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ASCAP Shakes Down Webmasters
afabbro writes "Wired has this article about how ASCAP is shaking down webmasters for licensing fees. The key point is that they want fees even if you're only linking to another site. "
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Why are /.ers so protective of copyright violators? Copyright is the only protection free software authors have. Musicians have just as much right as programmers to determine what happens with their creations.
And let's get this straight: framing someone else's content is piracy, just as surely as copying it onto your hard drive.
I've never understood how this works, legally speaking. The radio station pays a licensing fee to broadcast the music, and if I'm in a commercial environment, I have to pay a fee for receiving it?
I guess maybe now I know where Microsoft got some of their ideas for their licensing practices from. ;)
Given their history, I'd guess that the only reason they don't go after people singing in the shower or 'listening' to a song in their head is that they can't police it. Any organization that would demand money from a bunch of kids for singing at camp deserves to be scrapped.
>But now we have ASCAP stepping in and saying that
>if I'm setting up a little page saying how
>much I like They Might Be Giants, and I want to
>link to emusic.com where they have some
>sample clips of TMBG music that they sell
>(legally), I have to pay a license fee, or be
>faced with a lawsuit that I can't afford,
>regardless of whether or not the lawsuit is >frivolous.
No, it doesn't. Read the article. They're *quite* clear that a link to another page is not what they're talking about.
>>If you would like to link to ASCAP's Site,
>>please read and comply with the following
>>guidelines and all applicable laws. A Web site >>that links to ASCAP's Site:
>>May link to, but not replicate, ASCAP's content.
...
>>Should not create a browser or border >>environment around ASCAP content.
...
>OK, These are actually perfectly reasonable
>requests. There are a lot of issues with framing
>other people's content, especially if you put ads
>in those border frames.
Read the article. This is the situation where they're asking for license fees.
hawk, esq.
It's the letterhead they're printed on, not the contents, that matters.
And this works in the little guys favor, too. I saw many situations where a record club, or homeowners group, collection agency, IRS, or whatever, was steamrolling the little guy.For about $100, they could have me send out the hostile letter, often *with the exact same information*, and the problem would suddenly go away.
The letter from a lawyer gets looked at by someone further up is part of it, I suppose. And it also adds a bit more credibility to the threat.
No, it's not fair that someon has to pay the $100. I might have been willing to work for free, but my secretary and kids weren't willing to skip meals
hawk, esq.
You don't have to go that far. Just have a link rather than a frame, and you're fine.
Fuck the system? Nah, you might catch something.
Hello
What country is friendliest to someone with the perspective modern scientist/geek? I have about had it with this censorship driven, encryption restricting, scam supporing, lobbiest centric, let's buy winmodems by the millions because I don't have a clue fest.
A minimum of loopholes created by ancient legal spaghetti would be preferable.
Maybe if everyone with an IQ over 100 and a moral center bigger than a peanut, moves out to this imaginary-land the crew in Washington (who will still be there) will get it.
Or did I somhow miss the point of the American Dream?
Well anyway the question was where can I move, or at least where could I base a business?
Novel theory: Modern Man evolved from psychopath
>What gives them that right?
By entering into contract with one of these three companies, an artist liscences them to police their copyrights. With the standard license, the artist basically says "do whatever you need to protect my music".
>What law provides them that power?
Contract Law.
>If there's no law authorizing such a right, then why are they allowed to do it?
Contract law is a very convoluted form of law practice. I only know enough to whatch for certain clauses, and to take ALL contracts to a lawyer to review BEFORE you enter into any contract and contest every clause you disagree with. If you can't reach agreement, then don't enter into the contract.
>As far as I can tell, this is a civil matter, there're no laws actually involved. Or does US copyright law specifically appoint ASCAP/BMI/whoever as copyright police?
The record companies basically force the artists hand in this regard. Basically, if you are going to be signed, you must have your work protected by one of the three big companies (ASCAP, BMI, SESAC). ASCAP is big in pop music, BMI is big in alternative/Christian music, and SESAC is big in world music. In effect, the record companies refuse to play policeman--it takes up too many resources. If they left it to the artist, they run the risk of the artist being too permissive (and thus they lose revenues) or too restrictive (and thus they lose market share). By using these companies, both the artist and the record company operate under a known set of rules that they can build a business with.
If an artist refuses to be signed, and protects their own rights (which is a whole lot more work), then we probably wouldn't have all this crap going on today. So what do we do? If we have a band, control your own destiny--you may not make millions per year, but tens of thousands is ok if you can gain the following for it.
Remember, an artist makes most of its money touring and royalties are secondary income. Record companies are big machines, and they can offer you an easier access to radio air play, a video on VH-1, and a big tour with lots of promotional support behind it. Record companies came into business not to get artists heard, but to sell records and create a demand for the phonographs. They have since grown, and many artists simply give up rights they should protect in order to get heard.
If we could set up a Artist and Repetoir company that catered to unsigned bands, providing a lobbying system for air play, and bringing in money for both the artist and the promoting companies, then we could have a competing model that would totally change the business operates. Unfortunately, I have no clue on how to do this. Otherwise, I would. Music is one of my passions. That is why I went to school to learn how to record and mix it (unfortunately, the starting pay wasn't enough to support me).
-------------------------------------------------
Alot of people don't realize the power that these companies wield (ASCAP, BMI, SESAC). They have the legal right to enter any store, club, resteraunt, or place of business and demand to see proof of current licensing (with their company, of course). Let me qualify place of business: any retail or business site that plays music covered by ASCAP (& etc.) to generate revenue or productivity. In other words, if the store or office pumps the music over the phone or intercomm, then they are liable. This now includes web sites (you can check out their web licensing contract and fees at their respective sites-- ASCAP, BMI, SESAC). As you can see, they are rather steep--and you have to be careful who you link to.
I find that this truly bites for a couple reasons. The first, I wanted to set up a web site akin to mp3.com that you paid legitimate fees for copyrighted music so I could pay the artists royalties (a cause I deeply believe in). The licensing not only forbids that (I would have to individually contact every record company individually to do it), there fees are prohibitive. Especially the up-front fees. Secondly, it bites because if someone you directly link to decides to distribute music (in any format) on his site, I am liable. I think there reasoning behind it is that I generate revenue (?!) because of that link. I am glad that they can't make you liable for some moron who decided to do the same thing links to you site (you have no real control over that).
I have attempted to contact these companies for alternative liscensing agreements that would permit the site I wanted, but received no response. So, unless you can be assured that you can use GPLd music, you are SOL (remember, a band who does a cover of protected music cannot release their version under GPL, FPL, or any other open distribution license).
-------------------------------------------------
For a better idea of whatr ASCAP is and how it came to be, there's a book I suggest you read: Rockonomics. (Or maybe Rocknomics?) It goes into a lot of the legalities of the music business in an enduser friendly way (and a lot of you guys seem to be endusers of music, especially asking why ASCAP can do this).
It's not the best book on the subject, and it's not great on its own, but it'll get you in that direction.
Hell, just boycott web links. No links to bands. No links to band sites. No links to CDnow. No links to anything that has anything to do with the music industry. (Ok, true indies can stay) I mean, between MP3, the lyrics database, and this, I say screw 'em.
Give 'em what they want:
"Hello, music industry - Don't like the web? Feel threatened? Ok, fine. No web for you."
Sheesh.
ASCAP is claiming that TravelFinder was displaying the broadcast within its frameset, giving the impression that the broadcast originated from TravelFinder.
Imagine if you made, say, a really spiffy Got Milk parody featuring Yoda, and someone else displayed it on their site, within a frame, so that although the image was coming from your site, it looked like it was their's. You'd be pissed, right?
To a lesser extent, this is what ASCAP is claiming. I suspect their position is that if you are going to broadcast "their" music, you have to pay the licensing fees, whether you got it as a free promo CD, from the local record store, or as an internet feed from another site.
Mind you, I'm not saying ASCAP is entirely correct, but it doesn't sound like it's a simple case of "you put a link to my site on your page, so you owe me."
Stupid people will be persecuted to the fullest extent allowed by law.
What if you simply posted the web address without the href so people could cut and paste it into the address bar? You're not actually linking, you're simply mentioning a radio station. And you could say you are not linking to any music sites.
In some ways this looks like more of the same tempest in a teacup about commercial identity and framed content, and if that's all it was, who'd care? It's not like I ever spend time at framed sites. There's another issue lurking here, though: the appropriate use of the appropriate technology, whether it be sophisticated systems or just the right contract language, to channel the flow of money from listeners to the correct artists.
That is, after all, the whole purpose of performing rights associations - to provide the service of collecting revenues for their members. They are a bit like governments that way: *everyone* complains when overhead and administration costs rise, the fair shares that everyone wants add up to more money than there is coming in, and no matter how the policies are set, they can never, in the real world, be completely fair or accurate. And it's the small fry who can't afford to lobby and are considered hard to count that tend to get proportionately less of the revenue.
OK, so the system can never be perfect. But can't it get better?
When you buy a CD, the correspondences are exact. Aside from overhead, the correct artists and publishing companies get all of the performing rights fees collected from the maker of the CD.
Concert performances fall in the same category. A fee gets paid based on headcount, and the bulk of that revenue goes to those actually responsible for the selections of music heard at that concert.
In radio, the correspondences are less exact. Each radio station pays blanket fees, and is also periodically audited in the simplest possible way: a list is made of every piece of music paid during a period of time. Those lists are the basis for the apportionment of revenues collected from the radio stations. This could never be perfect, and the artists that could most use just a bit more income are the very ones who tend to disappear in the statistical noise, but the system works, and it could always be incrementally improved.
But what ASCAP is trying to do here seems to be to collect more money from additional parties who have no possible way of providing useful data for the apportionment of that revenue.
Ability to pay disregarded, it is quite apparent that most people will willingly pay reasonable fees to listen to the music they prefer. CDs are bought and sold at a more-than-reasonable price, while listeners catch as catch can for any music that they don't prefer to buy at a premium of 1000% or more than the composers and performers will get paid.
It's easy to envision the administrative nightmare that would arise if performing rights tried to collect accurately and directly from each listener for each piece of music enjoyed or endured. Reductio ad absurdum, compromises must be made.
But can't we do better than this? After all, regardless of whether a link to an internet radio station appears to be part of another site or not, music that gets to a listener came from the radio station, not the site providing the link - regardless of all other considerations. The station can presumably provide the straight goods on what music was played and how many were listening (at least on average). Rest assured that all countable listeners, regardless of how they came to listen to that station, will be included in the formula for the amount the station must hand over.
If I read the Wired article right, what ASCAP is doing here is the equivalent of double taxation.
Before trying to collect twice for the same listener, perhaps it makes more sense to collect from those that proxy streaming media. They serve actual *additional* listeners, and besides, they are the most of the ones that get a good enough signal to bother listening nowadays.
But nobody does anything about it. I fully expect to see an article on Slashdot one day with a picture of Einstein by it on how someone IS doing something about the weather. But I've been following slashdot for a while now, and I don't see a whole lot about people doing anything about IP issues.
This is interesting, considering the fact that I see the Open Source community as very self-reliant. Cooperative, yes, but also, self-reliant.
I have seen some insightful posts now and again. And some folks have pointed out that there are, in existence, several organizations that exist to work with these issues.
I'm going to list some of these at the end of my post. If you know of others, I'd be interested to hear about them. I'd also be interested in knowing what you folks think of their efforts & effectiveness. And I'm also interested hearing other ideas about what we could DO about this problem. The law system seems to have been designed to be adversarial, with each side of an issue to be represented by an advocate. We've got to have some good advocates, or the law system will fail us.
Organizations:
FSF, of course (http://www.fsf.org)
The Electronic Frontier Foundation
(http://www.eff.org)
Digital Future Coalition
(http://www.dfc.org/)
Web Media Advisory Council
(http://www.com-prod.com/wmac.org/)
Home Recording Rights Coalition
(http://www.hrrc.org/)
Maybe that Ralph Nader guy is even doing something.
Other Online Resources:
Cyberspace Law Center
(http://www.cybersquirrel.com/clc/index.html)
Nolo (DYI law stuff, mostly)
(http://www.nolo.com)
FindLaw
(http://www.findlaw.com)
All these links are listed simply on this page:
http://sun.he.net/~uvm/links/ip.html
And feel free to email me (weston@byu.edu) if you're interested in working on this problem, have insights onto who really is, or if you have other comments.
Tweet, tweet.
Iliad is the cartoonist who draws User Friendly, a wonderful little strip. Artur is a Terminator-like character who has appeared in recent strips to (physically) attack Microsoft.
-Imperator
Gates' Law: Every 18 months, the speed of software halves.
1. OK, IANAL (I Am Not A Lawyer) but I believe that copyright law will have to be seriously adjusted in this digital age. Simply put, copying and transmitting most information is now WAY too easy. Its hard to regulate it and any attempt to do so causes major inconvenience.
2.I think a solution is reducing some of the rights of copyright holders and then rigidly enforcing those rights that remain. I think the whole concept of "owning" ideas is pretty strange anyway. So if I think up a cure to cancer that means I "own" this idea? And people can die left and right if I don't feel like letting them use "my" idea?
3. Certainly you should be allowed to profit from your idea, but I propose copyrights should be limited to 1 year. After that all bets are off. This will be a much cleaner implementation and during that year the copyright can be rigidly enforced and stiff fines levied.
4. OK, this idea probably has a lot of holes in it, but the concept of anyone owning an idea "forever" is deeply troublesome. I mean even if you are the creator, if you didn't want to share you could have taken your idea with you to the grave. Lets see how much profit you would have gotten then...
The only reason all cover-ups appear to fail is that you never hear about the ones that succeed.
First of all, I am an ASCAP member. The ASCAP has the basic job of defending intellectual property rights for musicians and composers. While I do not always agree with their methods, I am glad that they are around.
If you play music in your business, you use that music to make money. ASCAP sees that the artists are compensated for that. It really is that simple. When my jingle becomes the McDonalds commercial, I get compensated. If I open the Carly Simon cafe, all Carly, all the time, Shouldn't Carly be compensated for using her music in the restaraunt??
The web site in question used their links to radio stations in such a way as to make it appear local. Hence it is the same situation as any restaraunt that might use a stereo to play CD's while you browse. He could have simply made the links open a new window to another site.
Microsoft sells ads on their "Radio Guide" page, and hence they pay a licensing fee. As the web develops you will see more "portal sites" that center around mp3 and internet radio. They will be using the music as a draw to sell advertising in the millions. (M$ radio guide takes in a million dollars every month....)
While some of the ASCAP's practices may seem strange to normal people, there are usually ways around these rules. Case in point, if this guy would just have a pop-up window that made it known that the stream was not local, his site is business as usual.
And if the music is not useful to the retailer, he always has the option of doing without, as is the case here. But obviously music is important to these people.
ASCAP is what keeps music piracy at a minimum. If sowtware had an orginization like this, software piracy would be at a low, and software would be less expensive due to it. Games would cost 20$ because they don't have to compensate for you buying it and burning 13 copies for all of your friends.
I am typing this at work... I could do with less interruptions... *SIGH*
I find the last line of the article to be the scariest.
"If [the links] take you off a particular Web site, right now we're not pursuing that at all," Amenica said.
It's the "right now" that bothers me. Who's to say they won't pursue it at some future time?
Now that he's available, I think Artur needs to make a visit to ASCAP HQ.
I am tired of the music industry behaving the way they have been. I hadn't realized until I read the article that they were after restaurants with televisions & such. The article implies that noone has ever really challenged them about this. This looks like another example of a disturbing pattern in the U.S. - if you have a lawyer to write scary letters, you are in the right unless the person getting the letters is also sitting on a pile of cash to hire his own lawyers.
*Something* needs to be done about the runaway legal system in the U.S. - this is out of control...
*(Something is kinda vague, I know... my suggestion would start with tar & feathers, tho)
I remember reading about that a few years ago. It even went so far that parents wouldn't allow the group to sing happy birthday to a child in that environment because the "happy birthday" song, believe it or not, is under copyright and would be subject to licensing fees. There was some research, and apparently the law is on the side of the ASCAP, sucks tho it may. Its absolutely slimy, but don't think that won't stop them.
So restaurants will pony up the dough because they don't want to risk a lawsuit. Girlscout groups simply choose to ablige by not playing the music at all, as a non profit organization, the licensing fees don't fit will into their budget.
But there is a solution. A lot of music is getting released outside the territory o fthe ASCAP. Granted, the selection is still a bit sparse, as is the quality in some cases, but give it time. Restaurants cater to a great many people, and if they wouldn't have to deal with this crap, they may be tempted to seek alternative solutions.
-Restil
Play with my webcams and lights here
i can assure you that they really do suck. my band was invited onto some of the dates for the Warped Tour last year, and needless to say, we were excited. until we learned that we had to join ASCAP. at first, i thought it was some kind of shady racket to shake down musicians. instead, it turns out it's a shady racket to shake down their fans.
the ASCAP monthly newsletter is delivered monthly to my house. as of late, seemingly the sole focus of the magazine has been MP3 and how it threatens the music industry. last month, there was an extensive article on how bands and labels can attack fan sites.
i guess that, were we being sued, or was my band getting actual radio airplay, ASCAP fight be slightly helpful, but i even doubt that.
it's also worth pointing out that we were NEVER paid for our Warp Tour dates. it's normal to get little or nothing playing a small club to 50 people, but when your band plays to 15,000 people, you might expect to get a little something. you'd be wrong. (the reason i mention this is because it's supposed to be ASCAP's job to see to it that we get paid.)
Lets say I have a link to a music site. When you click on the link, it automatically launches a new browser window (effectively taking you from my site to another that actually has the music). Does this mean I am supposed to pay a royalty?
Wouldn't that be akin to charging royalties from people for putting bumper stickers on their cars displaying their favorite radio station?
Any answers from knowlegdeable people would help.
According to Webster's, hypertext is a noun meaning "a database format in which information related to that on a display can be accessed directly from the display." That's a rather convoluted definition. But if we break it down we can see it's not really that bad. We start by calling it "a database format," which is not exntirely false; we can consider a HTML page a record, making the WWW a form of database. Then we say that the nature of this database is such that "information related to that on a display can be accessed directly from the display." This means that the nature of the WWW is such that if I'm viewing a web page on music, I can directly access other pages dealing with music from the page that I'm viewing. So the definition isn't a bad one.
So by extrapolation we see that the nature of the WWW is such that such that pages link to all sorts of other (related) pages, forming a sort of web. This is part of what makes the WWW so useful: if I'm reading a page and I want more information on a particular topic, I just click on it and go there. And as someone making web pages, I don't have to reasearch and compile information and store it on my site if someone else has done it already. I can just link to their site.
But now we have ASCAP stepping in and saying that if I'm setting up a little page saying how much I like They Might Be Giants, and I want to link to emusic.com where they have some sample clips of TMBG music that they sell (legally), I have to pay a license fee, or be faced with a lawsuit that I can't afford, regardless of whether or not the lawsuit is frivolous. So what's next? We could have online newspapers demanding you pay a fee to post links to their stories on your web page. And then every Joe Clueless with a web site starts demanding payment for being able to link to his site.
But why should they stop with the web? Why not sue people for putting links in their Usenet posts telling people where to get some more information on a topic? Or email? I better not put a link to ASCAP's web site in here, or they might sue me! This goes against everything that the World Wide Web is. The WWW was developed for sharing information and making information avaiable to everyone easily.
But I suppose we better make sure that we're in compliance with ASCAP's rules regarding linking to their site....
Oh shoot. I'm violating that right now by copying their copyright agreement, aren't I? Damn. Better notify my lawyers.
OK, These are actually perfectly reasonable requests. There are a lot of issues with framing other people's content, especially if you put ads in those border frames. And as far as misrepresentation goes, that ends up falling into other legal areas.
Who determines what false is? If I say that ASCAP is a fascist organization, that's my opinion. Sure, you can say that it's false, but that doesn't mean you get to tell me to change it. However, if I was to hypothetically say that ASCAP's board of directors has a predilection for child pornography, that would be slander and you'd have legal grounds to sue me.
Again, perfectly sound restriction against using your intellectual property without your permission. However, if I was to use your graphics as part of a parody, you wouldn't have a legal leg to stand on. Parodies are protected under fair use.
These two really come down to a matter of opinion. And frankly, if ASCAP really expects to be able to enforce them, I suggest they make sure they go to every major search engine and demand that all links to ASCAP be removed. Because there's not a search site I know of that doesn't return either warez or porn sites in their searches.
I suppose for the items that actual have some legal basis, this is entirely acceptable. But it's still not illegal for me to say "You can find this information over there." You can sue me for slander, you can sue me for copyright infringement, but you can't sue me for pointing at you.
---
"The details of my life are quite inconsequential..."