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.
Sort of fun to watch you turn in circles, trying not to use the word "license" when that is really what you have.
Sort of fun watching you use the term "license" to describe things that do not require a license.
your rights are limited by copyright (and thus a licensed limited use).
You do know what a "license" is, don't you? It would be a private contract entered into between myself and the copyright holders.
The rights enumerated in 109 are not licensed. Copyright law does not "license" anything. They are limitations on the statutory right of copyright holders to exclude everyone else from exercising what would otherwise be private property rights.
Those statues are describing the property rights retained by the owner of a particular copy of a CD. The CD owner retains those property rights, because they were never taken away in the first place.
When Universal sells a shipment of CD's to Tower Records, they are not "licensing" the right to sell those CD's. Tower does not need such a license, and Universal could not demand one. They are selling the CD's, and those CD's become Tower's property - along with the individual copies of the music affixed to those CD's.
When Tower resells a CD to me, they are not transferring their "license" to me. And when I then resell that CD to a used record store, I am not selling my "license" to the music. I never had one, and never needed one. I had property rights in the CD; when I sell the CD, I transfer those property rights to the used record store.
You don't suddenly own the song, you cannot bang out copies and sell them, because you are not the owner.
Were it not for copyright law, I could do exactly that - because I would be the full owner of that particular copy of the song. There would be absolutely no distinction whatsoever between ownership of the CD, and ownership of the music on that CD.
Of course, I would not be able to prevent any other CD owner from exercising those same rights. That would be infringing upon their property rights. In other words, my rights would only be "exclusive" to my own copy of the music on the CD, and not anyone else's.
As it is, I retain all the property rights in that copy of the song that are not removed by 17 USC 106. That includes all the property rights enumerated in 17 USC 109, plus all the other limitations on the copyright holder's rights.
The painting here is a unique work of art. It's destruction would be permanent, no going back.
That applies to other physical objects as well. If you owned the last existing copy of a CD, for example, you have the absolute right to destroy it - permanent, no going back.
In fact, this happens all the time. Not with CD's, of course, but with analog master tapes. Especially smaller recording studios that recorded indie bands.
If the indie band (or smaller label) didn't separately buy the master tapes, they were wiped and re-used. Tape is expensive; a new reel of 2" magnetic tape could run you hundreds of dollars. It was much cheaper to simply de-magnetize the entire tape so it could be used again in future recording sessions. Many studios even sold off their used reels, though generally this was when they went out of business.
The recording studios had every right do do this - despite the fact that they never at any point held the copyright on the music on those tapes. The music wasn't "licensed" to them. They owned the tapes, they could wipe the music - even though it was permanently destroying the original music.
A CD of music is a licensed copy, and not an ownership of the original.
Denying reality doesn't change it. And the reality is that you're simply mistaken.
What is licensed is the act of making that copy. But when you purchase that copy, you are not "licensing" the music. You wholly own the music that is affixed to that particular copy.
And in absence of copyright, you would have the right to do whatever you want with that music. Including the exclusive rights enumerated in 17 USC 106. Those copyright statutes remove some (but not all) of those rights from the property owners, and grant them exclusively to copyright holders.
But the rights that are removed from the property owner are limited. And, unless you infringe on one of those particular rights, you do not need a license of any kind to do what you want with your property.
This is black-letter law. See 17 USC 109. Those statutes enumerate the limitations on the rights granted to copyright holders. They are not "licensed;" they do not require a license. They were never held by the copyright holders in the first place. They are the property rights of the CD owner that are "left over" from the ones that copyright takes away.
The analogy in the end falls short because the difference between what 'is' and 'is not' owned property in one case involve data, and in another physical space, but the concept remains the same.
I still don't get your point. In both cases do the owners own the physical object: in one case, the CD, and in another, the building. In both cases, copyright grants rights over the "data:" in one case, it is the music on the CD, and in the other, it is the artwork on the building.
And - I cannot stress this enough - in neither case is the data "licensed." I could listen to the music on my CD; sell the CD, music included; perform the music for my friends; and so forth. These are things that are still my right to do, even under copyright law, because the music on my copy of the CD is my property. The rights holders cannot retract my "license" to do any of these things.
Copyright, however, places restrictions on the music that is fixed to my property. Legally, I cannot perform the music publicly; I cannot make duplicates of the CD and distribute them (for profit or not); and so forth. These are things that, were it not for copyright law, I could very much do, since my copy of the CD (music and all) is my property.
But copyright law takes those property rights away from me (and everyone else). If I were to do any of those things, it is then - and only then - that I would even need a license.
Similarly, without the "moral rights" created by statute, the building owner could remove the artwork, to chip down the section of wall and sell it, or to just plain paint over it. That is because the wall is his property, including the "data" (Banksy artwork) fixed to it.
In both cases, copyright is taking away rights held by the property owners, and granting them to someone else. Of course those rights limit different things, and cover different types of "data." But that does not mean that it is not what they are doing.
You of course understand that there is a basic difference between your CD (limited license copy) and the banksy spray painting (original, one of a kind, unique). Your comparison doesn't work because the things aren't in the same class of ownership.
My ownership of a CD is not a "limited license copy." I did not agree to any kind of license when I bought it. I own it outright, and - barring copyright restrictions - could do anything I wanted with it. Just like the owner of the wall that was spray-painted by Banksy.
It's true that the copyright-created rights in the two properties are different. For instance, I can destroy my CD, but the building owners cannot destroy the artwork on their wall.
But that is not the point. My point was that both the building and the CD are property of the owners, and copyright grants some form of ownership interest in both - not through any kind of voluntary agreement, but imposed by law. That the rights are distinct does not make this any less true.