Urgent Message from NMPA Regarding Your Rights

[Bob Olhsson]

score at least 1 for wired!

http://www.wired.com/entertainment/m...eningpost_0204

[myrtlebacker]

Still seeking some enlightenment, here's how I see it:

I think it's dubious to make a distinction between radio and internet radio (webcasting). I suspect the DiMA has a good chance that the mechanical rate will only apply to songs, that are actually downloaded and not to streams. Streams already pay the performance royalty - and that is a fixed rate of some millicents per listener and song. Does a download incur a performance royalty ? That'd be inconsequential as well.

The performance royalty is not a percentage of revenue, which is good IMO. It may be too high, if webcasters are really going out of business, it may be right if they complain but continue to exist

Now for the mechanical rate, what would be disastrous IMO, if the mechanical royalty for downloaded songs were to be a percentage of revenue, because I am pretty sure Apple would just love to give me the songs for free, nudging me to buy a bigger iPod.

[nobby]

AMEN, BROTHER!

The article leaves me with the refreshing sense that there is at the very least, an awareness of the problem, that there are more than just a few voices in the wilderness.

Some of what is being said in the comments area seems a bit, um, confused, but there are some good observations being made, and at the very least, a dialogue is emerging.

I find that encouraging.

P.S. To be fair, this isn't the first time. Wired posted articles in favor of musicians and songwriters at least 3 times that I know of in the past several years.

[mousdrvr]

Originally Posted by myrtlebacker

I am pretty sure Apple would just love to give me the songs for free, nudging be to buy a bigger iPod.

Yup, I think you're right.




-mous

[Bob Olhsson]

The rip-off involved here is that we are talking about a compulsory license which should never be confused with a negotiated royalty agreement.

A compulsory license is a royalty cap. Most royalty agreements are for a percentage. There is nothing remotely unfair about setting a high royalty cap.

[radiationroom]

Originally Posted by myrtlebacker

Now for the mechanical rate, what would be disastrous IMO, if the mechanical royalty for downloaded songs were to be a percentage of revenue, because I am pretty sure Apple would just love to give me the songs for free, nudging be to buy a bigger iPod.

It would be illegal for Apple to give a piece of music away for free without the express consent of not just the record labels, but the artist, songwriter, publisher, and possibly the managers of the artist and songwriter. So what you are suggesting here is unlikely without some fancy dancy legal loopholes being created in the copyright laws.

[dwoz]

Originally Posted by radiationroom

It would be illegal for Apple to give a piece of music away for free without the express consent of not just the record labels, but the artist, songwriter, publisher, and possibly the managers of the artist and songwriter. So what you are suggesting here is unlikely without some fancy dancy legal loopholes being created in the copyright laws.

...Ever heard of the Columbia record club?


dwoz

[Bob Olhsson]

It was in the artists' contracts.

[radiationroom]

Originally Posted by dwoz

...Ever heard of the Columbia record club?

Originally Posted by Bob Olhsson

It was in the artists' contracts.

And digital distro was not in artist contracts until very reciently. Any attempt by Apple to do a "download club" akin to the RCA and Columbia record clubs would be an entertainment lawyer's wet dream. There would be massive amounts of negotiations to make back catalog available to a download club.

Not sure about current and future work, but if I was a manager, I would advise against it - YMMV.

[dwoz]

Originally Posted by Bob Olhsson

It was in the artists' contracts.

true enough...but usually somewhat buried in the boilerplate...

In fact, I wonder why that standard clause wouldn't fly now? It basically said, (in many cases) that "free and promotional copies" did not accrue royalties...


...not really getting specific about what "promotional copies" means...couldn't it mean downloads as well?


but, I only play a lawyer on the internet, so I could be completely out to lunch here...

dwoz

[Bob Olhsson]

The traditional problem has been that lawyers and managers have often been paid with a percentage of the advance.

No back end income always equals the biggest advance!

I wrote "knowledge is power" in an attempt to explain this stuff.

[Immanuel]

Originally Posted by myrtlebacker

The performance royalty is not a percentage of revenue, which is good IMO. It may be too high, if webcasters are really going out of business, it may be right if they complain but continue to exist

If webcasters can only stay in the black by underpaying the artists who's work they rely on for income, then I see no more good enough reason to have them around than Kazaa, Napster et al.

[myrtlebacker]

That sounds rhethorically correct but it may not make sense financially. First, killing off a stream of revenue, will not automatically be compensated by the remaining other streams.
The less overall money gets generated by the music business, the less money for the song writer.
Second, underpayment compared to what, the songwriter's historical expectations ? If the market isn't there and it apparently isn't if the webcaster goes out of business, then the price may have been simply too high, in effect the songwriter was really overpayed.

[Bob Olhsson]

Again, NOBODY pays a compulsory rate if they can negotiate a lower rate or a percentage deal.

The compulsory rate is the maximum artists and songwriters are allowed to charge. Whining about the compulsory rate being too high is bullsh!t because a federal law limiting how much an artist or songwriter can ask is bullsh!t in the first place!

[dnafe]

Originally Posted by myrtlebacker

Second, underpayment compared to what, the songwriter's historical expectations ? If the market isn't there and it apparently isn't if the webcaster goes out of business, then the price may have been simply too high, in effect the songwriter was really overpayed.

and no doubt minimum wage is too high right?

[dwoz]

Originally Posted by Bob Olhsson

Again, NOBODY pays a compulsory rate if they can negotiate a lower rate or a percentage deal.

The compulsory rate is the maximum artists and songwriters are allowed to charge. Whining about the compulsory rate being too high is bullsh!t because a federal law limiting how much an artist or songwriter can ask is bullsh!t in the first place!

That's right....it's important to remember that the compulsory statutory rate is for all intents and purposes a CAP, a CEILING, and it is NOT a FLOOR.


dwoz

[dwoz]

Originally Posted by myrtlebacker

That sounds rhethorically correct but it may not make sense financially. First, killing off a stream of revenue, will not automatically be compensated by the remaining other streams.
The less overall money gets generated by the music business, the less money for the song writer.

This may seem to make sense, until you think about it a little further. Essentially, the rates that the DiMA is advocating amount to a TOKEN, or even SYMBOLIC payment to the rights owner. It is technically a revenue stream for the rights owner, but an insignificant one. So, in actual practice, it's only a revenue stream for the "distributor"...NOT the rights holder.


dwoz

[Bob Olhsson]

The only person who benefits from a compulsory license is the record label or broadcaster who wants to cherry-pick the biggest pop hits. It is literally a federal maximum wage.

[Dr. Bob]

Originally Posted by Bob Olhsson

The only person who benefits from a compulsory license is the record label or broadcaster who wants to cherry-pick the biggest pop hits. It is literally a federal maximum wage.

Is it not also true that the label AND/OR broadcaster can write those direct expenses off on taxes as a cost of goods sold, or cost of doing business?? Thereby essentially double dipping and getting this "minor" expenditure dumped off the books?

[Bob Olhsson]

The whole thing is about preventing competition for the services of successful artists and songwriters. While they are at it, they want to minimize what a really popular artist or songwriter might be able to charge.