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. "

Comments

Par for the course

[Analog]

A small electronics repair shop I worked for several years ago (and I do mean small; I was the only employee) used to play a radio station that was owned by a friend of the shop's owner. ASCAP sued him for $50,000. He settled with them for about 20k.

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. ;)

Before we get too excited:

[Mawbid]

Cook argues that links to music stored elsewhere on the Net shouldn't make a Web site liable for fees, but Amenica said that the issue is cloudier than that. "Linking does present certain issues, no doubt about it," he said, adding that the group is currently pursuing only sites whose musical links appear to be local to the site, even if those links actually lead to a different server. "If [the links] take you off a particular Web site, right now we're not pursuing that at all," Amenica said.

Hoping to prevent flamage, I just wanted to point out what "linking", as emphasised in the story, actually means in this case. When Amenica talk about links appearing to be on the site itself, he's talking about frames whose content is not on the site in question.

Note that I'm not siding with the ASCAP, I just think the wording of the article is slightly misleading in a way that creates more outrage than is called for. It happens a lot here on slashdot.
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I'm not surprised

[bear1]

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).

It's not a simple link...

[UncleRoger]

It's not quite that simple...

ASCAP said it appeared TravelFinder.com was hosting the musical broadcast, since Cook linked to the sites through a frame on his page. While the outside menu bar was TravelFinder's, the actual broadcasts were from elsewhere.

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."

So ASCAP wants to shutdown the WWW

[signe]

It appears that that is their eventual aim. The basic structure of the World Wide Web (WWW) is Hypertext Markup Language (HTML). THe basic transport for the WWW is Hypertext Transfer Protocol (HTTP). Shall we just look at this word "hypertext" for a moment.

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....

Third-Party Web Sites Seeking to Link

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.

Oh shoot. I'm violating that right now by copying their copyright agreement, aren't I? Damn. Better notify my lawyers.

• Should not create a browser or border environment around ASCAP content.
  
• Should not imply that ASCAP is endorsing it or its products.
  
• Should not misrepresent its relationship with ASCAP, its members, officers or directors.

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.

• Should not present false information about ASCAP, its services or activities.

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.

• Should not use the ASCAP logo, screen shot, splash screen or any ASCAP Marks displayed on this Site without permission from ASCAP.

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.

• Should not be a Web site that infringes any intellectual property or other right of any entity or person, including, but not limited to violating anyone's copyrights or trademarks, violating any law or advocating illegal activity.
  
• Should not be a Web site that contains content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for all age groups.

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.

Any Web site that creates a link to ASCAP's Site which ASCAP discovers violates these terms and conditions, ASCAP expressly reserves the right to request that such a link be removed and to undertake whatever other action it deems appropriate.

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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