Duff,
Interesting. Such a usage would be unfortunate from your perspective, might
not enjoy it myself, but I'd like you to think of why you should expect to
maintain your perspective over your work once you release it to the
(sometimes unfortunate) public. I don't think selling it (the devil site
would still be paying the god writer for the usage) gives you the right to
say what that usage will consist of. What if it was ok to use anything you
wanted in the making of whatever you're making, (EXCEPTION: advertising)
Things like theme or background or illustrative music or, as in your hupo,
ironicly or something, no right by permission at all, only compulsary cost.
Pay the fee and anything goes.
Would this really be a culture of primarily nasty defemations (plenty of
which altready exist) as you hypo? But it might also add a new element of
freewheelimg direct referece resulting in new things, painful ones - yes,
so what? You expect to become a puiblic focus and never have any? There
would be more heat in that kitchen, so what? Funny ones (like the one you
hypo) insightful ones (like the one you hypo) ones of questionable outcome
in our hearts and minds (Like the one you hupo. Personally, I would LIKE to
see all that pompous and often oppressive Christian superstition and
gullibility have to occasionally rub noses with its nastiest nemesis,
That's just me, but I bet I'm not the only one.)
Religions DO NOT stand or fall on such casual, poking, "usages" of
defamation. It just ain't happening or it would have happend by now,
wouldn't it? They might rise or fall on their own merits, however, when
those merits are allowed to be referenced freely and objectively by those
publically subjected to them. I don't think your religion should be allowed
to stay out of the expressive hands of pornography (watch out, it may be
our next big ART FORM!) any more than you or they should be kept out of the
hands of newscasters, editorialists, or reporters. Their's is a fair use,
but we are ALL those things now and we are ALL fair users! This is an
option our public mass media always has for transforming our media
environment - unrestricted public cross referencing in the creating of
anything new. (EXCEPTION: advertising).
To put it simply, the right not to be personally embarrassed would be
pushed back and the right to be publically objective about embarrassing
things would come forward more. If we end up with a culture of
embarrassement (some might say we have it now!) then I suppose we would
have to admit to ourselves that we have a lot of things to be embarrassed
about. Is that wrong for a culture to admit? Are we all so happy with the
sacred celebrity-sacred commerce culture we have?
Fame is not a right and that voluntary state of being shouldn't burden the
free expression of the rest of us by having too many rights to prevent any
form of the general public scrutiny they are tediously inviting! The
publicized entity should not be able to control what their public "audience
expresses about them in reaction, no matter what people care to do with
this freedom. All these possible reactions are important. Think we'ld ever
get used to it? Hmmm, is there a problem here, or isn't there? Fun
designing a different future, isn't it?
DJ
Negativland
>Since many of us on this list are so business
>minded, I try to keep reminding myself that for many artists, control is
>even more important than cashola, and a compulsory license eviscerates that
>control. Another way to think about it--if the only shred of hope artists
>now have to get paid under a subscription scenario is their anti-coupling
>clauses, that no longer exists under a compulsory situation (or maybe it
>does--I suppose you could draft it any way you wanted provided
>you were in the right back room at the right time). So, the artists
>would be getting paid, but consider this hypo: What if I'm a Christian
>artist and some porn website wants to use my soundrecordings? As it stands
>(assuming I own my stuff), I can say "NO", and sue for infringement if
>that's not honored. Under a compulsory license, do I have to sit there and
>watch my music glorifying God be used on what I consider a blasphemous site?
>
>Duff
>
>
>----- Original Message -----
>From: Robert Bellin <bobATmp3player.com>
>To: Duff Berschback <duffbATrocketdsl.com>
>Sent: Monday, February 19, 2001 8:12 AM
>Subject: Re: pho: limited times in the Internet world
>
>
>
>Snip
>>3. Lastly, I'll note (again) that once you go down the path of
>transferring
>>control to Washington (and make no mistake, that's where it will go), you
>>invite/assure certain consequences. (Insert all things here that people
>>hate about politics--red tape, money buys power, inefficiencies, etc.).
>
>Sounds like a good description of the music industry now!
>Six of one/half dozen of the other.
>
> Do
>>we want this uberagency governed by the DOJ as are ASCAP and BMI?
>
>Might be better than the lawless free for all we're quickly evolving toward.
>
>Bob
>>
>>Duff
>>
>>----- Original Message -----
>>From: Whitney Broussard <WhitneyATsmmmusiclaw.com>
>>To: 'Dean Kay ' <deankayATearthlink.net>
>>Cc: ''John Parres ' ' <johnparresATyahoo.com>; <phoATonehouse.com>
>>Sent: Sunday, February 18, 2001 2:25 PM
>>Subject: RE: pho: limited times in the Internet world
>>
>>
>>> >>>>Don't quite understand what you mean by "a regulated central
>licensing
>>> agency and the applicable intermediary".
>>>
>>> By "regulated central licensing agency" I mean an organization (like
>ASCAP
>>> or BMI, for instance) which is authorized to grant licenses for a vast
>>> number of copyrights but, due to the antitrust implications, is regulated
>>to
>>> ensure that licenses are granted to all bona fide parties on fair and
>>> non-discriminatory terms. In this particular instance I am talking about
>>> SoundExchange or any competing organization with a similar function.
>>>
>>> By "applicable intermediary" I mean a commercial entity that wishes to
>>> disseminate the copyrighted musical works of others over the web -
>>> webcasters in their broadest sense (to include business models other than
>>> non-interactive delivery).
>>>
>>> >>>>In a vast majority of the cases, negotiations produce licenses
>>> acceptable to both sides and the free market works - and, by the way, is
>>> working extremely well on the Net. Rarely, do proceedings make it to
>>'rate
>>> court' but when they do it is imperative that both sides have the
>>> wherewithal to undertake a major court proceeding.
>>>
>>> EXACTLY. I would suggest that the availability of the rate court as a
>>venue
>>> of last resort creates an extrememly strong incentive for the parties to
>>> reach agreement privately - since both know that *an* agreement *will* be
>>> reached and they can either choose to agree together what *fair* is or
>let
>>> the court do it (which makes both sides nervous). IMHO this simple
>>> difference is why the ASCAP licenses are working "extremely well" (recall
>>> that MP3.com had obtained licenses from ASCAP very early in its
>existance)
>>> and the licenses for the sound recording copyright are *completely*
>>> disfunctional.
>>>
>>> On top of this, the deal vis-a-vis the writer and the publisher is ALWAYS
>>> the same, no matter what deal ASCAP cuts (i.e., each gets paid their 50%
>>> share directly without regard to the status of the writer's account with
>>the
>>> publisher)and thus the composers are quite well-protected by the
>mechanism
>>> (which I think you would agree is an essential component of any solution
>>> that means a damn, right?).
>>>
>>> My point is that the ASCAP system as between ASCAP and its licensees (and
>>> amongst ASCAP's constituents) is a pretty damn good, reasonably fair
>>system
>>> and should be closely examined in the context of exploitations of sound
>>> recordings on the web.
>>>
>>> >>>>Who - or what sorts of entities - do you envision filling what rolls
>>re:
>>> digital distribution?
>>>
>>> I would leave things the way they are with respect to the musical
>>> compositions (except I would argue that HFA should get their fingers out
>>of
>>> the pie - one license for musical compositions is all that should be
>>> reasonably required and, interestingly, the Tasini case [posted a little
>>> while ago to the list] indicates that making something available over the
>>a
>>> network is a display [the static analog of a performance] even though a
>>copy
>>> of that display can be made fairly easily [just like radio, for that
>>> matter]) as does other language in the Copyright Act.
>>>
>>> Aside from the HFA issue, my suggestion is that SoundExchange (and/or
>>other
>>> similar entities on behalf of copyright owners) should function much like
>>> ASCAP and be similarly restricted. This would make ALL music licensing
>on
>>> the web work "extremely well" which is the ONLY sure defense against
>>piracy
>>> (remember, before licensing worked "extremely well" with the NAB
>virtually
>>> all radio stations were pirates) and, from the perspective of ASCAP's
>>> membership should seem exceedingly fair since the way things currently
>are
>>> in the vast majority of cases it is up to the owner of the copyright in
>>the
>>> *sound recording* whether performances may be licensed and thus monies
>>> accrued to ASCAP's membership.
>>>
>>> In short - ASCAP/BMI/SESAC licenses should be all that are required for
>>the
>>> musical compositions and SoundExchange licenses that are subject to
>>> essentially the same terms as the ASCAP and BMI consent decrees should be
>>> all that is required for the sound recordings. If the parties can't
>>agree,
>>> then there is a rate court - but everyone will always know going into the
>>> negotiation that a license *will* be availalable on fair and reasonable
>>> terms.
>>>
>>> Were such a system in place, all this crazy litigation would be moot
>>> virtually overnight. All the copyright parties - artists, composers,
>>record
>>> companies and publishers - could start collecting their "pennies from
>>[the]
>>> heaven[ly jukebox]," webcasters (in the broadest sense of the word) would
>>> have the predictability to attract the venture capital required to build
>>out
>>> all the required infrastructure to generate those pennies and the public
>>can
>>> start enjoying the unquestionably legal (and now licensed services) for
>>> which they have been loudly clamoring.
>>>
>>> I think it's a pretty good system. Do you see any holes?
>>>
>>> -----Original Message-----
>>> From: Dean Kay
>>> To: Whitney Broussard
>>> Cc: 'John Parres '; 'phoATonehouse.com '
>>> Sent: 2/18/01 4:34 PM
>>> Subject: Re: pho: limited times in the Internet world
>>>
>>> Don't quite understand what you mean by "a regulated central licensing
>>> agency and
>>> the applicable intermediary".
>>>
>>> The membership of ASCAP is a single class consisting of writers and
>>> publishers
>>> (the owners of small performing rights under the copyright law) that has
>>> been
>>> granted the right, via a consent decree, to bargain collectively on
>>> behalf of its
>>> members with individuals, individual companies (i.e. MP3.com) and groups
>>> that
>>> represent a particular class (i.e. NAB).
>>>
>>> In a vast majority of the cases, negotiations produce licenses
>>> acceptable to both
>>> sides and the free market works - and, by the way, is working extremely
>>> well on
>>> the Net.
>>>
>>> Rarely, do proceedings make it to 'rate court' but when they do it is
>>> imperative
>>> that both sides have the wherewithal to undertake a major court
>>> proceeding. This
>>> means strong, well funded, well prepared advocates on both sides.
>>>
>>> Who - or what sorts of entities - do you envision filling what rolls re:
>>> digital
>>> distribution?
>>>
>>>
>>> Whitney Broussard wrote:
>>>
>>> > >>>>To arrive at an appropriate fee, every new application must be
>>> judged on
>>> > its own unique set of perimeters.
>>> >
>>> > I have come to agree with you on that one Dean - largely due to your
>>> input.
>>> >
>>> > Given that, by its very nature and as its greatest strength, the
>>> internet
>>> > allows for the delivery of music in a myriad of ways and means, an
>>> > ASCAP-like model which allows for the negotiation of licenses between
>>> a
>>> > regulated central licensing agency and the applicable intermediary in
>>> order
>>> > to see if, in the first instance, they can agree amongst themselves as
>>> to
>>> > what a fair and non-discriminatory rate would be in the application
>>> > concerned (but which is ultimately subject to the determination of a
>>> fair
>>> > rate in an expedited rate court proceeding if they cannot) seems like
>>> an
>>> > ideal mechanism to enable the widespread delivery of music on the
>>> internet.
>>> >
>>> > IMHO, this mechanism has the unique benefit of having been tested
>>> > extensively in the context of granting performance licenses for
>>> musical
>>> > compositions for, among other things, the widespread broadcasting of
>>> music
>>> > (which was understandibly initially met with many of the same fears as
>>> we
>>> > see today in regard to the internet) by intermediaries having vastly
>>> > different business models. Of particular note as well is the fact
>>> that it
>>> > evolved over decades of incredibly acrimonious fighting between
>>> copyright
>>> > owners and those who wish to deliver copyrighted material to the
>>> masses and,
>>> > as Santayana said: "Those who cannot remember the past are condemned
>>> to
>>> > repeat it." Reading the history of the early relationship between
>>> > publishers and broadcasters, I am not anxious to see a replay in the
>>> 21st
>>> > Century.
>>> >
>>> > It seems to me that we would be remiss NOT to seriously explore this
>>> type of
>>> > a system and see if it cannot inform us as to how best to proceed in
>>> the
>>> > situation at hand.
>>> >
>>> > I'm curious as to your views on implementing a system like this given
>>> your
>>> > obvious familiarity with the workings and history of ASCAP.
>>> >
>>> > Given that ASCAP's composers and publishers are subject to the same
>>> > restrictions as I am suggesting, wouldn't it be in THEIR best interest
>>> to
>>> > make sure that THEIR income is not blocked by the owners of copyrights
>>> which
>>> > are derivative works of their more primary copyright?
>>> >
>>> > Publishers and composers have made (and continue to make) fortunes
>>> based
>>> > upon exploitations of their works which they cannot meaningfully
>>> control
>>> > (i.e., mechanical licenses and performance licenses, which together
>>> account
>>> > for what 70%-85% of the total income generation of a song? - you tell
>>> me)
>>> > but for which they are guaranteed payment. Why should sound recording
>>> > copyright owners have rights which are superior to musical composition
>>> > copyright owners? No one has even tried to explain this yet, much
>>> less made
>>> > a convincing case.
>>> >
>>> > -----Original Message-----
>>> > From: Dean Kay
>>> > To: John Parres
>>> > Cc: phoATonehouse.com
>>> > Sent: 2/17/01 5:27 PM
>>> > Subject: Re: pho: limited times in the Internet world
>>> >
>>> > John Parres wrote:
>>> >
>>> > > how about a scenario where, after first publication, *everyone*
>>> could
>>> > distribute
>>> > > online at a fair and reasonable stat rate?
>>> > >
>>> > > JP
>>> >
>>> > Sounds pretty cute, John, and slides right off the tongue as if it
>>> made
>>> > sense, but
>>> > 'fair and reasonable' has as many definitions on the internet as there
>>> > are
>>> > technologies and configurations thereof.
>>> >
>>> > The compulsory statutory mechanical rate applied to carriers of sound
>>> > recordings
>>> > (O.K., O.K. CDs) works because each unit to which it is applied is
>>> > essentially the
>>> > same - the only difference is duration - if the music is longer than 5
>>> > minutes the
>>> > rate increases.
>>> >
>>> > There is no similar circumstance on the net.
>>> >
>>> > To arrive at an appropriate fee, every new application must be judged
>>> on
>>> > its own
>>> > unique set of perimeters. On this unsettled frontier we are currently
>>> > exploring -
>>> > nothing more than short term, experimental licenses makes any kind of
>>> > sense for the
>>> > either the user or the creator.
>>> >
>>> >
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>
>___________________
>Bob Bellin
>mp3player.com
>330-650-4089
>bobATmp3player.com
>
>
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