to share the list of works. On Wednesday, December 19, ASCAP notified Sony of Pandora’s request and that it would be providing Pandora with the list of Sony works that ASCAP had previously given to Sony in connection with its withdrawal of rights. Not surprisingly, given its own refusal to share the list with Pandora, Sony did not give ASCAP permission to provide the list. ASCAP personnel shared their amusement with each other over Sony’s decision to withhold the list from Pandora. In one email, DeFilippis asked ASCAP’s counsel Richard Reimer "Why didn’t Sony provide the list to Pandora," to which Reimer replied "Ask me tomorrow," to which DeFilippis responded "Right. With drink in hand." [...]
The terms of the Pandora license with Sony were negotiated in four business days during the single week that ran between ASCAP’s rejection of the Pandora term sheet and the start of the holiday break. [...]
By mid-January 2013, and despite the existence of a confidentiality agreement, Sony leaked the key terms of the Pandora license to the press. [...] One article reported: "[m]any other publishers were rooting for Sony to deliver a higher rate . . . so that if [the PRO’s] deal with Pandora heads to rate court, the judge will consider the Sony rate the market rate and raise performance royalties accordingly." The press coverage focused on Sony’s leverage in negotiations due to its outsize market power: "Look a little closer, and this is ultimately a very lopsided negotiation.... Pandora absolutely needs Sony’s catalog to run an effective radio service. And if they don’t pay what Sony/ATV wants, they can’t use it, by law."
Pandora did not have to wait long for the next publisher to leave ASCAP and demand a yet higher rate for a direct license. In February 2013, Pandora learned that UMPG was scheduled to withdraw its new media licensing rights from ASCAP effective July 1, 2013. [...]
In their first substantive meeting, which occurred on March 22, Horowitz quizzed Kennedy at some length about the state of Pandora’s business. Horowitz then moved to a discussion of Pandora’s need for a license from UMPG, uttering what Kennedy took to be an implicit threat. Horowitz said "we want Pandora to survive." [...] Showing confidence that he knew the material terms of the Sony-Pandora license, Horowitz repeatedly asked Kennedy, (as Kennedy paraphrased) "how did you get Marty [Bandier] at Sony to agree to such a low payment?" [...]
Kennedy indicated a preference for negotiating with the PROs, but added that, if UMPG wanted to negotiate directly with Pandora, then UMPG should provide Pandora with a list of the withdrawn compositions and UMPG’s proposal for a rate. Horowitz said he was "not sure" he was able to provide Pandora with a list, and indicated that Pandora should just make a deal based on UMPG’s representation of its overall market share. [...]
In late April 2013, UMPG provided to Pandora a complete list of the UMPG works in the ASCAP repertoire, but in a way that prevented Pandora from using the information to remove UMPG compositions from its service. The list was subject to an NDA. [...] The NDA then restricted Pandora’s use of the list. It provided that
[Pandora] agrees not to use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the Parties.
Pandora correctly interpreted this provision as forbidding it from using the list to remove the UMPG works from its service.
This was not even remotely close to negotiating a "fair market rate." It was blackmail, pure and simple.
The problem is the publishers are not themselves monopolies but they're treated that way by the DoJ because of the consent decree.
First of all: The DOJ's consent decrees govern ASCAP and BMI, not the publishers themselves. And they are monopolies.
If they were not, then Pandora (and radio stations, and bars, and rock clubs...) could negotiate with competing PRO's for the same material. So, if you wanted to play "All the Single Ladies" on your jukebox, you could choose from ASCAP, BMI, or SESAC (or anyone else) for the lowest rate to play that particular song.
Of course, that's not how it works. And that is because copyright itself is a monopoly. It is a monopoly on a single work, but since it is transferrable to a PRO (in this case), that PRO has a monopoly on all of the works that are transferred to it.
This is completely uncontroversial, and it's why ASCAP and BMI had to agree to consent decrees in the first place: if they didn't, they would violate the Sherman Antitrust Act.
And this is why there cannot possibly be a "fair market price" for copyrighted material: copyright is simply not part of an open market. Again, from the ASCAP decision:
[I]n 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." Id. 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. Id. at 569.
The publishers themselves form an oligopoly. They effectively become a monopoly when they collude to raise prices (instead of competing to lower prices). That is clearly what happened with Pandora.
Sirius XM's own experience with SESAC (which, unlike ASCAP and BMI, is not bound by a consent decree) drives home the importance of the consent decrees. In prior negotiations with Sirius XM, SESAC has demanded oversized fees unsupported by the scant information available regarding its catalogue, and always with the implicit threat of infringement liability. At the same time, it has refused to identify its catalogue of musical works, meaning that Sirius XM cannot (as it could with a single copyright holder) simply remove the tracks at issue from its service. This combination of concentrated ownership and either an unwillingness or inability to be transparent as to what works are actually in the repertory creates a completely untenable situation.
Such anti-competitive concerns have been exacerbated by recent attempts by publishers to withdraw from ASCAP and BMI. As detailed by Judge Cote from the record of the ASCAP-Pandora litigation, publishers that control hundreds or thousands of smaller catalogues (and millions of songs) under one licensing umbrella – making them effectively private PROs five or ten times the size of SESAC – have (a) insisted on the ability to partially withdraw from ASCAP; (b) made exorbitant fee demands, under the threat of litigation, to force direct licenses on services who no longer have access to those publishers’ works via the PROs; and (c) refused to provide catalog data that would allow the targeted service to diminish or stop performing the works of those publishers absent a more reasonable fee demand.
I believe the DoJ will reform the consent decree to permit partial withdrawal because doing so furthers the DoJ's anticompetitive objective
Unless you consider large publishers with monopolies over their own music colluding to selectively raise rates to be "competitive," I believe you're wrong. If anything, the DOJ should expand the consent decrees to cover the publishers themselves, and not just the PRO's.
and the consent decree is no longer serving it's purpose and is enabling Pandora massively better rates.
"Massively better rates" than who? Pandora pays higher rates than comparable services. For example, iHeartRadio pays lower rates than Pandora does for streaming over the Internet. (Pandora pays 1.85%, iHeartRadio pays 1.70%.)
Tim Westergren takes home more money than all publishers combined.
This is a complete joke. According to my back-of-the-envelope calculations, Pandora paid roughly $8 million to publishers in 2013 (1.85% of total revenue, which was about $427 million). There's no way that Westergren takes home that much in a year.
There are also lots of people smoking crack and meth and drinking themselves into a stupor before 3 in the afternoon every day.
Well, here's the difference.
If someone smokes crack and meth and drinks themselves into a stupor before 3 in the afternoon every day, then it's not good for that person. More importantly from a social perspective, it's also not good for the general public.
But if someone "invents something for someone else to make millions off of without any compensation," then that is good for the general public. If that someone also makes money off of their invention, then it is also good for that person, regardless of who else makes money off of it.
The former case is bad for everyone, so it is wrong. The latter case is good for everyone, so it is right.
So, yeah, it does make it right. And if the patent system interferes with it, then the patent system is wrong.
The constitution requires congress to do something to protect inventors and try to promote the sciences and useful arts.
Uh, no. The Constitution grants the right to Congress to "secur[e] for limited Times to.. Inventors the exclusive Right to their... Discoveries," if securing those rights "promote[s] the Progress of Science and useful Arts."
It does not require Congress to do anything. They could get rid of all patents and copyrights tomorrow, if they so chose, and it wouldn't be unconstitutional in any way.
There are few, if any, people out there who would be willing to invent something for someone else to make millions off of without any compensation.
There is little to no evidence that this is actually true in the real world.
If you look at industries with strong IP protections, and compare them with industries with weak or no IP protections (like the fashion industry), then the industries with weak IP protections are always far more productive and innovative... and end up generating far more profit.
Pay special attention to the latter part of the speech, starting at about 12 minutes in, where she actually gives the gross sales for the different industries.
You speak of necessity like we need those things for our sirvival [sic].
You speak of "necessity" like it is synonymous with "survival."
I'll give an object-oriented programming example. Say that you want to iterate over a collection of objects (an array, hash map, or whatever). Sooner or later, that's going to result in the Iterator Pattern. That pattern arose out of necessity to accomplish that task... even though we don't need to do that task to survive.
Software design patterns such as these cannot be patented, but they were still created, and are now used by every computer programmer. Including companies that "make millions off of" those patterns by using them in their own software.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: The majors point
I missed this comment. It's so chock-full of wrong, that I can't help but reply.
They enable copyright infringement
No, they enable user-generated content. Some of that content is infringing, but it's not specifically set up to infringe on copyright.
If they "enable" copyright infringement, then so does every other website that contains user-generated content in any form.
they are protected for some reason by safe harbor
That reason is because Congress set up safe harbor provisions specifically to protect sites like YouTube. They realized (thankfully) that without it, any site that allowed users to post content on it could face secondary liability.
The fact that the DMCA established bright-line liability exceptions is one of the reasons we are legally capable of having an open Internet.
if your saying there isn't copyright infringement on YouTube, you are mistaken
Having infringing content on your website does not mean that the website was set up to "enable copyright infringement."
it's a profit circuit that feeds on itself die to safe harbor.
Every for-profit website with user-generated content partakes in the same "profit circuit." It is far, far better for everyone (artists included) that they do.
Therefore YouTube is obligated to negotiate with all popular indie artists in the same way they negotiate with major label artists.
That doesn't even make sense. They are following the law as it was intended to be followed. They have absolutely no obligation to do any more than that.
It would be nice if they negotiated with indies and major labels the same way, but that's never going to happen as long as major labels hold the significant market share. And not just with YouTube, either.
It should be noted that the monopoly granted by copyright causes this imbalance in market share. An individual copyright is a bona fide monopoly, and because they're transferable as if they were property, it means that the larger market players (major labels in this case) can hoard those individual monopolies.
So, yeah, of course players like YouTube (or Apple, Spotify, eMusic, Clear Channel, Live Nation, Tower Records...) are going to give preferential treatment to the major labels. Because of copyright, they control the majority market share.
The only hope that the indies have is to get onto platforms where their music is equally as available to users as the major label music is. Platforms like YouTube.