We’re drinking, my friend, to the end of a brief episode / Make it one for my baby, and one more for the road. ~ Johnny Mercer
Brian Bergeron was the man who first brought to my attention the horrible contest Capitol and Coldplay put together, which I wrote about here and here. Seems fitting that he’d be the one to close this chapter as well.
To recap, Capitol Records hosted a contest with Live Nation, where bands could submit videos for the chance to open for Coldplay. Turns out, some serious terms and conditions were burried in the fine print. Entering gave Capitol a total royalty-free license to use the entry song for any reason, and the exclusive option of give a contestant a record contract, the terms of which were not negotiable, and quite tilted towards Capitol (even moreso than a standard, first-record contract from a major label). The prize for all of this? 20 minutes of play, with no guarantees that the artist would play in any place of prominence, either physically on the stage or any decent time slot. Payment for this barely would cover the costs of preparing for an arena gig.
While the winning conditions have yet to change, after a couple days of complaints from a variety of places, the terms and conditions changed to remove most of these aforementioned traps. I was cautious at best with these results, however. I stressed that this is an indicator that Capitol wasn’t going to play nice in this contest, although I did applaud them for responding to popular concerns. Many artists, including my friend Brian, took this change as a chance to submit their stuff and see how they could do.
Turns out, my suspicions of Capitol were well founded. Brian reports that the finalists were selected from the contest before the submission period had even ended, effectively ending the contest for all but the finalists.
I spent yesterday with the band working in Haverhill, MA to throw together a video for the Coldplay opener contest. It looks like they had straightened the rules out and made it fair for the competitors. We scrambled to track an entire song and take plenty of video footage and I spent a few hours with Bob today going over the material and putting together a power-packed four-and-a-half minutes. I committed a full day to make sure this would get done in time.
I should learn to expect this kind of thing from these competitions, however…I logged on my computer to submit it to the contest (entries clos’e at midnight tonight) to discover that the winning videos have all ready been CHOSEN. This is BEFORE the entry period is over and once again, the music industry has acted in an irresponsible and unreliable way.
It takes an extra special sort of gall to put forth a Faustian contest - luring artists with promises of equal chances and big exposure and then stealing the very songs artists live and die with under fine print in back pages of the contest site - and then go forth an not even abscribe to the rules you made in the first place. It’s like challenging a person to a game of Calvinball, clubbing them in the knees, and when they still beat you in a race claiming that “first is the worst and second is the best.”
I see no reason why Capitol, Live Nation, and WFNX felt the need to break the rules here. Perhaps this is a small thing to complain about, but the wanton mistreatment of artists throughout this whole contest is another painful example of how much of this industry is forcing itself into a cutthroat, business-driven “us vs. them” market, and how little is the cooperation of all to bring out the best this very music world has to offer. It’s a sad example of how far from music companies like Capitol Records have gone. I hope Johnny Mercer can’t see his company now.
In spite of this, there are silver linings to be had. I’m nearly certain the nominated bands did nothing wrong and had nothing to do with this strange breaking of the rules. I wish the best for all of them. The contest will bring popularity to some Boston-scene bands, and the rising tide will raise all boats. Second, and closer to Brian’s story, he did put together a solid video showcasing a new song of his. According to the blog, he’ll be back in the studio in August, which is most exciting. I’ve been listening to and performing with Brian for nearly five years, and it’s wonderful to watch an already-unique style such as his mature and grow with the help of a full band. Here’s their submission:
I predict this is the last I will write about this particular situation. I hope Brian’s video helps bring it full circle: back to the music; back to the dream. Mountains like the music industry aren’t scaled through contests and sweepstakes. Most certainly, luck plays a role, but so does the support of fans. Support artists like Brian and all the others entering this contest. Let’s show Capitol we don’t need their graces and large stages to find the next big band. Indeed, we’ll know about them long before they ever come aware.
(Note: This is a continuation of the story started here, and has a followup here.)
Once again, thanks to B-Money for bringing this to my attention.
I can’t be sure if this is due to the ever-growing fan backlash thanks to the various Coldplay message boards (some of which linked here too - thanks!), or pressure from Coldplay, or the sudden wakeup from Capitol, but this morning the terms and conditions page for the opening for Coldplay contest I wrote about two days ago are all changed. Let’s take my previous points of contention and see where they are now. Here are the new rules for reference. I had the good sense to archive the page this time around as well - I wish I did last time, too. Read the rest of this entry »
(Update: See post here and gripping conclusion here)
“I get so tired of listening to the way everyone treats music. I keep feeling they’re selling out.”
~Johnny Mercer, songwriter, on his founding of Capitol records
And you thought that we were faking
That we were all just money making
You do not believe we’re for real
Or you would lose your cheap appeal? ~Johnny Rotten, songwriter, on Capitol’s owner, EMI
As I mentioned in my previous post, I recently touched base with old friend Brian Bergeron, who brought this story to my attention via the blog post of fellow artist The Everyday Visuals. The story also made grumblings on LemmingTrail today.
Capitol Records has decided to hold a contest to select openers for Coldplay’s latest tour for shows in San Jose, Philadelphia, Chicago, Hartford, DC, and Boston. Bands may submit a video to YouTube of their best song, and the winner gets a chance to take the stage before the headliner and play to no-doubt sold out audiences of tens of thousands, assuredly launching them into superstardom and earning the love and respect of one of the largest rock bands of our time.
Below the cut is the terms and services of this agreement, outlining the very worst contest rules and conditions I have ever seen. Seriously, Faust would be loving this.
I was planning on writing something about the now-famous MPAA amicus brief filed in Capitol v. Thomas, but I was waiting for a certain much more respected thinker to go first, William Patry. He has made his statement, so here’s my repost and followup.
For those unfamiliar, let me bring you up to speed: The case of Capitol v. Thomas is probably the largest of the volley of lawsuits filed by the RIAA; it is the only one to be brought to a jury trial. The judge presiding on the case asked for briefs from interested parties after he mistakenly advised the jury that the defendant merely had to have the files on her computer for infringement to occur (this, known as Jury Instruction No. 15, is the famous “making available” question that I wrote about here, here, and here back in April). The MPAA, on the very last day briefs were accepted, filed a brief which stated the following:
The fundamental issue raised by Jury Instruction No. 15 is whether the Copyright Act renders such conduct (the unauthorized making available of copyrighted works over a P2P network) unlawful, as that instruction states, or whether such conduct is unlawful only if “actual distribution has been shown” — which, as MPAA understands it, means the copyright owner must provide direct proof that specific individuals downloaded specific works the defendant made available. It is often very difficult, and in some cases impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandibly, copyright infringers typically do not keep records of infringement. Mandating that proof could have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
It’s a sad and compelling story, no doubt, but consider the last line of the statement. They try and slip something by that must be (and has been) met with a good deal of resistance. In this sentence, “[m]andating that proof” is a subtle way of saying “insisting on innocence until guilt is proven.” The MPAA is trying to argue that they do not need to actually catch someone in order to collect on a lawsuit. We as a country have more than a little pride in that peculiar tenant of our legal system, and the MPAA cannot take that away even if the cost is infringement.
More to the point, US law explicitly states what rights a copyright holder has (reproduction, distribution, derivative works, and so on) and “making available” isn’t one of them. The brief goes on from here to talk of world treaties and obligations, all surrounding the notion that making available is (or should be) sufficient to collect hundreds of thousands of dollars from single mothers in Brainerd, Minnesota (cue Fargo reference about “settling it here… in Brainerd.”).
Too bad for the MPAA that this is not how our law works, and it’s here that copyright sage William Patry begins his systematic disintegration of the MPAA’s arguments. You can read his post here.
According to Patry, much can be read into the fact that the MPAA leads their brief with an international argument. This shows that they think their domestic argument for “making available” is weak. To address this, Patry notes that the 1996 WIPO treaty (like most international treaties) draws copyright protection in broad strokes, and leaves it to the nations to determine the what’s and how’s of copyright. The MPAA presents no evidence that (1) “making available” is a guaranteed right to all treaty members or (2) WIPO does not require actual infringement to go after infringers. They are tying to draw a specificity into WIPO where no such specificity exists. While some partner countries may protect a creator’s right to make their works available, the US does not, and all countries rely on actual and not potential infringement. Central to their second (domestic) argument is the 1804 Supreme Court case of Murray v. The Charming Betsy, which only applies if the statue is ambiguous. The law is specific, but limited. The MPAA seems to miss that point, or gets it and is leading the court astray. Regardless, I hope the court realizes this deliberate attempt to drastically redraw the bounds of the law, and doesn’t play ball.
Digital Media Wire is reporting this afternoon that the Associated Press is attempting to define how blogs can use their content.
DMW:
The Associated Press (AP) newsgathering agency will attempt to define how much attributed borrowing constitutes “fair use” of its news articles and broadcasts for bloggers and other websites.[...]The AP last week asked a blog called the Drudge Retort to remove seven posts that contained quotes from AP articles that ranged from 39 to 79 words.
After receiving criticism for the move, the AP over the weekend retreated a bit, calling its approach “heavy-handed,” and decided to hold meetings both internally and with bloggers to establish a more clear set of guidelines for use of its content online.
While they have all right to defend their work, I question how much they can define “fair use,” given their clear bias to protect their own content. Fair use already has a pretty solid test that copyright students are quite familiar with: the Four Factor test. This is a multi-point test that examines the nature of the original work and the alleged infringer through a variety of angles, to see whether the use is likely to be found fair. Let’s take a look at it as it applies to the AP issue above:
The purpose and character of the use, in contrast to the original: Highly transformative works (that is, works that take the original and add substantial new elements to the original versus straight copying) are more likely to be found fair. In the case of a blog adding commentary on top of an AP report this would be more fair, but straight reposting would probably be found less fair.
The nature of the original work: Copying of highly creative works and unpublished works usually is far less likely to be found fair. The AP, being highly factual and already published, would have an uphill battle to prove that their works are of a nature warranting restrictive fair use.
The amount and substantiality of the portion taken: Here’s where the AP may have more of a case. Copying a large portion of an AP report, or the entirety of that all-important first paragraph or two, is less likely to be found fair than taking a smaller or less-substantial portion. There are exceptions based on the nature of the derivative work, however, as often a large portion work needs to be copied in order to be effectively commented upon (such as copying the melody and form of a song in order to parody it). This is an exception that is not likely to be found in blogs covering AP stories, but worth mentioning.
The effect and use upon the market: Depriving the original creator from income or access to another market is typically found as an unfair use. Creating a derivative that is a substitute for the original is far less likely to be found fair. Here the AP may have a case, as blogs that copy extensive amounts of the AP story would deprive the AP of having a chance to exploit their own created content.
Thus we see the tricky balance here. On the one hand, the AP’s work is factual, already published, and the uses in blogs are frequently transformative, all speaking to the uses being found fair. On the other, large and substantive portions taken from the AP combined with the fact that the blog would replace the AP in this case would be found less fair. There is no automatic pass or fail with the fair use test. All of these factors are weighed together in a court situation. The balance of fairness would be difficult to find outside of a case-by-case basis, and while I applaud the AP for reaching out to bloggers in an effort to release their statement, the framework for assessment of fair use is already in place.
To end on an amusing note: I do appreciate the AP’s acknowledgment that they do not seek to become blind lawsuit addicts such as another large aggregate organization. In an interview with the New York Times AP VP Jim Kennedy said: “”We are not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”
Imagine a road in your town that serves as a convenient workaround from normal traffic. It’s the kind of road that only the locals usually know about; perhaps it links two major thruways, or is a way around a toll booth, or the fastest route between the high school and the local pizza joint. I suspect many of you already have a road or two in mind. This road is narrow and winding but well paved, providing ample support for the residents on the road and most of the neighbors. Maybe you live on a road like this, maybe even purchasing a home here for this very convenience. My parent’s house could certainly be such a road, linking main street in their Massachusetts town with a sizable New Hampshire highway, saving a few minutes and miles.
Let’s say your road has a problem. Your excellent shortcut has been found by the many of the public (as they often are). Many who do not respect the road as a resident might have been speeding on it in order to take advantage of this workaround. Naturally, this creates an unsafe and unpleasant environment for those living there and others who drive. What’s more, they show total disregard for the local neighborhood, cranking their music late at night or throwing trash out the window, or damaging the road. The speeders are a rampant problem, and need addressing right away.
One particularly angry resident, let’s call her Rita, is threatening to sue every speeder she sees. She herself has attempted to pull over people, and seeks assistance from a private company to solve the problem. In walks said company, let’s call it StreetDefender, offering to solve the speeding problem. In addition to giving Rita a radar detector to help her catch any and all speeder StreetDefender offers three other potential solutions:
They offer to jam the road with as many cars as possible, highly inconveniencing the culprit speeders and forcing them to slow down or seek an alternate route.
They offer to conduct an espionage mission where they block anyone who they deem a speeder from getting into their car in the first place, killing off the problem at its source, in theory.
They post up billboards along the road every ten feet at a premium (since so many people see them as they zip by), and then share the revenue of those billboards with the neighbors.
Allow me to make a generalization and assume that you, dear reader, are a sensible human being. You, having sense, determine all of these to be foolish solutions to the problem. You are also somewhat uneasy with the fact that StreetDefender is using radar guns on the street, figuring that role to be better served by the police, though perhaps the police, quite frankly, have better fish to fry. And while two of the three solutions above would most likely work, and the third would give you cash, they come at a great inconvenience to you. After all, you too would like to use the road for your totally legitimate, non-speeding purposes. Still, Rita accepts all three proposals and proceeds to sue speeder after speeder, with little success but much damage.
There’s a lot going on in the world of intellectual property, music, and the law these days. I must admit I have been slacking in this department over the past couple weeks, but I’m on the rebound.
First, a followup to the story I wrote about here back in April. Universal Music Group recently sued a man selling promotional CDs on EBay under the handle “Roast Beef Music.” For those of you unfamiliar with the curious creature that is the promotional CD, allow me to illuminate:
This week is a fairly substantial one for royalties and radio broadcasting. The House Judiciary Committee will hold hearings on Wednesday discussing the “Performance Rights Act,” a law which would require terrestrial radio stations to pay royalties for sound recordings. As it stands, radio only pays royalties for the composition (so, songwriters and publishing companies), and sound recording is compensated by all of the free advertising songs get when broadcasted, which almost certainly translates to higher sales. Whether this is an important balance in the limited rights of copyright or the consequence of the fact that big radio was earlier to the table than the RIAA depends on how much of a cynic you are about the congressional process. I’ll have a detailed assessment early next week, after I read the bill and related opinions.
Regardless of the merits, I’ve always felt that the big pushers on these sorts of legislation have been much more the record companies than the artists. Based on the structure of royalty payments in sound recordings (an oft-screwed area of a contract) artists usually fare better in other revenue streams, such as, say, live performances. For years radio has been quite a gold egg goose for record companies, and the payola scandals certainly suggest that record companies get that. It’s hard to see why they want to kill it now.
On the internet side of things, media search engine / go-to MP3 streamer / lawsuit target Seeqpod seems to get how streaming music can benefit artists, record companies, and the music scene as a whole. As an interesting project they’ve recently created a streaming database of this summer’s festivals. The page provides a list of festivals, and fans click though and listen to acts playing at these events. As an example, here’s the SeeqPod page for last weekend’s Mountain Jam.
The benefits are numerous; the site helps fans make decisions on where to go, lets them learn about other artists performing at their festival of choice, or simply gets them hip to other artists in their favorite genre. It’s a cool experiment, a good resource for fans, and a benefit for artists (not to mention record labels and festival promoters).
The á la carte nature of Seeqpod would make it unlikely to be classified as a digital webcaster, although some would argue it still would be categorized as such. For the sake of argument, let’s say it was. The law as of the mid-1990s states that these sorts of services have had to pay sound recording royalties in addition to composition. This has had a severe silencing effect on these sorts of websites, making SeeqPod a brave exception. And not without consequence, as lawsuits have been filed by Warner against the company. I’m more than a little disappointed that organizations like Warner can’t see past the clear benefit to their own artists, themselves, and the general music scene.
Seeqpod will not be directly impacted either way on the legislation considered Wednesday, but let’s not forget that many broadcasters are trying to help the scene much like SeeqPod. Increased royalties would no doubt have a silencing effect on small broadcasters, silencing databases like this. Right or wrong, this should not be taken lightly, and if the record companies do in fact have the best interests of artists at heart, they should consider this as well.
As a followup to yesterday’s ponderings over Tuesday new releases, very heady website Music Think Tank posted the following question a couple days ago: How much is a digital download worth when you resell it? We have yet to see the secondary market develop around digital music, as we see with used CDs and Records. What would that look like? What would that feel like?
This is a long and complex illustration, so reader beware.
Normally, most of my rants about RIAA cases would fall under my “Copyleft” tag, and indeed many still do. But I want cluster these strange RIAA cases together for easy reference in the future. Aside from the “Making Available” string that’s started (and no doubt will continue), there’s this wonderful little chestnut.
As reported now on Boing Boing, Slashdot, NetworkWorld, Coolfer, Consumerist, and Ars Technica, The Electronic Frontier Foundation has just filed a brief in a case that’s sure to make your stomach turn. Universal Music Group seems to think that you don’t have rights over the promotional CDs sent out by UMG and others by the thousands. The case stems from a lawsuit filed against Troy Augusto, aka “Roast Beef Music” - a rare promotional CD reseller on EBay. UMG, and I’m not making this up, claims that they have total rights in perpetuity over those promotional CDs, and insist that the CDs should be returned upon demand. That means that not only are you prohibited from selling them, you can’t even throw them away
This is totally absurd, and goes against one of the guiding policies in US Copyright Law, the First Sale Doctrine, which explicitly states that you can do what you want with a purchased copy of a creative work, short of copying it yourself for sale or distribution. It explicitly grants this sort of permission, to a degree that I wouldn’t be surprised if the case is dismissed outright and with prejudice.
