[rumori] Your recent questions about MP3.com

Nicola Battista (djbatmanATtin.it)
Thu, 17 Feb 2000 20:36:59 +0100

this is what I received (weeks after my original mail, and after
complaining to Michael Robertson himself) from Rod Underhill of mp3.com.
Basically we had 2 problems: a friend of mine whose name is already used by
someone else on mp3.com (we were trying to find a reasonable solution but
the other artist doesn't reply to emails and mp3.com cotinues being very
evasive on this subject); problem no.2 was sampling and copyright.
Basically they are censoring 50% of what I put online without any reason.
Some folks have posted things like a track containing an Ennio Morricone
uncleared sample (and have said it publicly on their page) and even added a
small pic of Morricone.
I (or other artists I represent) sometimes use stupid wav files found on
the 'net (like phrases from obscure movies or comedy bits), anonymous radio
samples etc. and we get "random censorship" from the site guys. Also, most
of the times those folks only qualify themselves as "S", "Rashy" and other
silly nicknames (very professional from the no.1 music site on the web) and
tend to reply with ignorant and evasive mails.
Note that in one of my emails I had mentioned acts like Negativland, Vicki
Bennett/People Like Us and The Bran Flakes as an example of collage artists
I like, whose work would have lots of troubles appearing in their site...
if I'm not wrong there is one Negativland track on mp3.com and one by The
Bran Flakes, but I am sure that a massive publication of their stuff on the
site would just result in more acts of random censorship.
Also, this sounds funny: according to Rod Underhill, "Negativland and Vicki
Bennett both pay for licenses for their sampled material". Wow. Mark, Don,
Vicki & co...: I didn't know that you were THAT RICH!!! ;DD
Also, my knowledge of Negativland's work is still a bit limited, but I
remember a bit from the Fair Use article, and I've just found the html
file... maybe mp3.com people should read it.
"Clearance fees are set, of course, for the lucrative inter-corporate
trade. Even if we were somehow able to afford that, there are the endless
frustrations involved in just trying to get lethargic and unmotivated
bureaucracies to get back to you. Thus, both our budget and our release
schedule would be completely out of our own hands. Releases can be delayed
literally for years. As tiny independents, depending on only one release at
a time, we can't proceed under those conditions. In effect, any attempt to
be legal would shut us down."

Nicola/Dj Batman

>Return-Path: <rodATmp3.com>
>X-Sender: rodATmail.mp3.com
>Date: Tue, 15 Feb 2000 14:43:16 -0800
>To: djbatmanATkutmusic.com
>From: Rod Underhill <rodATmp3.com>
>Subject: Your recent questions about MP3.com
>Cc: samATmp3.com
>Nicola, your recent email regarding MP3.com has been sent to me for review
>and reply.
>I'm pleased that you, for the most part, have been enjoying your
>involvement with MP3.com and I regret that you have not received a timely
>response to your various questions, and have received what you feel are
>incomplete responses to some of your questions. I will endeavor to answer
>your questions to the best of my ability.
>Regarding the issue of duplicate band names:
>As you know, our system only recognizes one unique band name. The issue of
>more than one band having the same name is one of the most common legal
>problems that affects the music business. Historically, this has only been
>a problem for the most part when one band becomes signed to a label or
>otherwise becomes famous. But because of the more or less recent explosion
>of music on the Internet bands that share the same name are becoming more
>and more aware of each other. This is causing some problems, of course.
>It is a complicated issue, too. In the United States we are a "first to
>use" jurisdiction and not a "first to register" jurisdiction. That means
>that a band who has been using a particular band name longer than a band
>who has the same name might in fact prevail in an American legal case filed
>by which to determine ownership of the name in question. This is true even
>if the second band has a registered trademark over the particular band name.
>However, other jurisdictions are "first to register" jurisdictions rather
>than "first to use." For example, the United Kingdom is a "first to
>register" jurisdiction. That being the case, what is MP3.com to do when a
>UK band has registered the particular name of a band but a American band
>has been using the name for a longer period of time? Like I have stated,
>this is a quite complicated issue.
>What our Legal Dept generally instructs us to do in all cases where a band
>name ownership issue exists is to put *both* bands on hold and request that
>the bands resolve their differences between themselves. In short, we do not
>wish to act as arbiters or "junior judges" in such matters. Typically in
>these cases one of the bands will agree to slightly modify their band name
>in a way that is acceptable to the other party. When informed of this, we
>release both bands from their ON HOLD status.
>If you have registered a complaint with our Legal Dept they will eventually
>no doubt order such actions to be taken by our Department. I am sorry that
>they have taken so long to reply to your emails regarding this issue but
>they are typically involved with many labors and it can take a couple of
>weeks for them to respond to emails.
>In light of the fact that you have adjusted your band name this issue may
>have been rendered moot.
>Regarding Sampling:
>Naturally, sampling in itself isn't any sort of problem with MP3.com.
>However, the artist agreement that you have signed online with MP3.com
>states that you "represent and warrant that (a) the Material is your or
>your bandís own original work, and contains no sampled material..." By
>saying "sampled material" the contract is referring to samples taken from
>copyrighted sources that an artist does not own.
>The reason for this is that the law isn't sufficiently clear for us to know
>when a copyright infringement can take place given the use of sampled
>material from a copyrighted original source. Certainly, the law affords
>fair use (along with it's offspring, Parody) as a defense to a copyright
>lawsuit in certain instances, but we are much more comfortable not being in
>a position where we might have to join with you in any sort of legal case
>where alleged illegal sampling is the issue.
>By disallowing sampling from sources that the artists do not own we reduce
>the risk of litigation. This is a business decision that MP3.com has made
>and affects only the music that you would like to place on our site. We ask
>you, respectfully, to follow the terms of the agreement that you have
>signed with us.
>Our Musicology Staff members, such as Harry Williams and David "Rashy" Rath
>are not able to research the originating source of any particular sample.
>They are instructed by me to put all songs that contain samples that they
>might reasonably believe to be from copyrighted sources on hold and ask the
>artists to identify the sources. Sometimes we recognize the sources,
>sometimes we do not. I cannot impose the burden of them having to know
>with 100% certainty where a particular sample has come from.
>Sometimes an artist will indicate that the sample has been taken from a
>public domain resource and we then remove the ON HOLD status from the song
>and release it. Sometimes the artist will confess that the sample was taken
>from a movie, or CD that they own, and we keep the song ON HOLD. All we
>ask is that the artist honestly answer our questions about such matters.
>Samples sometimes are licensed. For example the opening sample from
>Offspring's "Pretty Fly for a White Guy" was licensed from the copyright
>owner for a sum of $10,000. In all cases where a sample has been
>appropriately licensed we would of course allow the song to be released on
>MP3.com. Negativland and Vicki Bennet both pay for licenses for their
>sampled material.
>It is interesting that you bring up Andy Warhol. Perhaps you will recall
>his series of paintings called "Flowers" that consisted of large silk
>screens of flowers taken from various photographs. Unfortunately for Andy,
>the photos that he used were "borrowed" from images he found in a magazine.
>Although he altered the images quite a bit, he was successfully sued for
>what was essentially visually sampling the copyrighted work of the
>There are also serious question as to whether or not Andy's famous silk
>screens of Marilyn Monroe would be legal today. They seemingly violate the
>so called "right of publicity" owned by the actress's estate. The bottom
>line: art does not necessarily justify a taking of something that you do
>not own.
>This being the case, we have elected to travel the safest road possible.
>Regarding: Who gets sued?
>While the artist would certainly be a party to any copyright ligitation we
>have no assurance that MP3.com would not also be named as a party. There is
>a cause of action for "contributory copyright infringement" that could
>easily be invoked in such cases. And even if we weren't sued, there are
>the nagging problems of being dragged to court as potential witnesses not
>to mention having our internal records subpoened so that the opposing party
>could build their case against the infringing party. We'd like to take a
>pass on all of that, thanks.
>Regarding: Illegal samples that we might have missed
>Yes, we sometimes miss a few samples. As always, we encourage artists to
>report such things to us. We want to ensure as level a playing field for
>all artists as we possibly can.
>I hope that I have answered your questions. If not, please feel free to
>contact me directly.
>Rod Underhill
>Director of Musicology
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