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.
From a Forbes article, to which Techdirt linked in their previous story:
Any user-uploaded video of copyrighted content will likely stay up too, a YouTube spokesman said, though it's yet to be finalized. But the videos will not be monetized — which means that videos that stay up will not have ads running on them (so neither YouTube nor the rights holders earn money), or videos might be taken down. Currently, rights holders can monetize user-uploaded videos of their copyrighted content through YouTube’s ContentID system, which alerts rights owners of copyrighted content on the site and lets them choose to take it down or get revenue from ads that run in front of it.
If you don't agree to the new youtube deal, you can forget content-id and go back to the DMCA forms.
This is actually unclear. It certainly seems to be the case that you can forget monetizing using ContentID. Whether you can still use it to take down videos is an unanswered question.
If that's a big problem, why would the various indies just say "don't talk to me, talk to Merlin" and then the issue would be solved?
Because YouTube would stop listening after "Don't talk to me..." The indie labels weren't given that choice; any attempt to have YouTube negotiate with Merlin would mean they weren't taking any deal.
At least, that's the accusation. Personally, I just don't see this happening, or at least it's not the full story. It's always easier to negotiate with one entity than it is to chase around hundreds of individual rights holders. It's why anyone ever dealt with ASCAP or BMI in the first place.
I find it much more likely that YouTube did attempt to negotiate a deal with Merlin, and the negotiations completely fell apart. Either that, or Merlin couldn't legally offer the licenses that YouTube needed (e.g. global rights).
tay well away until Google and everyone else involved actually abides by the DMCA regarding notice-and-takedown.
FYI, ContentID has nothing to do with the DMCA notice-and-takedown process. You don't have to participate in ContentID to send notices.
The difference is that the DMCA requires those notices to be takedown notices. Your choices are to take the content down entirely, or to leave it up as-is.
ContentID is a way to avoid this Sophie's choice, imposed by the government upon rights holders and service providers, and offer a "middle way" where everyone gains. But it has nothing to do with the DMCA, it is a service created by YouTube, and (like all service providers) they have a right to control it.
Re: Re: Welcome to the "fair market rate" for music.
Since when _must_ artists see youtube as a music platform like pandora ?
I was talking about the misguided notion of a "fair market price." If the DOJ's review of the consent decrees results in allowing "partial withdrawals," then everyone who currently deals with ASCAP or BMI will instead start dealing directly with publishers instead. The publishers won't give them the choice, just like they tried to give Pandora no choice.
If this happens, then companies like Pandora and Sirius will treat indie artists exactly like YouTube is treating them. (Or at least like they're complaining that YouTube is treating them.)
If they don't want that sort of treatment from Pandora or Sirius, they should be opposed to changing the DOJ's consent decrees.
And if they want the government to intervene in the YouTube negotiations - which they are, in fact, trying to do - then they can't complain about the lack of a "fair market rate" due to government intervention.
Can't have it both ways.
The problme is choice: they don't have it. They cannot stick to the old ads-only strategy.
I agree that this is a shame, and I hope that YouTube changes that policy. But let's be perfectly honest: that was never the labels' choice to make.
YouTube can offer their services under whatever terms they like. The indie labels can accept them, and use YouTube's services; or reject them, and not use YouTube's services.
What they can't do is demand that YouTube have no choice but to provide them with services on their terms. Which is exactly what they're doing.
Google gets the majority of revenue and the indie artists get very little.
Well, under the current Partner program, the indie artists get slightly more than half of the revenue from their videos.
The new deal will actually make artists more money than that. Even if it's not on par with what YouTube makes, it's still an improvement.
And I'm betting that the artist's take will still be higher under YouTube's deal than it ever was under a traditional label deal. The unfortunate truth is that artists have never made the majority of revenue from their music. It's always gone primarily to the labels and retailers.
Say, remember when all of those major publishers wanted to do their "partial withdrawals" from ASCAP in order to blackmail Pandora into higher royalty rates?
The rationale that they gave was that ASCAP's consent decree hampered them from getting a "fair market rate" for their music. They argued that the only way they could get a "fair market rate" was to reject blanket licensing, and do deals with Pandora individually.
They are still pressuring the government to change the laws so that this is allowed. And it's working - the DOJ announced that they are reviewing the consent decrees, with ASCAP's leadership and the major publishers (but not ASCAP's songwriter members) hoping that "partial withdrawals" will be allowed.
You wonder what will happen if they are? Well, look no further than this story.
The deals that the indies were allegedly "forced" to do with YouTube, are exactly what would happen if the consent decrees are altered. The major publishers would do individual deals with Pandora or Sirius, and the indie labels and individual songwriters would be out in the cold. They would be offered deals that are far worse than the ones major publishers, on a take-it-or-leave-it basis.
So, that's the "fair market rate" that the publishers are after. The major publishers get to blackmail Pandora and Sirius into crippling rates, and everyone else gets nothing.
It is beyond ironic that the people who complained about the Pandora rates are the same people who are now complaining about the YouTube deal. Either you want a "fair market rate," in which case you're in favor of the YouTube deal; or you don't, in which case you're in favor of the Pandora deal. Make up your mind, but you can't have it both ways.
The fact that Plagiarism Today got the term wrong is not surprising. This is, after all, a website that has the term "content theft" right in the header of their website.
Of course, there is no such thing as "content theft" under the law. It is explicitly not theft; it is infringement. Pity they can't make that one of the terms that everyone should stop using incorrectly.
funded by YouTube/Google through their paid channels
The actual name of the program was the "YouTube Original Channel Initiative." I meant that Google paid to produce the shows on the Geek and Sundry channel, not that users had to pay to view the channel.
Sorry if that caused confusion. Couldn't remember the program's name when I wrote the last comment.
I've actually been looking at this issue, and it's not entirely clear to me that they stopped paying those royalties.
What is clear is that they don't report the songs to SoundExchange. Whether that means that their royalty rates dropped is another matter. It is possible that they simply pay the same lump sum, and it just doesn't get distributed by SoundExchange.
This is the closest I could find to a description of what went on behind the scenes. It has to do with Sirius XM, not Pandora, but it's entirely possible that it works the same with both:
Until two years ago, Sirius regularly sent SoundExchange a log of every song it played – including songs recorded before 1972 - along with a lump sum payment the royalties it owed. The non-itemized sum didn't include pre-1972 recordings, but since the payment wasn't broken down per song, SoundExchange for years distributed the royalties to all the artists on Sirius’s playlists, including the legacy artists, according to a person familiar with the matter.
But in 2011 SoundExchange asked Sirius to start reporting exactly what it was paying for, and since then Sirius has stopped reporting pre-1972 songs, this person said, so SoundExchange ceased paying out on them.
The thing is, those rights granted under copyright are legally called a "license".
No, they absolutely are not.
A license is something that rights holders give me permission to do, which I would otherwise not have the legal right to do. Nowhere in the copyright statutes is it claimed that this is the case. In fact, it's exactly the opposite.
As I explained, but you ignored, the rights in 17 USC 109 are not any kind of license. It's right in the name of the statutes: they are "Limitations on exclusive rights." Those statutes do not grant rights, they limit them, and the rights that they limit are the rights of the copyright holders to infringe on private property rights.
This is black-letter law: "Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
If no permission is required, no license is required. It's a bona fide right, and the copyright holders do not have the legal right to require permission (i.e. a license) to exercise that right.
"When Tower resells a CD to me, they are not transferring their "license" to me. "
Yes they are.
No, they are not. No such license was granted to Tower. Copyright holders never had the right to control sales of the original recording.
This is black-letter law. Copyright holders do not have the right to place limits on first sale rights. They do not have the legal right to grant such a license. You are factually wrong on this point. Give it up.
They don't have to provide you a long piece of paper, because the details of the limited use license are defined in copyright law.
As I made explicitly clear, the copyright statutes do not "grant" anything. 17 USC 109 is a "limitation" on rights, not a "grant" of any kind of rights to anyone.
In any case, copyright law does not "license" anything whatsoever, as I've made abundantly clear.
Of course, but you are again confusing what you are selling. See, you aren't selling the song, you are selling the license implied by your ownership of that plastic disc.
There is no "license," implied or otherwise, because no permission is required. Again, this is black-letter law. Copyright holders do not have the legal right to grant me a license for first sale rights, because they never had the exclusive right to them.
Your property rights on the plastic disc do not usurp the ownership rights of the copyright holder.
The entire discussion was about which property rights are usurped by copyright law.
And copyright law usurps the property rights that the owner has in the copy. This is not even remotely controversial. Of course, under copyright law, rights holders have an entirely artificial (and limited) right in the music that is fixed to the copy. Nobody is arguing otherwise.
We are discussing the property rights that one would have if copyright law did not exist. And, absent copyright law, I would have all the rights enumerated in 17 USC 106 (except they would only be "exclusive" to my copy).
Similarly, the owner of a building with Banksy's artwork on it, would have all of the property rights that are normally associated with a building. He or she would have the property right to tear the wall down, wash off the artwork, or even break it up into bricks and sell them.
But the rights enumerated in 106(a) usurp these property rights. If the work that is fixed to the building is a recognized work of art, copyright law decrees that the original artist has a property interest in that piece of property.
Exactly like the copyright holder has a property interest in my CD.
That is my point, and it is absolutely true. You might try to frame the removal of property rights as a "grant of limited license," but it's simply wrong under copyright law. Just as it would be wrong to claim that Banksy granted a "limited license" to the wall that he spray-painted.
The property rights are exactly the same. The property rights that are removed by the copyright statutes are different, of course, but that doesn't mean that the copyright statutes aren't still removing property rights.