Behringer responds to reports, defends reverse engineering

MUSIC TRIBE and Behringer responded early today to CDM’s request for comment, following revelations that company had targeted a Chinese website and Dave Smith Instruments with threatened or real legal action over criticism of the company’s business practices.

Uli Behringer, company CEO and founder of holding company MUSIC TRIBE, shared the following, which I’ve included in its entirety. (He also shared the same message to their Facebook group.)

In the message, Behringer doubles down on the claim that comments posted by a Dave Smith Instruments employee to the Gearslutz forum, as well as by Chinese news site Midifan, are false and constitute illegal defamation. He also defends the practice of what he describes as “reverse engineering” in their product development process.

Here’s their side of the story, as represented to us:

Hi Peter,

Thank you for reaching out and giving us an opportunity to respond in detail which we appreciate.

This is actually a first in our history with CDM and we welcome the change. As usual there are always two sides to any story and in the spirit of transparency and fairness we believe both sides should be heard. Since much revolves around “Defamation,” please find a quick Wiki link.

https://en.wikipedia.org/wiki/Defamation

Chinese Media Case
Allow me to first comment on the previous story related to the Chinese Media case. While you had claimed to have reached out to us for comments, there is no such record in any of our systems. You only contacted me and Michael Lapke last weekend after the news was already a week old.

Let me start by saying that we don’t have any problem with people criticizing us. In fact we appreciate constructive criticism as that’s the only way to learn. What we have a problem with is when our employees are being called highly offensive and insulting names by media outlets. Unfortunately your article did not properly reflect the full content and background of the language used, which in the Chinese culture has a highly different sensitivity and legality.

This was not only raised by our Chinese colleagues but also customers of this media site who felt compelled to contact us. Also publishing pictures of a cancer-fighting colleague in a hospital bed has caused deep concerns among our people.

We sent the owner of the publishing site a Cease-and-Desist letter, but he was never sued as wrongly reported. We have since spoken with the publisher and they have promised to remove the offensive language and refrain from posting such slur in the future. We consider this case to be resolved and he also has standing invitation to visit us.

Since our employee welfare and integrity has been severely questioned by this Chinese magazine and whose accusations have later been repeated by CDM and other publishers without fact checking, I like to post a link to a local job portal that may give you a different impression. We also invited you Peter (and everyone else) to visit us, both in Manchester and Zhongshan.

We are very proud that we have been ranked Zhongshan’s No. 1 employer by the leading and independent job site (http://www.jobui.com/company/35895/)

Our factory MUSIC Tribe City is ranked:

· No 1 most popular electronics company
· No 1 most popular recruiting company
· No 1 most employee caring company

I am very proud of our local leaders who go out of their way to make a difference for our employees. If you like to learn more about our MUSIC Tribe City here is a video.

DSI Case

Some time ago an employee of DSI had posted incorrect and slanderous statements about our company on multiple forums. We put both the employee as well as DSI on notice and received a signed Cease-and-Desist letter from the employee where he assured us that he would refrain from such future comments. I have attached a copy of the undertaking of the employee to stop making such comments. In the reply of DSI, the company stated that it has instructed all employees to stop making any false or derogatory statements against us.

It is important to understand that this is not a legal action against a mere individual but a representative of a competitor. Any such false and disparaging comments made by DSI’s employee, are damaging and inappropriate in a highly competitive market such as ours. Unfortunately and despite the signed declaration, the individual working for DSI chose to continue to make such claims and hence we were forced to take legal action. If the employee had stopped his actions as agreed, the case would have never been field. While I am not a lawyer, I can only assume that including 20 “John Does” is part of a standard legal procedure to include other potential individuals related to the company. For clarity purposes, this case has nothing to with any particular forum or individuals other than those related to DSI.

Misconception around IP

Allow me to post an article about IP (Intellectual Property) as this is an important one to us. Especially because we have been accused of not honoring the IP of other manufacturers. I have heard and read over the years many accounts of lawsuits, judgments and sanctions against our company that are frankly based in fiction and not fact.

Technology is free for anyone to use unless it is protected

This is the fundamental principle of every industry and how we as a society progress and evolve. Imagine there was only one car or guitar manufacturer. I welcome this opportunity to set the record straight not only on past cases but to also clarify our view on IP and what constitutes fair competition as well.

About 30 years ago, as a small garage operation, we became involved in a patent dispute with Aphex over a processor we were building. At that time there were several companies who produced those exciters, such Akai, SPL, D&R, etc. Our patent attorney advised us that the Aphex patent was invalid and I also applied for my own patent (DE3904425), with sponsorship from the acclaimed Fraunhofer Institute, the inventors of MP3. Despite assurances and our own beliefs, we ended up in court where the judge ruled in Aphex’s favor and we lost the case. We paid damages and moved on.

This case illustrates very clearly what I came to understand over the ensuing nearly 30 years about patents and IP. Disputes over intellectual property are commonplace in many industries and especially so in the technology industry. IP is a grey area, as it deals with patents, trade dress, copyrights, designs etc. where not much is black and white.

Just look at cases with Roland versus InMusic, Gibson versus PRS, Peavey versus QSC, Microsoft, Blackberry, Yahoo, Google, Samsung, Apple etc. Lawsuits are often used as “guerilla tactics” and especially common in the US where legal fees are sky high and each party has to pay its own fees regardless of the outcome of the case. This, along with the fact that IP litigation is often used as a tool to push a competitor out of business, are reasons why there are so many cases in this area of law.

Misconceptions around IP

One needs to be clear about the distinction between blatantly copying someone else’s product and the principle of reverse engineering. Copying a product 1:1 is clearly illegal, however reverse engineering is something that takes place every day and is accepted as part of a product development process known as benchmarking.

Often one company will establish a new market opportunity for a unique product and others will follow with their versions of that pioneering product. Think iPhone followed by Samsung Galaxy. This is the principle of competition.

The Article from Berkeley Law School gives a great read and provides valuable background information. A quick excerpt demonstrates why public opinion often differs from the law.

“Reverse engineering has a long history as an accepted practice. Lawyers and economists have endorsed reverse engineering as an appropriate way for firms to obtain information about another firm’s product, even if the intended result is to make a directly competing product that will draw away customers from the maker of the first product.”

One of the cases that endures in people’s memories is when we were sued by Mackie over alleged infringement of their IP. After a series of very costly and bitter court cases which we all won, Mackie reached out to us for a settlement which did not involve any money. It was proven in court that we had not copied their schematics or PCB layouts, nor had we infringed on any patents as there were none. Nor had there ever been any legal cases brought by BBE, dbx or Drawmer as claimed by Mackie as part of their marketing campaign against us and which was later erroneously reported by Wikipedia and even CDM.

In our first two decades, most of our products were designed to follow market leaders with similar features and appearance, at a lower cost. This value proposition upset many of our competitors while at the same time earning us a huge fan base among customers. I fully understand that many of those competitors would be frustrated by our ability to deliver equivalent or better products at significantly lower prices and that is the source of much of the anger directed at us by them.

Since the Aphex case we have been sued several times and we equally had to sue competitors over infringement of our IP. This happens in every industry and is part of a fierce and competitive landscape.

However, to be clear, we have not lost any substantial IP case since the Aphex case 30 years ago and legal cases are a matter of public record.

We are committed to never engage in any activity that willfully infringes on the intellectual property rights of any company or individual. However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

We welcome criticism

I am a big believer in free speech and welcome any form of constructive criticism, as this is the only way for us to learn and improve. We also don’t mind any comments made or language used by individuals as this is a matter of personal choice.

It becomes sensitive when incorrect or defamatory statements are made by competitors and the media. While there is free speech, words do have consequences and since we are all bound by the law, the rules should be applied equally to everyone.
Once again, I understand that people have their opinions and preferences and I fully respect that. I also understand that some people don’t like me or our company, and chose not to buy our products which I respect, too.

Since we started our company 30 years ago, we have always carefully listened to our customers and built what they wanted us to build. Sometimes people would request us to improve an existing product in the market, sometimes they would come up with a complete new idea. In fact many of the ideas for our most successful products have actually come from our customers and for that we are immensely grateful.

However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

This is the philosophy I started the company on 30 years ago, and this is the philosophy that will carry us into the future.

Thanks for listening.

Uli

Pictured: a mock-up of Music Tribe City.

The post Behringer responds to reports, defends reverse engineering appeared first on CDM Create Digital Music.

Behringer threatens legal action against a site that called it a copycat

Midifan, a top music portal and online magazine in China, has received notice from Behringer, threatening legal action over stories by Musicfan that called Behringer a “copycat.”

Midifan is a Chinese-language site, but evidently a significant one for that market. And Nan Tang, CEO and founder of the site, is also co-founder of 2nd Sense Audio, the software developer behind the WIGGLE synth and ReSample software. Nan, also known at musiXboy, contacted CDM with the news.

Nan has provided CDM with Midifan’s own English translation of the legal letter, as well as a statement in English. Translation is an important factor here, given we’re talking about libel, but Midifan’s English translations here for what they wrote are “shameless” and “copycat.”

Here’s the statement from Midifan:

Behringer sued Chinese media Midifan for saying them COPYCAT and shameless

Chinese portal website Midifan has received a lawyer’s letter from Behringer last week. Behringer claimed the fact that Midifan repeatedly reporting news about Behringer without any factual basis and using insulting words such as “copycat”, “shameless” has caused the reputation of the four clients (Uli Behringer, MUSIC Tribe Global Brands Ltd, Zhongshan Behringer Electronic Co., Ltd and Zhongshan Ouke Electronic Co., Ltd) to be seriously damaged.

The law firm worked for Behringer also claimed that they have reported to its local public security agency and plans to pursue legal responsibilities through criminal way.

A manufacturer taking legal action against music press for being critical or even calling it names is as far as I know fairly unprecedented. I’d almost call it shamel– actually, let’s just stick with “unprecedented.”

But it appears the letter is threatening criminal libel proceedings in China, not just civil charges. Criminal libel can carry more serious consequences; as reported in 2013 by The Guardian and Bloomberg, criminal libel in China can carry up to a three year prison sentence.

Ceci n’est pas une imitateur.
Behringer showed … uh… tributes to the Roland SH-101, , Roland VC-330, Roland TR-808, ARP Odyssey, and Sequential Prophet One in Berlin last month.

That said, in China as internationally, the law states that something is only libelous if it’s untrue. The “copycat” reference refers to Behringer gear shown at Superbooth, for instance, that literally was designed to look and sound like classic instruments (Roland TR-808, Sequential Circuits Prophet One, etc.). “Shameless” is a matter of opinion. Arguably, too, sending cease and desist letters to media outlets because they called you shameless and a copycat would presumably also not be a great way to demonstrate you possess shame.

Behringer Pro-One, 808, ARP Odyssey Clones At Superbooth 2018 [Synthtopia]

What might make Midifan different from other English-language sites that used similar language? It may be relevant that at the end of last year, Midifan reported on striking workers in a manufacturing facility Behringer owns, where labor complained about health issues. (That article has a number of photos, as well as English-language response from Behringer managers instructing workers to keep windows closed.)

For their part, Midifan have posted a response on their site (no English translation available):

https://www.midifan.com/modulenews-detailview-29955.htm

Midifan tell CDM that they have removed all references to the words “copycat” and “shameless” and replaced them with “more neutral words like “TRIBUTE and CLONE.”

Here’s the full letter from Behringer as translated by Midifan into English.

Lawyer’s Letter
In Relation to Urge You to Stop the Willful Infringement Behavior

Dear Sir or Madam,
Upon the entrustment of Zhongshan Behringer Electronic Co., Ltd (hereinafter referred to as Behringer Corporation), Zhongshan Ouke Electronic Co., Ltd (hereinafter referred to as Ouke Corporation), Uli Behringer and MUSIC Tribe Global Brands Ltd, Guangdong Baoxin Law Firm sends you the lawyer’s letter to your company on matters that urging you to stop the willful infringement behavior.

In accordance with the information and statements from four aforementioned clients, MUSIC Tribe Global Brands Ltd is the registered holder of the trademark “BEHRINGER”. On the basis of the authorization of MUSIC Tribe Global Brands Ltd, Ouke Corporation has the right to use the “BEHRINGER” trademark to engage in production and business activities within the scope of relevant authorizations. Behringer Corporation,whose English name also includes the word “Behringer”, is an affiliate enterprise of MUSIC Tribe Global Brands Ltd and Ouke Corporation.

Since 2017, you have continuously published articles such as “Exclusive breaking: Behringer’s recent crazy copycat stems from a trap of imitation chip more than a decade ago.” “, Can’t stop copycat: Behringer will make the Eurorack module next?” , “Shameless: Behinger exhibited copycat of TR-808, SH-101, Pro-One and Odyssey” on the website “https://www.midifan.com/”

and

Tencent WeChat public account “Midifan” without any factual basis, claiming that the above four principals have plagiarized the products of other companies. Beyond that, the fact that you repeatedly used insulting words such as “shameless”, “copycat” has caused the reputation of my four clients to be seriously damaged.

In view of this, Ouke Corporaiton has reported to its local public security agency and plans to pursue your legal responsibilities through criminal way. Meanwhile, the four principals entrusted me with this letter expressly:

Please be sure to remove all the insulting infringement articles four principals involved and other related information posted on the internet platform such as “https://www.midifan.com/” and Tencent WeChat public account “Midifan” , etc. within seven days of receipt of this letter, and issue a clarification announcement within the above-mentioned period to eliminate all adverse effects caused by the negative reputation of the four principals due to your inappropriate comments.

If you fail to perform the above obligations within the time limit, the four principals will continue pursuing your legal liabilities (including but not limited to
the criminal responsibility for defamation) through legal ways. All consequences and expenses resulting from this shall be borne by you.

In order to avoid inconvenience, please weigh the pros and cons and perform the above obligations in a timely manner!
Best regards.

CDM has reached out to Music Tribe / Behringer for comment via their public contact form, but has not yet received a response. Curiously, I found many of my colleagues don’t have direct, current media contacts with the company.

Oh, also – it seems Germany has criminal libel laws, too. So, naturally, let me then reiterate – what I saw at Superbooth were … meticulous recreations of famous electronic instruments of yore by a …. manufacturer of equipment that is … Behringer.

Now, please, I don’t want to go to German jail. Aber wenn ich ins Gefängnis gehe, wird sich mein Deutsch verbessern.

http://midifan.com/

The post Behringer threatens legal action against a site that called it a copycat appeared first on CDM Create Digital Music.

As PRS battles SoundCloud, what does it mean for your own music?

soundcloudhq

PRS for Music, a UK performing rights organization, at the end of last month sued SoundCloud for copyright infringement on behalf of its members.

The action may prove a decisive moment for the Berlin-based streaming service. It represents a collision between SoundCloud’s approach and the organizations involved in administering copyright, and more broadly, between the conventional models for sharing and monetizing music and those evolving on the Internet.

I spoke to representatives from PRS and SoundCloud to try to get greater clarity. Those responses were naturally a bit guarded, as the two are actively engaged in legal action. However, there’s a lot you can read into what they’ve said, and the conflict more generally.

Even if you don’t use SoundCloud, there are some major implications for the way in which music is shared online – let alone if you are specifically licensed by PRS. (And you don’t have to live in the UK to be part of this legal action – more on that in a bit.)

First, let’s deal with the public statements made about the case, and understand what we’re talking about. When copyright laws were written, the Internet didn’t exist. This has produced a somewhat counter-intuitive distinction in the work itself (the composition – the thing you’d traditionally have written on paper), and the recording of the work. Those are licensed separately, and that’s because the legal notion is that the transmission of a recording is both a “performance” of the work itself, and a use of the recording material. That is already somewhat confusing in the United States, and then when you stream on the Internet, you’re subject to separate laws in every single separate provinciality abroad.

When we’re talking about PRS, we’re talking about performing rights. These produce royalties that are administered to members representing songwriters and publishers; if you self-released, you’re effectively both. If you’re a member of ASCAP, BMI, SESAC, GEMA, or one of another organizations, PRS is actually also collecting royalties for your music in the UK.

That means it’s very possible you, the reader, are in principle named in this suit. Here’s where things get a bit weird. Let’s say you’ve got a song you recorded, and you’re an ASCAP member in Texas. And let’s say you – or your label – uploaded that music to SoundCloud, which you very likely have the right to do (it’s your music). Now, technically, your own upload just infringed your own copyright, if PRS claims that it needed a performing royalty. In fact, theoretically, if you uploaded your music to your own site – not SoundCloud’s – you would still be owed a performing license, one paid by yourself through PRS and back to you again. It’s just unlikely that if it were your own site, or your label’s site, anyone would show up trying to enforce the copyright. SoundCloud is different.

By the way, even SoundCloud explains that it is possible to infringe your own copyright. (It’s possible to do this even on your own site – which is why I think not joining a performing rights organization may become a compelling possibility to consider in the digital world, depending on your particular use case). From their copyright case:

Can you answer “no” to all of the following questions?

Were you signed to a record label when you recorded the track?
Do you have a publishing deal?
Are you a member of a performing rights organization or collecting society?
Have you licensed your track to anyone else?
Does the track contain the entirety or any part of someone else’s song(s) Is it based on someone else’s song(s)?

Now, more broadly, SoundCloud also clearly has a lot of music that wasn’t uploaded directly by creators. Apart from the frequent use of DJ mixes, there’s some content that is simply straight out infringing. But to be clear, this lawsuit doesn’t differentiate between those cases: it’s claiming royalties for all three.

PRS sent a letter to its members (now, this wasn’t addressed to the many more overseas artists it represents, but just those who are directly registered with PRS):

Dear Member,

PRS for Music begins legal action against SoundCloud

After careful consideration, and following five years of unsuccessful negotiations, we now find ourselves in a situation where we have no alternative but to commence legal proceedings against the online music service SoundCloud.

When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer, so it’s our job to ensure we collect and distribute royalties due to them. SoundCloud actively promotes and shares music. Launched in 2008, the service now has more than 175m unique listeners per month. Unfortunately, the organisation continues to deny it needs a PRS for Music licence for its existing service available in the UK and Europe, meaning it is not remunerating our members when their music is streamed by the SoundCloud platform.

Our aim is always to license services when they use our members’ music. It has been a difficult decision to begin legal action against SoundCloud but one we firmly believe is in the best, long-term interests of our membership. This is because it is important we establish the principle that a licence is required when services make available music to users. We have asked SoundCloud numerous times to recognise their responsibilities to take a licence to stop the infringement of our members’ copyrights but so far our requests have not been met. Therefore we now have no choice but to pursue the issue through the courts.

We understand SoundCloud has taken down some of our members’ works from their service. With our letter of claim, we sent SoundCloud a list of 4,500 musical works which are being made available on the service, as a sample of our repertoire being used, so that they understood the scale of our members’ repertoire and its use on the service. We asked them to take a licence to cover the use of all our members’ repertoire or otherwise stop infringing.

SoundCloud decided to respond to our claim by informing us that it had removed 250 posts. Unfortunately, we have no visibility or clarity on SoundCloud’s approach to removing works, so it is not currently clear why these particular posts have been selected by them given the wider issue of infringement that is occurring. Ultimately, it is SoundCloud’s decision as to whether it starts paying for the ongoing use of our members’ music or stops using these works entirely.

If the streaming market is to reach its true potential and offer a fair return for our members, organisations such as SoundCloud must pay for their use of our members’ music. We launched our Streamfair campaign in June to raise awareness of this issue and highlight how music creators need to be properly remunerated from streaming. We believe that all digital services should obtain a licence which grants them permission to use our members’ music and repertoire, in this case the works of songwriters, publishers and composers.

The streaming market cannot fairly develop unless this happens. We have always been pro-licensing and pro-actively work with organisations in order to propose an appropriate licensing solution for the use of our members’ works.

We remain hopeful that this matter can be resolved without the need for extended litigation. Members will appreciate that this is now a legal matter and our ability to communicate around it is therefore limited by the legal process. However, we will try to share information and updates whenever we can.

Emphasis mine. There are already several points here to digest:

First, this has been ongoing for five years – a point that’s likely to come up in legal proceedings.

It’s also telling that SoundCloud believes it doesn’t need a license for UK and European streaming. Now, that may sound really strange, but remember that this doesn’t mean the music would be entirely un-licensed or even un-monetized.

And this sheds some light on take-down notices – or, at least, it makes it clear that we’re still in the dark. PRS is expressing the same frustration with SoundCloud that a lot of SoundCloud users have: the service simply isn’t explaining how it decides to take content down. And it seems to be fairly random: the 4500 works listed by PRS here are presumably a small fraction of everything it could have sent, and then SoundCloud removed a small fraction of that (if PRS’ statement is accurate).

But it’s also historical here that PRS continues to rigorously defend the need for licensing. And I wonder, actually, why that isn’t a matter for open debate. The traditional music stakeholders – even the ones that may represent you – continue to argue for licensing as the panacea for streaming. But as I said, the entire licensing model is complex. It’s also weighted heavily toward bigger labels and publishers, because they can sign deals with artists that ensure them a big piece of the pie, and then aggregate a lot of different content so the royalties add up.

That is, there are two points with which you might disagree. If you’re a lawyer, you can argue the details of whether SoundCloud is genuinely liable for this specific license (not to play music for free, but to pay for the PRS license in Europe). And if you’re an artist, entirely independent of that, you might ask whether PRS’ licensing scheme is best suited to making you any money on the Internet. If you believe the answer is no, you shouldn’t join a performing rights organization. Performing rights organizations would like you to believe the answer is yes.

What’s unclear is what PRS is suing for. There’s an implication here that by arguing with SoundCloud’s Safe Harbor status, PRS could sue SoundCloud not just for royalties now, but for all back royalties over the course of half a decade. I think that would almost certainly shutter the entire site overnight, which could have a devastating impact on artists and labels.

I asked PRS explicitly what their goal was, though, and it’s clear that they remain primarily interested in the site operating with a license in place. The thing is, if PRS did shut down SoundCloud, while it would prove a point, it would both anger members who use the service and by definition would eliminate royalties on hundreds of millions of future plays.

For some really good analysis of this statement and that quote in particular, see Music Business World this week
PRS VS. SOUNDCLOUD: 5 KEY TALKING POINTS TO CONSIDER

I think the key is, PRS and the labels really need SoundCloud as a big entity for licensing to work at all. See also their deal with Spotify. This sort of homogenization of streaming makes the job of licensing far easier.

SoundCloud wouldn’t comment directly on this case to CDM (PRS did), but instead a spokesperson for the company pointed me to their existing statement:

It is regrettable that PRS appears to be following this course of action in the midst of an active commercial negotiation with SoundCloud. We believe this approach does not serve the best interests of any of the parties involved, in particular the members of the PRS, many of whom are active users of our platform and who rely on it to share their work and communicate with their fanbase.

SoundCloud is a platform by creators, for creators. No one in the world is doing more to enable creators to build and connect with their audience while protecting the rights of creators, including PRS members. We are working hard to create a platform where all creators can be paid for their work, and already have deals in place with thousands of copyright owners, including record labels, publishers and independent artists.

There’s not much here that answers PRS’ claims; we actually know more about SoundCloud’s likely position from the PRS statement than the SoundCloud statement. But note that the deals they have in place don’t mention performing rights organizations – and remember, there are two kinds of licenses we’re describing here.

PRS did clarify their position a bit for CDM. Here’s that exchange:

CDM: Whose works does this suit cover? I know there is a representative list, but is the case built around all PRS-represented music? I assume it includes, for instance, partners like ASCAP (when played in European territories)?

PRS: Our legal action covers all PRS for Music member repertoire.

PRS recently announced a multi-territory deal with Spotify Europe. How are those royalties calculated? This is some sort of fixed statutory rate per play?

PRS: There is no statutory licensing rate in the UK, although the Copyright Tribunal was established to adjudicate licensing disputes in the UK between copyright owners (incl. collecting societies) and businesses using copyright music on the issue of the reasonableness of rates, amongst other things. In relation to Spotify, this is a bespoke negotiated licence and as such the terms are confidential.

Ed.: Okay, here my question shows a bit of ignorance – I’m referring to the kind of statutory licensing set in the United States, where the federal government fixes rates. I’ll be the first to admit that while I’m definitely not an expert on US IP law, I’m even less familiar with the law in the United Kingdom.

But notice – PRS want you to believe that licensing is the way to go. But the deals on which you depend are completely confidential. So you’ve got a choice: SoundCloud not telling you why they’re removing your music, or PRS not telling you how their licensing deals work. Transparency isn’t really coming from any of these players here. And the entire system at this point depends on one-by-one, independent negotiations.

Next, I dealt with the scenario above – creators registering their works who then upload music to a service in a way that infringes not someone else’s copyright, but their own.

For many of our readers – and again, many of them themselves members of PRS (or other performing rights organizations) – the material on SoundCloud is work they’ve uploaded with the intention of sharing. What would you say to those artists when they find that this use on SoundCloud is being targeted by PRS? Isn’t there some conflict of interest when, for instance, SoundCloud asks them to take down music they uploaded themselves, in response to a complaint by a performing rights organization? Or do you believe those artists are not acting in their own self-interest when they upload music in this way?

PRS: When a writer or publisher becomes a member of the Performing Right Society, they assign certain rights to their works over for us to administer. This means we are then able to efficiently and effectively license organisations for their use of our members’ work, then collect and distribute royalties back to the members. Licensing protects the interests of all of our members, very many of whom are having their content used by SoundCloud without their permission, expressed or otherwise. Our members all agree that they should be paid to have their content used by third parties and sometimes the achievement of this goal means having to make difficult decisions for the collective good. We understand that many of our members use and appreciate the service provided by SoundCloud. At PRS for Music we can also see the value that a service like SoundCloud could add to the market if it were operating with proper licensing. But as things stand, our members receive nothing for their content being consumed on SoundCloud.

There are a couple of important points they make in response. One, as I said, if this were just creators uploading their own music, it would be one thing. But as was the case with YouTube, as long as these sites have mixes and so on, it’s another story.

Two, though, note that PRS also recognizes their own members are SoundCloud users. That makes me wonder if they won’t try to use this legal action to find a deal – which is what I ask next.

What’s the end game here? You say you hope not to have extended litigation, but do you believe SoundCloud owes back royalties for the five years during which you’ve been in negotiation?

PRS: The primary aim is to move SoundCloud towards having a fully licensed service that fairly pays our members when their music is used on the service.

That’s important, as this means the goal is a settlement in which SoundCloud keeps operating.

Now, it also made sense to talk to SoundCloud. The only way that company – billion-dollar valuation or no – can work with stakeholders is if it’s actually bringing in money as it’s promised. Eric Wahlforss, who also spoke on a panel I hosted this summer, responded to those issues.

CDM: Am I correct in understanding that monetization – and presumably, revenue that would impact licensing music – is going to be based on some combination of subscription and advertising revenue?

Eric: On SoundCloud enables our Premier Partners to monetise their content through advertising, and to earn a share of the resulting revenue. This will also include a share of revenue from our subscription products once they’re launched.

We’re now over a year into the On SoundCloud program. Are there advertisers onboard that you can talk about? That is, I’ve seen some of the publishers; how is the monetization picture? Earlier this year you mentioned $1 million in advertising payments, is there a new number?

Eric: Since the launch of On SoundCloud we’ve paired brands like Jaguar, Sonos, Microsoft, Taco Bell, Asics and Axe with SoundCloud creators like Sizzlebird, ILoveMakonnen, Metro Boomin, Viceroy and Big Data. These partnerships have helped artists shine an additional spotlight on their work, while getting paid in the process.

Our native offering, ‘promoted tracks’ puts branded content at the top of every SoundCloud users stream to drive engagement: plays, likes, reposts, shares. For example, HBO has worked with SoundCloud to launch their shows including ‘Catch the Throne’, which was used to promote this year’s series of Game of Thrones.

We’re yet to release new payment figures but the number is obviously growing month on month.

Ed.: the absence of payment figures here is a bit frustrating, actually – cue Dr. Evil quote about “one millllllion dollars.” Then again, remember YouTube faltering early on in ad revenue. It’s tough. The one ace in SoundCloud’s hole is, at least they have creators willing to pay for subscriptions. That makes them very different from services like Spotify, which are really mostly about consumption.

Is there any updated timeline as far as rolling out On SoundCloud to more users?

Eric: On SoundCloud remains invite only at the moment and we’re still adding new partners as fast as we can. We started with 20 select partners representing 2,000 labels at launch, and have now grown to over 600, representing over 25,000 labels, many of whom are independents. These include Merlin and Warner Music Group, as well as a landmark partnership with the National Music Publishers Association in the US. Our goal remains to provide monetization opportunities for all creators on the platform.

The addition of labels is the important one, even if some big players still aren’t onboard. And that also shows some overlap between the stakes of labels and performing rights organizations.

Is providing paid listener subscriptions still on the table? (Am I correct in understanding that’s an option?)

Eric: We will be launching listener subscriptions in the future. Our subscription philosophy is about delivering subscribers additional functionality, and the free tier will continue to be a core part of our platform for creators and listeners in a way that is complementary to our subscription services.

Conclusions

Let me be perfectly frank: I think as creators, we want this to work out. First, PRS has a point. Without getting into the fine points about which licenses work in which localities internationally, SoundCloud simply has to do a better job licensing the music on its site – like, licensing it at all, in most cases. I think we should have a debate about what sort of copyright framework makes sense, and whether licensing is really a model that works for artists. I know the people who believe that it does work are often very open to talking about that, so this can be a vigorous and valuable debate.

But we can only have that discussion if the basis of copyright law remains enforceable and (while this may seem near-impossible) enforceable internationally. Even those of us who are advocates of open source licensing or Creative Commons licensing depend on copyright law as a foundation. (That’s why you have so many lawyers involved in those issues.)

At the same time, whatever high-minded argument PRS wants to make about licenses, it’s ugly if we imagine a world without SoundCloud. Labels depend on streams as a window to actually selling music direct; artists rely on data from listeners and exposure and the ability to promote events and sell tickets. These activities very often far outweigh royalty checks in terms of actual monetary value. If you break SoundCloud, you may well break a lot of the way music is working for artists right now.

This is one to watch. I think it will remain important to see how the SoundCloud case unfolds, because it has implications far beyond the service. And we should also talk about alternatives to SoundCloud that do have licensing in place, for no other reason that I think no single service can serve everyone. YouTube dwarfs Vimeo, on the video side, but a lot of very specific creative niches find Vimeo invaluable. Yet there isn’t yet a “Vimeo for sound,” even as SoundCloud is clearly “YouTube for sound.”

Hey, that was fun! Let’s go listen to some music.

Previously:
Native Instruments CEO, SoundCloud CTO talk music’s future direction

The post As PRS battles SoundCloud, what does it mean for your own music? appeared first on Create Digital Music.

Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion]

When we last joined the American courts’ impossibly damaging precedents for copyright law, an appeals court decided to blow away the de minimis doctrine for sampling. That’s “de minimis” (Latin), as in “size matters not” (um… Yoda).

The idea was, there was no need to measure the significance or size of a sample in the N.W.A. song “100 Miles and Runnin’.” The court helpfully offered at the time, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Here’s a reasonable summary (my Keyboard article I think is not online):

Bridgeport Music, Inc. v. Dimension Films

In fact, many at the time thought that stifling creativity is exactly what could happen. Without a de minimis standard, or “bright line test,” any sample becomes infringement. A common sense law wouldn’t do that: almost any logic of justice looks at harm and amount. (Imagine if shoplifting counted stealing a corner of a leaf from a strawberry.) With digital sampling, just working out where sounds have come from can be a challenge. As if to illustrate that point, you’ll notice that the N.W.A. case involved Dimension Films. The N.W.A. sample was licensed – it just lacked mechanical rights, so Bridgeport descended on an unauthorized use of the sample (by way of the song) in a film.

Well, here we go again:

Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit [Rolling Stone]

Here’s the irony: the Bridgeport case was so over the top that it didn’t stifle creativity. It stifled any lawsuit that would dare cite such a dangerous precedent. Germany, the other country you can count on to be more or less totally insane when it comes to licensing (hello, GEMA overlords), reached a similar case later, but that was it.

In 2005, when the case was decided, I was researching the article for Keyboard. Back then, recording and publishing entities were already scared of the Bridgeport Music precedent. Why? Because it massively expanded potential liability. If a sample could be unrecognizable but still infringement, any material could infringe. A rights owner wouldn’t want to bring a case using that argument over one piece of music, because they might face similar suits.

In other words, the court going nuclear meant mutually assured destruction for everyone.

Well, if you’ve caught the case over Robin Thicke’s “Blurred Lines,” my view is that we now essentially get the same level of absurdity for musical content.

The question is not whether “Blurred Lines” is a good song, or even whether it’s original. Truth be told, it isn’t. It is clearly a tune that borrows heavily from the earlier Marvin Gaye song – it’s essentially a new song written in the old template. And if it comes to taste, many of us would choose Marvin Gaye over Robin Thicke. Ahem. (Even before we get to the ridiculously sexist video.) But taste isn’t what’s an issue. The question is what constitutes infringement in the eyes of the law.

The good news is, the case brought by the Marvin Gaye estate at least does apply some kind of de minimis logic. Musicologist Judith Finell apparently diagrammed some eight similarities in the song, and the closing arguments by the Gaye estate lawyer leaned heavily on that fact. You can follow the closing arguments in the excellent blow-by-blog coverage The Hollywood Reporter has been doing:
‘Blurred Lines’ Trial: Marvin Gaye’s Family Seeks $25 Million in Closing Argument

The bad news is, the actual material isn’t a sample – not in the digital sense as in the N.W.A. song, but not even in the literal musical sense. There are musical gestures and structures that are similar in “Blurred Lines” to those in “Got to Give it Up.”

Whoa – wait a minute. I’m not sure I’d be able to wax poetic about the originality of Robin Thicke, Pharrell Williams and T.I. in the way that their lawyer Howard King does. That’s why I’m not a lawyer. (It didn’t help that Thicke actually testified he was drunk and high on Vicodin at the time.)

But I agree with King’s argument says that “the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.” (See Rolling Stone at the time, covering a pre-emptive lawsuit by the “Blurred Lines” creators under the threat of a lawsuit.) For kicks, our friends at Bridgeport Music were again involved in the suit (those parties reached an agreement).

You can listen to the comparison at top and get a sense of just how wild this gets. As lawsuits around samples first started to pile up in the hip hop world, as those artists were essentially punished for using digital sampling hardware, the solution was to simply play a part on an instrument.

And it’s not as though any of this sort of copyright law or sampling is helping. Years of “Amen, Break” samples left the actual drummer to die penniless – the very thing intellectual property law is supposed to keep from happening. By the standard of this decision, the opposite extreme is true: you couldn’t even play your own breakbeat ever again, because someone else could sue you.

Imagine the history of music if, not only you couldn’t “sample” a few notes by playing them again, but you couldn’t make any musical gestures with similar grooves, rhythmic structures, chord structures, or forms.

Congratulations: you’ve broken music.

Even worse, it seems that the solution would be to make music so generically similar that it wouldn’t sound like anything – you know, more or less a lot of the chart-topping music you hear today. Compare the history of jazz and blues, for instance, which produced creativity partly because so many of the stock elements of the songs were intentionally copied from one piece to another.

To that, the likes of the Gaye heirs now say to any new music, all the things you are, are mine.

And yes, that counts as a chilling precedent.

You don’t really think you’re going to get away, do you? Good luck, brothers.

Hey, the infringing song was pretty damned good, right?

Update:

For a great comparison of the two songs (thank you, Facebook friends), turn to musicologist Joe Bennett, who transcribes the two songs.

Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?

(Spoiler alert – but these excerpts are almost comical to read, if this case weren’t so stupidly tragic.)

When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye bassline is based around the pentatonic minor scale.

And regarding the Thicke song (chortles all around):

Thicke’s song has more cowbell.

And here’s the best bit, from the legal team behind the Gaye children: “[Thicke has copied] the defining funk of the cowbell accents.”

Cowbell2

Hilarious. So, that makes essentially all music illegal.

If you make music, I would read this case to say you have almost certainly infringed copyright. In fact, if you haven’t, you’re probably terrible at music.

But see my comments above about Bridgeport. It’s such a stupid precedent, it’d be insane to ever apply it.

The post Robin Thicke Judgment: The Day Copyright Law Died, Again [Opinion] appeared first on Create Digital Music.

Opponents of US SOPA Legislation Gaining Momentum on Blackout Day; Musicians Have a Stake

It’s been called, bluntly, “Internet censorship” by opponents. And now, US legislation that claims to curb piracy faces mounting challenges as that opposition grows, particularly as the White House warns it will block the bills.

Today, even as a flood of delightful new music toys become available, it’s worth pausing to consider why this matters – and, if you vote in the United States, to call your Senators and Representatives (again, if needed).

Many of us who create music believe the dynamic, user-driven nature of the Web is our best chance at a bright future. Free and open Internet communication is part of the fabric of societies around the world, and for music, offers a chance to share what we do, to discover new work, and to build our musical lives. They can be the basis of some of the most vibrant businesses that support musical practice, as well as contributing intangible but invaluable creative, technical, and spiritual input into what we make.

I wanted to collect today some of the best writing on the topic, from people who know this issue far more intimately than I do. Thanks to readers for their tips on this, as well.

Essential Reading

Ars Technica has some extraordinary coverage today. In particular, see:
Even without DNS provisions, SOPA and PIPA remain fatally flawed [Ars Technica] (goes into very detailed specifics of the legal issues)

What does SOPA mean for us foreigners? [Ars Technica] (The answer might surprise you: one of the flaws with SOPA is that the definition of “foreign” doesn’t even make sense. But in short, you don’t have to be in the US to be impacted by this legislation; foreign sites are specifically singled out for action. Do read the whole article; another huge, detailed report.)

How PIPA and SOPA Violate White House Principles Supporting Free Speech and Innovation [Electronic Frontier Foundation]

Google and Facebook and the like have come under attack as big corporations that benefit from Internet use and, some critics argue, from piracy. Why should they be using their deep pockets to talk about this issue? Google’s take today I think responds to that neatly. They have a beautiful infographic of a megaphone that counts all the critics – including law and Constitutional experts and human rights and pro-democracy groups – opposed to this legislation. And while I don’t know that Google always lives up to the “don’t be evil” mantra, I think digging into your deep pockets in this case is perfectly appropriate and defensible.
https://www.google.com/landing/takeaction/

The best report-in-a-nutshell comes from The Verge, and lawyer-journalist Nilay Patel:
Why The Verge and Vox Media are opposed to SOPA

In brief:

  • Sites that host user-contributed content are threatened by weaker safe harbor rules and high compliance costs.
  • Overzealous compliance by search and payment providers could make life miserable for the rest of us.
  • Significant flaws in due process and seizure.

Those kinds of problems threaten the whole Internet ecosystem of user-contributed work and threaten democracy and the course of law. (Uh, other than that, no problem here.)

Musicians Take a Stand

The evidence at hand makes it all the more disturbing to see groups of labels, content companies, and so-called artist advocacy groups using our name – the musical community – to claim this legislation is somehow good for us. Unfortunately, the analysis of people working in law and policy outside the content industry tell us otherwise.

At least one artist and regular CDM reader and friend, TRICIL, is blacking out his own artist site. Here’s what he had to say:

You may have heard of America’s ludicrous Stop Online Piracy Act bill that’s being brought forth for legislation.

In concert with Wikipedia, Boing Boing, and a host of other sites, I’ve “blacked out” tricil.net in protest for the next 24 hours.

For my fellow Americans, you can take action by visiting http://tricil.net and clicking the “CENSORED” bar on the top right to email your local congressman and spread the word. This will also “uncensor” my site, but you can put the bars back and take a screenshot if you’d like. ;)

If the bill passes, sites like Vimeo, YouTube, SoundCloud, and my own are all at risk. I’ve taken my material off of those sites for the next 24 hours to show what effect this legislation could have on independent artists.

Read more at americancensorship.org

Thank you for taking a stand with me,

TRICIL

Watch the Reasons Why It’s Bad

Clay Shirky has a great video out for TED:

CDM Under These Rules

I won’t be blocking out CDM today, as instead, I’d like to continue the conversation. But what could happen to a site like this one?

  • We could be targeted by a unfair compliance issue because of a complaint about content on this site – without fair protections and due process to allow us to respond.
  • We could see sites we rely on – from SoundCloud to Vimeo to YouTube – face restrictive rules and compliance that would threaten their livelihood, and strangle channels through which musicians and artists make their work known.
  • In a severe case, a compliance issue could literally shut down the site forever, especially given our limited resources.

But that said, I’m less concerned about a threat to CDM as the rest of the Internet on which we rely, the dynamism that made this site worth producing in the first place. And as a citizen of the United States and a citizen of the Internet, I’m morally and ethically concerned about laws that deviate from Constitutional rule of law and common sense.

If you’ve found other reading on this issue or other ways to take action, I’d love to hear them.

Previously:
Opinion: US Internet Censorship Could Cripple Online Music Web; Where to Find Out More, Where to Act

And yes, you acted – and your action made a difference, as the opposition grows in strength and the legislation withers. Winning battles can sometimes be a good thing.

Opinion: US Internet Censorship Could Cripple Online Music Web; Where to Find Out More, Where to Act

If you haven’t been following the (excellent) coverage elsewhere, just how bad is the “Firewall of the United States,” the draconian Internet dystopia misguided legislation in the US proposes to create?

That legislation is so vague, so far-reaching, so poorly-designed, that it potentially threatens all kinds of sites musicians regularly use. And little wonder: a backwards legislation process in the US has locked out the very Internet and tech companies that have until now been glimmers of hope in a stagnant US economy.

The crux of this issue is the impact on legal sites, and democracy and speech online. For an alternative view, the MPAA argument is that existing Digital Millenium Copyright Act safe harbor provisions would continue to exist under the new legislation, thus protecting legal sites – like this one. However, I find compelling the arguments of speech and legal policy advocates who point to differences in the way the enforcement mechanism works here, which could potentially invalidate that safe harbor and shift undue burden to publishers before they have time to respond.

Social networks, file sharing services, and other tools we use (lobbyists, for instance, call out even things like MegaUpload as “rogue”) are endangered.

The presumed answer, that “you’ll be fine if you have nothing to hide,” is the worst kind of defense for what can only be described as bald-faced censorship. Because complaints are guilty-until-proven-innocent, because the legislation is too broadly worded, the net effect is that any site publishing online could be brought down by a simple complaint – even from a competitor or aggrieved party. The history of “snitch”-based censorship of all the worst kinds is littered with cautionary tales of what happens when that’s the standard.

And that’s to say nothing of the potential for higher costs, negative growth, and legal burdens on the entire Internet service ecosystem on which sites like this one depend, not to mention new DNS security chaos triggered by turning the US – still the largest Web consuming country – into something that resembles China, Iran, and Syria.

An alliance of people who claim to speak in the name of musicians, content creators, and copyright holders are right now proceeding on a course that would destroy a lot of the most innovative tools that protect your livelihood. They have some reasonable intentions in mind – a justifiable fear of big sites that flaunt copyright rules to share anything. But they extend that into a policy that unjustifiably expands its reach to legal sites. That’s why:

Google / YouTube, Facebook, Twitter, and other sites that have helped us spread the word about our music are opposing it, afraid it could shut the entire sites down or usher in a new, more censored, shrinking network. (Heck, even LinkedIn and Mozilla are worried, and a site that shares resumes hardly seems the kind of “rogue” and pro-infringement villain the record industry keeps trying to paint as its critics.)

Kickstarter, the tool that has helped artists fund themselves and do preorder sales, is opposing the bill for fear a single instance of infringement could block everyone’s projects.

Tumblr, a key publishing platform used by many musicians and artists, warned its users via a dashboard that the legislation threatened their ability to express themselves online. Tumblr has a specific call to action.

Democracy activists worry that this silence voices of democracy around the world by blocking the tools they use to get around censorship (ironically, by creating similar censorship in what had been a country with online freedom).

The ultimate irony: because the SOPA legislation would block DNS and not IP addresses, it would do little to stem actual piracy of music and video. Instead, it threatens the freedom of the artists themselves to use these tools.

And again, because you could see an entire website blocked, not just a specific infringement, the legislation threatens to rob artists and musicians of tools on which they rely to promote their own music that they themselves own.

None of this has stopped the record industry lobbyists from remaining full entrenched in their position. For instance, this week, RIAA’s Senior Executive VP Mitch Glazier responded in an article headlines:

RIAA Question To Rogue Sites Critics: What Specifically Is Your Answer?

Glazier’s argument:

The next time you hear a vague, sweeping critique, backed by the platitude that of course intellectual property protections are supported, we encourage you to ask: what specific legislative proposal do you have that would meaningfully address this problem?”

Actually, no. In the event legislation is really, truly insane, it’s not in any way the burden of the critic of that legislation to propose an alternative. Here, let me illustrate:

The Protect Humanity from Deer Ticks Legislation, which proposes to … burn down all the forests.

Critic: I have a proposal. Let’s not burn down all the forests.

See? It’s concrete, it’s specific. Yes, our critique is “vague and sweeping,” because the legislation in question is vague and sweeping and wrong.

It’s absolutely, totally valid to make the concrete, legislative action not voting for a bad bill. The RIAA ought to know that; it’s pretty basic lobbying.

Yet again, though, those organizations let down their labels, who are now struggling to find new growth and revenue, with legislation that hurts those same members. Who is the rogue, anyway?

There’s far better explanation of this legislation than mine, and it’s not too late to act:
http://americancensorship.org/ [Electronic Frontier Foundation, with brilliant infographics and detailed, fair background reading]

Stop the Internet Blacklist Legislation [EFF]

Stop the Great Firewall of America [New York Times op-ed from New America Foundation senior fellow Rebecca MacKinnon]

I need your help–please. Call your congressperson? [Terrific, straightforward editorial from an engineer, Matt Cutts – one who happens to work at Google, but writing on his own time]

SOPA, controversial online piracy bill, gains support as lobbying intensifies [The Washington Post early this morning, which illustrates to me in its quotes from the bills’ supporters just how out of touch they are]

Sham of SOPA hearings riles up key internet figures [Silicon Republic on how tech and Internet firms were locked out of the legislation’s creation]

Great, clear Lifehacker story on how this works and what to do

Shocklee.com has done a terrific job of covering this story as it evolved, speaking of artists, as well as via their Twitter feed

OpenCongress.org links to information on the bill, full text of the bill, co-signers, actions, supporters and opponents, and even dollar-sign figures on how much lobbyists on each side of the issue (yes, including opposition) have given to elected officials.

From there, you can read the bills, make up your own mind, and if you’re a US citizen, talk to the people who represent you in Washington.

H.R. 3261, the Stop Online Piracy Act
S. 968, the Protect IP Act of 2011

Among Senate bill opponents, as you can learn from that site – even though the Senate bill is at least a little less draconian – American Association of Law Libraries, American Library Association, and Human Rights Watch.

If you’re a citizen of the United States, I would ask you to call your Representative now. Tell them calmly (remembering, they may even be on your side, and regardless, they’re your elected representative) what you think.

If you do call your Representative, let CDM know what their office says; feel free to leave that response in comments.

Okay, actually, I also have a little question for the RIAA. Photo (CC-BY-SA) mjaysplanet.