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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. ;)
Fuck the system? Nah, you might catch something.
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).
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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.
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.
This sounds like the (unfortunately canned) Atlantis Project, the idea of which was to assemble a country in international waters out of modular floating hexagons. The laws of this country were to be pretty much Randian, 'thou shalt not initiate force,' etc.
;)
I have been asking the same question for a couple of years, though, and haven't found any country better than the US for general respect for rights, despite the constant gnawing threats and diminishing freedoms here. Some parts of the US seem freer than others when it comes to letting people alone, but there are enough Federal laws which crush state sovereignty that this is small comfort.
Anyone want to start lashing rafts together like in Snowcrash?
timothy
jrnl: http://tinyurl.com/c2l8yr / foes: http://tinyurl.com/ckjno5
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.)
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.
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"The details of my life are quite inconsequential..."