Monthly Archives: December 2008

“Facebook Joins MySpace In Banning Project Playlist”

Reblogging PaidContent:

Facebook resisted a few days longer than MySpace but finally has given in to the RIAA’s demands that the Project Playlist app be removed for copyright violation.

The only surprise here is that it took Facebook this long to face up to reality: There was next to no upside for Mark Zuckerberg and company in fighting the big music labels, three of whom are suing Project Playlist. But there was plenty of downside: At best, the social network would end up squaring off against potential partners; at worst, it’s conceivable that it could end up being sued by the labels as well.

There is little or no litigation or legislation to support the proposition that Project Playlist is infringing. There isn’t enough established law of of any kind to protect Facebook from burning an unbounded amount of money in court, but that only applies if the majors decide to go to the mat with Facebook, and I can’t see why they’d make their stand in such a weak place.

What are Facebook’s alternatives? One alternative to Project Playlist is to have music on-site by cutting licensing deals in direct negotiation. Another option is to wait for a stronger proxy than Project Playlist, like YouTube, before standing pat. The other is to have only music which is explicitly permissively licensed, and uses a license that permits a commercial site.

My guess is the first.

christmas cover by little boots

Little Boots — Xmas Fun Times Video

Her singing is too straight for me. She does it just like you would on a union gig at a Holiday Inn. But that’s ok because she has her own aesthetic and she’s authentic on her own terms. It’s not *supposed to be* rough and raw in the punk rock way. The straightness and cheesiness of this might be coming from a smooth Philadelphia soul place, with hip-hop bling connotations. Or maybe it’s just the unpretentious way to approach the song and Little Boots has the gonads to ignore punk orthodoxy.

Oh, wait, is this illegal? How is the songwriter getting their cut on the play? How *should* they be getting paid, given that there’s no ad?

The RIAA redirects its lawsuit machine

I don’t buy the idea that the alternative to the sue em all strategy is a three strikes policy at your ISP.

I think the three strikes idea is mainly for saving face.

The sue em all campaign is not making a profit on settlements. The contrary — its very expensive. The overhead needs to be reauthorized once a year. In the latest reauthorization there was an examination of how well Sue Em All is working, and the finding was that it’s having no real impact. The labels have less money to throw around than before, so they care more and more about how much those 35,000 lawsuits cost. The whole thing was an expensive failure. The three-strikes-ISP plan doesn’t seem incredibly effective to me, but it can hardly be less effective, and it doesn’t require as much lawyer time.

On the other hand, the labels have succeeded at forcing tech companies to negotiate for licenses. They did this through a series of court cases that ruined companies — the MP3.com case, the Napster decision, Grokster. Investors won’t put their money into companies facing that kind of risk. The investors insist on licensing.

It did turn out to be a waste of time to sue the masses. It was anything but a waste to sue businesses.

So the lawsuits will continue, but they will target ISPs this time. TimeWarner/RoadRunner will cut a deal for sure. AT&T I don’t know about. Is there anyone else?

And if the ISPs turn out to be a dry hole, so what. The rest of the money currently being blown on Sue Em All will go into Myspace Music and other licensing projects. At least those have a chance of success. The only thing the majors could all agree on is that none of them believed Sue Em All was going to make a difference.

Apple vs the clipboard? huh?

What’s the deal with Apple and copy/paste? It’s like they just don’t dig it. How come you can’t copy text to the clipboard in the iTunes client software?

The fact that you can’t copy/paste out of the iTunes client software on normal OS X, even though there’s support for it in the OS, makes me think that the lack of copy/paste on the iPhone is deliberate.

Maybe it’s control freakery for its own sake, or for the sake of copyright. Or maybe it’s that the operating system developers at Apple have found that the clipboard is permanent nightmare to support. Or maybe there’s some obscure usability study showing that users don’t understand the clipboard and Apple thinks apps should stop using copy/paste for interchanging data.

The whole thing is weird.

Warner vs the internet

YouTube, like every content licensee, lives or dies on its ability to let negotiations fail. If it can’t pull out of a negotiation without obtaining rights, it can’t get sensible royalty rates.

So in letting negotations with Warner get to the point where Warner pulled out, it did the right thing.

But there’s a bit of a doozywhatzit snafu here, what say. This negotiation issue means that no content site will ever be comprehensive. That means the only possibility for a comprehensive archive is to aggregate sites. But the rights holders are trying to fight to the death over linking sites — aggregators — like Playlist.com and Mixwit.

So how do you get a single unified web out of all this? Without aggregators we go back to the online world of Compuserv and AOL, the one before the world-wide-web.

why Myspace is giving Project Playlist the heave, and Facebook isn’t

TechCrunch reports that Myspace is giving Playlist.com the heave:

We first got word from MySpace users that their Playlist widgets are simply vanishing from their MySpace profiles earlier today. When we contacted MySpace they confirmed the ban, noting that they have received infringement notices from “major music companies”

The single most important part of the back story is that Playlist.com, aka Project Playlist, is in licensing negotiations with the labels. Playlist gets a lot of traffic via Myspace. Traffic is life itself for ad-sponsored sites. The labels can put a lot of pressure on Playlist by killing its traffic.

As far as Playlist is concerned, the legality of its widgets on Myspace is pretty great. Playlist doesn’t host the music files, just point to third parties (modulo the outstanding need to explore the DMCA and define the limits on linking to infringing parties). When Playlist is used via a widget embeded in a Myspace page, Playlist doesn’t even host the linking pages. There’s a distant chance that Myspace could lose in court. There’s zero chance that Playlist will.

It’s not likely that anybody’s liable for those links, but the labels are bruteforcing that issue in litigation and forcing link sites to spend a shitload of money exploring the DMCA with them. Another day, another fishing expedition, another $bundle in legal fees. That’s why Mixwit just said fuck it and shut down. If Playlist is in negotiations to license, it means that they prefer to get out of that game. And if the labels want to go balls to the wall on this Myspace jazz, it’s because there’s some contractual weirdness to explore.

Myspace has no incentive to have a confrontation with the labels. They’re partners with the labels in Myspace Music. The staff lawyers handling label complaints probably used to work for labels, and probably will again. They run into the nice RIAA fellows at the Starbucks. They’re paying crippling fees to license music, and they can’t compete with Playlist.com if it’s not doing the same.

And that gets to the real problem, which is the same as with webcasting. Linking to free-range MP3s under the DMCA safe harbors, like webcasting under the compulsory license, is an alternative to negotiation. Not having to negotiate is a negotiating advantage, giving sites like Pandora and Playlist.com leverage against the labels. The labels will get better royalty rates if they keep free range MP3s from competing with their own offerings.

What’s happening in the negotiations might be that Playlist.com is blocking on the right to mix free-range MP3s in with licensed streams. They might be trying to mix in non-interactive webcasting (aka CARP) plays, which pay lower rates than on-demand. Or maybe they’re just taking their time getting to yes because free range MP3s give them an alternative in the meantime.

And even worse, Myspace might be using widgetized streams from Playlist to supplement their own musical abilities. The question would be who pays for the license — Myspace or Playlist? And at whose royalty rate? In a way it’s good for Myspace to have Playlist taking the heat, though I suspect they actually –want– to cover the royalties themselves because it supports their current music strategy.

Myspace doesn’t have an incentive to play this all out. They benefit more by avoiding a fight with their partner and weakening their competitor.

Before going to the tape and seeing what Myspace has to say about all this, there’s one more crucial piece of ground. It’s Myspace hosting the links, not Playlist, so if anybody is infringing, **it’s Myspace** and not Playlist. Notice how carefully parsed Myspace’s statement is — they don’t say who or what is doing what if anything is happening.

MySpace has received notices of infringement about Project Playlist at different times from several of the major music companies currently suing Project Playlist. Per our policy of taking very seriously the requests of rights holders to block access to third party sites that are believed to be infringing, we have evaluated the requests of the major music companies and determined that it is in our best interest not to allow Project Playlist widgets on MySpace, and effective immediately, we will no longer be allowing these widgets within the MySpace platform.

Given what a complex ball of positioning that is, no wonder that Facebook denied the same request:

An industry source also confirms that Facebook has been served with the same notice of infringement. As of now, Playlist is still live on that site.

$100 MM in streaming revenues for UMG

Greg Sandoval says “Universal Music seeing ‘tens of millions’ from YouTube”:

a music industry source close to the label said Universal will likely book nearly $100 million in revenue from video streaming this year. That figure includes video-streaming money from all of the company’s partners, such as iMeem, MTV, and MySpace. The source said, however, that most of the cash comes from YouTube.

Let’s say Amazon is $40MM to UMG, And it’s 1/10th the size of iTunes music store revenues. That means UMG earns $400MM from iTunes. This would put streaming revenues at 1/4 the size of pay-per-download.

That’s big enough to be a come-from-behind story.

Unfortunately this data is very low quality. All you can really get from it is that it’s still plausible for streaming revenues to become equal to unit sales over the next 5-10 years.

Note that this puts YouTube at about 2.5 times the size of Amazon as a revenue source.

“white” music #2

About Cloudspeakers (from their FAQ):

Cloudspeakers … is a music aggregator of links to legal audios, videos and reviews. All these links are matched with the MusicBrainz Database. If you are the copyright holder of a review, audio or video we link to and you would like the link removed, please contact us. We aim to give the music fan a better experience by ordering the online music reviews, audios and videos.

Like Critical Metrics or Hype Machine.

But immune from death by lawsuit, unlike Hype Machine.

I love the Musicbrainz tie-in. This is a great usecase for Musicbrainz as a universal namespace for music that ties together sources from all over the internet.