Flutterby™! : Music 2002-03-27 18:08:43+00

Music

2002-03-27 18:08:43+00 by Dan Lyke 4 comments

I don't get the CARP webcasting license change hoopla, can't net radio stations just negotiate with good indie bands to play good music? Along those lines, I'm listening to the samples from Tympanic Band right now, I have no idea where they got the name, but they're delivering some good long rambling Grateful Dead style jams.

As I understand it, the really onerous thing about the ASCAP/BMI/RIAA licensing schemes is that no, you can't, since it's those groups' place to apportion your fees to the actual artists involved, which they promptly don't do.

I'm fully aware it may just be popular disinformation, but Jamie Zawinski says in his guide to legal webcasting, "Though [ASCAP, BMI, and the European SESAC] each represent disjoint sets of artists, they each represent a very large number of artists: so many that they just assume that you're playing something by someone they represent. So if you're not paying them, then they will sue you."

Live365's counsel John Jeffrey just said otherwise in a webcasted interview, but suggested to get the copyright permission in writing--so it sounds like there's still a legal vs practical distinction. (Later he emphatically said that yes, if you have permission from an indie band, you can play their music without licensing fees.)

Your item was right - you don't get it. First, it's vital to distinguish between the two separate fees you're lumping together.

Performance rights fees (ASCAP/BMI/SESAC), which have been in place for some time, are not governed by CARP or the RIAA, and are indeed computed on a "blanket" basis, and paid out to only the biggest songwriting/publishing hitmakers based on radio play. With rare exceptions there is no negotiation

RECORDING copyright fees are new, governed by the DMCA/CARP/RIAA, and are NOT supposed to be computed on a "blanket" basis. Instead, the ridiculously exhaustive reporting mechanism proposed under the CARP agreement is supposed to permit SoundExchange, the officially blessed fee collector, to compensate each and every copyright holder.

Yes, you are supposed to be able to negotiate a lesser (or zero) license fee than the statutory CARP mechanical, just as you can with the statutory mechanical license for re-recording someone else's song, and you can bet that powerful major labels will be doing just that, making deals with their favored webcasters while stiff-arming everyone else.

The problem, in practice, is that if you are an indie band or performer who releases a record, you are not going to have the time or energy to negotiate 279 separate & individual waivers or fee reductions with 279 random indie webcasters who pop up out of the woodwork. Some kind of clearinghouse must be established. And even then, people are worried what happens when your album gets picked up by a major after you have negotiated lots of streaming waivers - does the label you sign with have to track everyone down and cut them off? do they lose the right to any higher fee? does that impact your chances of getting signed at all?

Given that rarely is a record label going to pick up an artist and publish their earlier records as-is, at least there's going to be new studio sessions, it seems to me that KPIG or someone needs to write up a simple license, send it to all their favorite artists, and make up a little CGI that lets artists encode an MD5 hash in the ID3v2 tags so that licensing for a given MP3/Ogg/whatever can be determined automatically.

It seems like this is a chance for a few people to break the whole ASCAP/BMI thing and set up some good pay per actual play systems that would reward smaller artists. It screams opportunity, and might be a place for Internet radio to actually make a difference. Yes, it's challenging, but playing in to the current system won't do any of the smaller artists any good.