labels – Techdirt (original) (raw)

Stories filed under: "labels"

FCC Adds A ‘Nutrition’ Label To Broadband So You Can Clearly See When Monopolies Are Ripping You Off

from the transparently-ripped-off dept

After countless years pondering the idea, the FCC has finally announced that it’s going to politely ask the nation’s lumbering telecom monopolies to affix a sort of “nutrition label” on to broadband connections. The labels will clearly disclose the speed and latency (ping) of your connection, any hidden fees users will encounter, and whether the connection comes with usage limits.

The FCC provided this example of what the label will look like:

The FCC has toyed with this idea for years, but the effort could never quite get over the hump due to lobbying from telecom giants not particularly keen on transparency (if you weren’t aware, the telecom and cable industry has been ripping you off with bogus fees for decades with tacit U.S. regulator approval). That changed with the passage of the The Infrastructure Investment and Jobs Act, which mandated these new labels.

The effort still needs to be reviewed by the Office of Management and Budget under the Paperwork Reduction Act. And the FCC (short staffed due to GOP and industry attacks on FCC nominee Gigi Sohn) still lacks the voting majority to meaningfully implement any additional changes or potentially hold ISPs accountable should they play fast and loose with the labels. So this is all somewhat… aspirational.

While it’s great the FCC is demanding more transparency from monopolies that are busy ripping people off, it’s not doing much of anything to address the actual monopolies. You’d be hard-pressed to find FCC Commissioners from either party who’ve publicly even acknowledged that telecom monopolies exist or are a problem anytime in the last six years, much less pushed policies that address the issue.

What you get instead is a lot of nebulous, politically safe rhetoric about the “digital divide.” But no honest acknowledgement from the folks in power why this divide still exists in 2022 despite billions upon billions in government subsidies, tax breaks, merger approvals, and regulatory favors — all of which you were told repeatedly by industry were supposed to usher in the golden age of uniform, affordable broadband.

Yes, we’re about to spend $50 billion on broadband courtesy of the infrastructure bill and COVID relief. But telecom giants are working overtime to ensure the lion’s share of this money goes to their (mysteriously perpetually unfinished) efforts to “bridge the digital divide” and not to meaningful competitors within their existing footprints. Having an expert telecom consumer protection regulator that cares about protecting markets, consumers, and competitors from monopoly power still matters.

At the moment, telecom policy is generally ignored due to a myopic focus on “Big Tech.” What telecom policy does exist generally involves Republicans all but lobotomizing telecom oversight, and Democrats throwing an endless number of band-aids at the problems caused by mindless consolidation and monopolization (net neutrality! temporary discounts for poor people! nutrition labels!).

But very few people in DC have the political courage to attack or even acknowledge the real problem (monopolies) at its root. Being transparently informed you’re being ripped off is fine. Actually stopping monopolies from ripping consumers off via policies that encourage creative competition would be better.

Filed Under: broadband labels, digital divide, fcc, fees, fiber, high speed internet, labels, telecom, transparency, usage caps, wireless

North Carolina Sued By Flying Dog Brewery Over Regulatory Body Refusing To Allow Sales Due To 'Offensive' Label

from the it's-just-a-penis,-guys dept

Normally, when we talk about beer in these pages, we’re typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who’s design is too close to another’s. While this specific story doesn’t involve trademark law or disputes, it does still exist due to the creative practice of labeling.

Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog’s labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming “Freezin’ Season” ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well…

Still having trouble figuring out what the problem is? Well, it’s that little protrusion from between the outlined figure’s legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it’s actually a little tail nubbin, but I’m not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC’s refusal to permit its sale in commerce not only serves as a violation of Flying Dog’s speech rights, but also is prior restraint.

The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It’s not clear exactly what the state’s regulators object to—though the naked, humanoid figure on the beer’s label does sport a small appendage between its legs. Caruso says he suspects that “tail-like thing” is what triggered the ban.

“The regulation is, on its face, in constitutional ‘bad taste,’ as it is in clear violation of the First Amendment,” attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.

It’s hard to imagine what the counterargument in court will be, honestly. The puritanical viewpoint of North Carolina’s ABC ought have no bearing on whether or not another entity’s speech rights should be infringed. Given the approval for the label in literally every other state and the federal government, it’s difficult to see how the state could even mount a serious case that there is anything offensive here.

Thine own eyes should have you reaching the same conclusion. Even if we assume that the depiction includes a small, cartoon penis, it’s certainly not pornographic in nature. Nor is it detailed enough to warrant concern amongst anyone at all. It’s just a tiny blip on the artwork of a beer label.

And, yet, it appears this is a regular thing in North Carolina.

This is not the first time that North Carolina’s beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board’s sensibilities. Among the “inappropriate” products banned from the state are beers with names like “Daddy Needs His Juice,” and “Beergasm.”

Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its “Polygamy Porter” could not be sold in the state because “polygamy is illegal.” But the board also banned a beer named “Kissing Cousins” despite the fact that it is literally legal to marry your first cousin in North Carolina.

This is all very, very funny, but it’s also a very real problem for Flying Dog. In its suit (embed below), Flying Dog states that it is currently taking orders on the seasonal beer in preparation for the winter months and it cannot currently sell in North Carolina due to all of this. Given that it also states that bottled beer is 90% of the company’s business, even a single brew being disallowed in a single state means we’re talking about very real money.

This lawsuit should be a fairly easy winner. And, frankly, it appears as though it’s well past time that North Carolina get a lesson in free speech when it comes to beer labels.

Filed Under: 1st amendment, alcohol beverage control board, beer, free speech, freezin season, labels, north carolina
Companies: flying dog

Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent “customer confusion” is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] “_Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans_” law.

The law, written at the behest of meat and dairy lobbyists, claims customers are “confused” by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase “cauliflower rice.” Why? Because Arkansas is home to the nation’s largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don’t contain meat.

That law is now on death’s door, having been savaged by a federal judge calling bullshit on the state’s willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there’s no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky’s use of words like “sausage,” “kielbasa,” “burger,” and “ham” confuse consumers despite Tofurky also using words like “white quinoa,” “all vegan,” “plant-based,” and a big “V” to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[…]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state’s attempt to carve out exceptions to the First Amendment on behalf of favored industries.

“Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I’m writing it that way because that’s the only way this is going to turn out. The state doesn’t have a compelling argument up its sleeve that’s going to reverse what’s seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they’re going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don’t care who’s donating to whose re-election campaign.

Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods

Major Labels Split On Support For Article 13; As Music Publishers Whine That They Can't Make Money From Parodies

from the say-that-again dept

Billboard Magazine reliably publishes the views of folks inside the music industry, so a recent column exploring various views regarding Article 13 in the EU Copyright Directive is enlightening. As we’ve discussed, the record labels released a letter saying that they no longer supported Article 13 because it “no longer meets the objectives” they originally wanted — which was basically “Google cough up all the money.”

However, Billboard notes that there’s significant disagreement among the three major labels concerning their views on Article 13:

Of the three major labels, industry sources say Universal is the most opposed to the final version; Warner largely favors it, though executives think the text contains flaws; and Sony Music is between the two.

It still feels like the “opposition” from legacy copyright companies is mostly for show. When discussing Article 13, they all seems to freak out any time anyone points out reasons to drop it — so it feels like the “oh, we oppose it” has mostly been an attempt to see if they can go for broke and make the law even worse. However, if Universal Music really opposes Article 13, it should speak up.

The even odder bit in the Billboard piece is watching some execs whine that in trying to respond to (accurate) claims about how Article 13 will stifle memes, it will mean they might not be able to get money from people making parodies of their works:

At present, in markets where parody exceptions do not exist, rights holders are able to monetize music parody videos. If passed, Article 13 potentially shuts down that source of revenue.

“I don?t think you?ll find many rights holders who will come out and say they like [Article] 13.5. In territories where they don?t currently have these exceptions, you are potentially reducing revenues for a particular use of content,” says one exec.

Cry me a river. Oh, you can’t make money if someone parodies your song. What a shame.

Of course, what’s odd, is that later in the same damn article, they quote someone saying that Article 13.5 doesn’t actually let this happen, even though that’s the claim earlier in the article:

“Is what we?re giving away something we can live with? The general reaction among rights holders, labels and publishers is yes,” agrees John Phelan, director general of international music publishing trade association ICMP, which had previously joined IFPI and IMPALA in opposing an earlier, weaker version of the directive. He says the final text fixed many of those issues. A key revision was the removal of language that suggested platforms would not require licences or be liable for user-generated content that fell under the categories of caricature, parody or pastiche.

“It was critical that was changed,” says Phelan. “If that provision was included, we couldn?t have supported Article 13, nor the directive.”

So, uh, wait. Under Article 13.5, are memes and parodies allowed for free… or not? If you look at the actual text, it shows how this game is being played:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

> a) quotation, criticism, review, > b) use for the purpose of caricature, parody or pastiche.

Let’s be clear: there are all sorts of problems with this. First off, it only applies in states that already protect parody and such, so parodies and memes and the like will be blocked in countries that don’t have those exemptions already under the law. That’s a pretty big deal.

Second, this paragraph is nonsense. The law requires that platforms don’t allow any copyright-covered material be uploaded (which is why everyone will need to use filters). How the hell does a filter determine if it’s for quotation, criticism, or review, or a caricature, parody or pastiche? The draft bill is entirely silent. All it says is “don’t let that stuff be blocked.” It’s the ultimate in “nerd harder.” Basically block everything, except the stuff that looks identical to the other stuff, but if you get anything wrong we’ll fine you out of business. Anyone who understands the first thing about platform liability recognizes that the only way to stay on the right side of this law is to block things — even if they fall under these exceptions.

This clause serves literally no purpose other than for those who support the law to point to in an attempt to blunt criticism of the impact of Article 13. Yet none of them can explain how this part of the law would work in practice, beyond some “nerd harder” mumbling about how the tech companies will have to “figure it out.”

Filed Under: article 13, copyright, eu, eu copyright directive, labels, parodies, upload filters

Patent Loving East Texas Judge Clips Wings Of Largest Patent Troll

from the go-away-now dept

Earlier this year, we noted that patent trolls had struck back, filing a ton of new cases this year. The leading patent troll was a firm called eDekka:

Like many patent trolls, not much is known about eDekka, but it’s represented by Austin Hansley, who just happens to represent all three of the top patent troll lawsuit filers in that graphic above: eDekka, Data Carriers and Wetro Lan (you may recall Wetro Lan, for using an expired bogus patent on a basic firewall to troll lots of companies — and also for its name (say it out loud)). eDekka, though, topped the list with a ton of lawsuits over US Patent 6,266,674, for “random access information retrieval utilizing user-defined labels.”

However, in a surprise move, Judge Rodney Gilstrap, in the Eastern District of Texas, has just tossed out 168 lawsuits filed by eDekka, after noting that the ‘674 patent is not valid under Section 101 of the Patent Act. As recent Supreme Court rulings have made clear, you can’t just take a standard thing that people have done for ages, and “do it on a computer” to get a patent. And that’s the key problem that Judge Gilstrap notes in his ruling:

As summarized above, the claimed idea represents routine tasks that could be performed by a human. While the generic requirement of a ?data structure? is included, Claim 1 essentially describes the common process of receiving, labeling, and storing information, while Claim 3 encompasses retrieving such information.

And thus, the patent covers nothing more than an “abstract idea,” which are not patentable under Section 101.

But… that’s not all. In this one single order, Judge Gilstrap says that everyone else who has been sued under this patent shall be considered prevailing parties in their lawsuits and then issued a separate order allowing all of the defendants sued by eDekka to jointly file a brief asking for attorneys’ fees:

The Court ORDERS Defendants to file a consolidated brief of not to exceed fifteen (15) pages in support of any and all claims for reasonable attorney fees…

As Joe Mullin notes in his story on this (linked above), this is especially surprising from Judge Gilstrap:

Just the invite is a sign of changing times: in his four years on the bench, Gilstrap has never granted attorneys’ fees to a defendant.

Indeed, as we’ve pointed out just recently, Judge Gilstrap had become something of a patent troll favorite down in East Texas. Perhaps that’s changing…

Filed Under: abstract ideas, austin hansley, east texas, labels, patentable subject matter, patents, rodney gilstrap
Companies: data carriers, edekka, wetro lan

Sony To Court: Of Course We're Allowed To Contractually Screw Over Our Artists

from the that's-how-this-works dept

For quite some time now, we’ve been pointing out that the hatred directed at Spotify and other music streaming services in some circles is misplaced. Spotify is paying out a ton of money to the copyright holders (approximately 70% of its revenue). The problem is that much of that money is staying with the labels rather than being passed on to the artists. Earlier this year, in fact, we wrote about a detailed report by Ernst & Young, in cooperation with a European music label trade group, that revealed just how lopsided some of these deals end up being:

That’s the breakdown of how subscription fees are distributed. The vast majority goes to the labels and only a small portion goes to artists and songwriters directly. Now, some of that label money may make it to artists through other means — eventual royalty payments should an artist ever recoup, but we all know how rare that is.

And that brings us to an interesting lawsuit that was actually first filed last year from a bunch of artists associated with American Idol, filed by “19,” a management company connected to the show. Originally, the lawsuit had been a typical one concerning the question of whether online streaming counts as a license or a sale for the purposes of the contracts (music contracts pay much higher rates to artists for licensing rather than “sales” and there have been a bunch of lawsuits around that). However, once the Sony-Spotify 2010 contract was leaked a couple of months back, the lawsuit was amended to specifically argue that Sony chose to structure its deal with Spotify in a way that purposely kept revenue from artists.

Sony has filed its response, which pretty much directly admits that it has every right to negotiate contracts with third parties that screw over artists:

The implied covenant does not require SME to structure its affairs in whatever way yields the greatest royalties for 19

It further cites an earlier ruling in this very case, in which the judge said that Sony Music is under no obligation to maximize revenue for artists if it benefits Sony:

…as Judge Abrams already has held, SME can ?act on its own interests in a way that may incidentally lessen the other party?s anticipated fruits from the contract.?

Furthermore, Sony points to the details in the contract that it signed with 19, which flat out says that Sony is free to receive revenue in other forms that don’t lead to royalties.

19 cannot claim that the parties intended that SME would not receive consideration on a general or label basis (such as in the form of an advertising credit), rather than on a basis tied to the use of a particular sound recording, because 19 expressly agreed that it ?shall not be entitled to a share of income received by or credited to [SME] on a general or label basis.”

The filing from Sony also (rightly) mocks the claim that Sony did some “self-dealing” because it has “control” over Spotify and wanted to benefit Spotify. Noting that it holds approximately 6% of the equity in Spotify, it points out how that is a rather small equity position, and not one that gives it any real control.

Sony Music is absolutely right here. 19 signed a contract that handed over control to Sony Music, and Sony Music appears to be living up to that contract exactly. That the contract itself has a bunch of ways in which Sony can screw over the artists isn’t Sony breaking the contract. It’s the artists and 19 agreeing to a bad contract that they no longer like — something that all too frequently happens in the recording industry. Sony’s actions in its dealings with the artists and with Spotify may be morally questionable on the issue of whether it’s really helping artists, but from a legal and contractual standpoint, it’s difficult to see how 19’s argument has much of a chance in court. It seems likely to get tossed out pretty quickly.

But, the big point remains: in the end it’s not the music services that are to blame for small royalty checks to artists. It’s the bad deals that artists themselves continue to sign with labels.

Filed Under: american idol, artists, contracts, labels, royalties
Companies: 19, sony, sony music, spotify

Billy Bragg Says Don't Blame Spotify; Blame The Record Labels

from the there-we-go dept

There’s been so much misguided hatred towards successful internet music services lately, with the main targets being the most successful: Spotify and Pandora. Could those services be doing better? Yes, absolutely, but so much of the the hatred seems incredibly misplaced. Here are services that are actually paying artists, and that have built platforms that millions upon millions of people love. Many of the complaints about the “low payout” numbers involve people totally misunderstanding the data as well. But there’s also been one elephant in the room which hasn’t received as much attention: Spotify and Pandora pay the record labels, since they hold the copyright. Often, a big part of the problem is that the labels then do everything to avoid paying the artists.

In the past, I’ve disagreed with singer Billy Bragg’s view of internet services, but this time around, he’s right: in many cases, the real problem (yet again) are the labels and not these services. He’s written a detailed Facebook post explaining this position, noting that complaining about Spotify is like “campaigning against the Sony Walkman” when it was first introduced. Going against what music fans want is never a good strategy.

From there, he gets to the real issue: how the labels account for streaming revenue:

The problem with the business model for streaming is that most artists still have contracts from the analog age, when record companies did all the heavy lifting of physical production and distribution, so only paid artists 8%-15% royalties on average.

Those rates, carried over to the digital age, explain why artists are getting such paltry sums from Spotify. If the rates were really so bad, the rights holders – the major record companies – would be complaining. The fact that they’re continuing to sign up means they must be making good money.

Here in Sweden – where I’m doing a show tonight in Malmo – artists have identified that the problem lies with the major record labels rather the streaming service and are taking action to get royalty rates that better reflect the costs involved in digital production and distribution. UK artists would be smart to follow suit.

Of course, there have already been lawsuits about similar issues, related to legacy contracts. You hopefully remember Eminem’s big lawsuit over whether or not digital sales count as licenses or sales, since “licenses” involve a 50% cut, while “sales” are more like 10 to 15%. As the Guardian article notes, there are some labels that do in fact pay a greater percentage on streaming deals, as they should, but many legacy artists are locked into bad contracts. And, of course, there’s always the issue of how well the labels actually handle their accounting, and the way they play games to make sure artists never “recoup,” making it difficult to get any royalties.

The internet services definitely can do more to help artists, but much of the blame often seems misplaced, so it’s great to see someone like Bragg recognizing that.

Filed Under: billy bragg, contracts, labels, luddites, streaming
Companies: pandora, spotify

Swedish Artists Looking To Take Labels To Court Over Spotify Royalties

from the surprisingly,-spotify-is-not-the-villain-here dept

A couple of major labels and Spotify are headed for a legal showdown, but not the way anyone would first assume — and in, of all places, Sweden, where Spotify has enjoyed tremendous success. This isn’t friction between Spotify and major labels coming to a head, but rather artists taking on the labels for devouring a majority of Spotify’s payouts. It goes beyond inequitable royalty distribution, though. Those bringing the lawsuit are also accusing the labels of granting themselves rights they never had and infinitely extending those they do.

Even Thom Yorke can’t pull his old Radiohead classics from Spotify, because the label has those rights. But what if that isn’t quite true? That’s the question now being tested by Per Herrey and the Swedish Musicians’ Union, Svenska Musikerförbundet. The threatened lawsuits, first reported by Sveriges Radio in Stockholm, allege that labels are not only screwing artists, but extending digital streaming rights that they simply don’t have.

Herrey points to possible legal action against Universal Music Group and Warner Music Group, both majors that have received massive advances and equity shares from Spotify while passing little on to artists.

It’s been argued several times on this site that Spotify’s royalty payments, which are portrayed by its opponents as insultingly low, aren’t truly or completely its fault. Someone’s taking a huge portion of those payouts before they hit the artists. Spotify pays out over 70% of its revenue in royalties, a percentage the labels certainly aren’t willing to match. Herrey compares the payout artists receive from their labels — which he estimates is only 6-10% of what’s collected from Spotify — to the normal radio payout, which is split 50/50. A streaming service comprised of mostly non-paying members is going to be hard-pressed to generate sizable artist incomes, but the labels’ ability to grab 90% of the payments makes it impossible.

The additional accusation suggests the labels are working to make this situation even worse. According to Herrey, labels are crafting digital rights ownership out of thin air, especially on older, long-running contracts. Herrey suggests the labels should remove all digital works until these contracts can be renegotiated to deal with the shift in content consumption.

Herrey’s suggestion (and planned lawsuit) can probably be traced back to Eminem’s successful suit against UMG. UMG had been (and likely still continues to do so) playing terminology games in order to maximize its share of royalties from iTunes. UMG called these “sales” in order to claim 85% of the royalties. Eminem’s legal team called them “licenses,” which would have meant Eminem was due 50% of each sale/license. As anyone who’s seen the amount of restrictions applied to your “purchase” of a track from iTunes can attest, you’re not really “purchasing” these songs from iTunes — you’re merely “renting” them. Any right of first sale does not apply to most digital goods. Hence, a “license” rather than a “sale.”

If UMG’s shifty semantics are any indicator of common major label tactics, there’s little doubt the digital rights conjured up have been been severely tilted in the labels’ favor. And if Herrey’s statement about the 6-10% trickle-down from Spotify is correct, then the labels are utilizing some very generous contractual language that somehow views a streamed song as a “sale.” Or, perhaps, it doesn’t address it at all and hopes the affected artists won’t notice.

Filed Under: artists, labels, royalties, sweden
Companies: spotify

Streetlight Manifesto Can't Fulfill Pre-Orders Because Label Refuses To Give Them Their Own Records

from the labels-represent-artists? dept

A year ago, we wrote about how the band Streetlight Manifesto was urging people to boycott its own album, unless it was bought directly from the band, because their label, Victory Records, wasn’t giving them any of the money. Here’s what they said at the time:

We’re writing today to ask you to please boycott all Streetlight related items by not purchasing any of our records or merchandise from Victory’s website, any traditional CD stores, online third party retailers or any digital distribution service (iTunes, Amazon etc). Victory has a long-time reputation of pocketing all of the proceeds from a band’s music and merch, with shady accounting and generally bully-ish behavior. If you want to support Streetlight, our music and our ability to tour and continue to release music, please make all SM related purchases from our own webstore, The RISC Store (www.riscstore.com), or come out to a show and buy a shirt or cd from us directly. In regards to getting the music we make, you can buy directly from us, or, alternately, we’re sure you can find a way to get the tunes onto your computer that may not be, ahem, traditional… Speaking a Bit metaphorically, there is a Torrent of methods to accomplish this, and Google is your always loyal friend…

Believe it or not, things have now gotten even worse. Tim Griffiths writes in to let us know that the band was preparing to launch its latest album, and had even been taking preorders for the album through its own store as mentioned above… but now they claim Victory won’t even give them copies of their own album to sell:

Q: Why do I not have my record yet? I totally want it.

A: Simple – Victory Records has refused to send us any of Streetlight’s new album. Without that – we can not send out pre-orders. Classy move. Read on for more information about your order.

The issue is made more complex by the fact that the band’s lead singer, Toh Kay, also released a companion album to the SM album, with a very similar name. SM’s new album is The Hands That Thieve, while Toh Kay’s is The Hand That Thieves. When Toh Kay put up a video from his album, Victory claimed it infringed on their copyright and had it taken down.

Q: I wanted to hear the Toh Kay record. The music video – before Victory took it down – was beautiful and so was the song. My gosh. What happened?

A: Victory had given Streetlight a choice: either completely kill the Toh Kay record (their absurd reasoning was that its sale would “cannibalize” Streetlight sales, ha!) or hand it over to them so they can release it and exclusively profit from it. Streetlight has experienced and documented years of Victory not paying royalties while continuously profiting from their music, so it was a no-brainer. We had to cancel the record, no matter how much we all loved it and how hard the guys worked on it. That music video, by the way, is also “illegal”. So if you saw it – your eyes are criminals.

The band is offering to give back people’s money, or figure out other ways to satisfy various orders. As in the past, they’ve also suggested that alternative means to finding the album might be fans’ best path:

Q: The Streetlight record leaked online – I already ordered it through you – how should I feel inside about downloading it?

A: We can’t tell you how or where to download it – but if you already paid for it, and it’s being withheld from you by the band’s own record label – well, take that how you will.

And also, this:

Q: This whole situation makes me hate the music industry and I now understand why it – as a business entity – is failing across the board.

A: Yeah. I hear ya. I just downloaded Dredd 3D – wanna watch it with me?

Remember stories like this the next time labels pretend that they represent the best interests of artists.

Filed Under: copyright, dispute, labels, sales, streetlight manifesto, toh kay
Companies: victory records

Macklemore Explains Why Not Being On A Label Helped Him Succeed

from the looking-for-a-come-up dept

Unless you’ve been totally under a pop-culture/music rock for the past few months, you’ve probably heard of Macklemore and his hit song (and video) Thrift Shop. Now at well over 200 million views, the song itself has been at the top of the charts and has sold over 4 million copies. In case you somehow have missed it, or in case you just want to watch it again, here’s the video:

The song itself was released last year, and built up a lot of buzz throughout the fall, but completely exploded at the beginning of this year. While I became aware of the song a while back, I didn’t realize until recently that Macklemore is actually yet another story of a totally independent artist who found success not by signing with a label and having them throw a ton of money into promoting him, but by carving his own independent path (and using YouTube to connect with fans). In many ways, his story reminds me of Alex Day’s.

A few weeks ago, Macklemore sat down with Chris Hardwick on the Nerdist podcast and it’s great. Beyond some interesting discussions about sudden fame (and then doing laundry in the communal laundry room of your apartment building days after appearing on SNL), he does talk a little about being a successful musician without a label. Chris asks him about the no label part and mentions what a great story it is:

Chris: To see you and Ryan Lewis come out of Seattle just making stuff you like making, with no label, and oh you’re at the top of the charts, and all these people are talking about the song… that’s just a great story.

Macklemore: Yeah, I appreciate it. It is a very cool story. It’s what you always hope for in terms of picking the independent path. It’s cool to see that that’s been a focal point. It’s not just “Thrift Shop”; it’s this kind of do-it-yourself attitude behind the music we’ve made — that is also within the midst of this thrift shop song. That these two dudes chose to go independently, to turn down the labels. That the music industry is changing. That it’s evolving. And to be at any sort of place where we’re at the forefront of that, at the moment, is exciting.

Chris: It’s so inspiring to so many young people who maybe — and I think people are more and more used to the fact that they can just make stuff in their bedrooms and it can turn out to be huge. But every time it happens, it’s that much more inspiring to a younger generation of people who go… ‘there’s no excuse any more to not go out and make stuff that you want.’

Macklemore: Absolutely. And that’s what we watched people that came before us that have done it independently, whether it’s Sub Pop, or whether it’s… Mac Miller did it independently. And he had every major label hollering at him with huge seven figure offers and turned it down and still went number one on Billboard. There’s examples of it that came before us, that had us say ‘I think that it can work — I’m not sure that it can work.” But, at the end of the day, what’s most important, and creative control is number one for Ryan and I. It’s a no brainer.

Chris I’m sure you’ve been approached a million times at this point, but you still don’t want the infrastructure of a label?

Macklemore: Yeah, there’s no reason to do it. With the power of the internet and with the real personal relationship that you can have via social media with your fans… I mean everyone talks about MTV and the music industry, and how MTV doesn’t play videos any more — YouTube has obviously completely replaced that. It doesn’t matter that MTV doesn’t play videos. It matters that we have YouTube and that has been our greatest resource in terms of connecting, having our identity, creating a brand, showing the world who we are via YouTube. That has been our label. Labels will go in and spend a million dollar or hundreds of thousands of dollars and try to “brand” these artists and they have no idea how to do it. There’s no authenticity. They’re trying to follow a formula that’s dead. And Ryan and I, out of anything, that we’re good at making music, but we’re great at branding. We’re great at figuring out what our target audience is. How we’re going to reach them and how we’re going to do that in a way that’s real and true to who we are as people. Because that’s where the substance is. That’s where the people actually feel the real connection.

And labels don’t have that.

So you sign up for a label. There’s not some magic button they’re now going to push and it means that people are going to like who you are. Or that they’re identify with your vision or your songs. It actually comes from sitting down, staring at a piece of paper for months or years on end, trying to figure out who you are as a person, and hoping that it comes through in the end. But a label’s not going to do that for you.

Uh huh. Once again, it makes you wonder what people are thinking when they claim that YouTube is putting artists out of work.

The whole episode is worth listening to as Macklemore has a great perspective on all of this, and it’s interesting to hear him discuss the oddity of his sudden increase in fame and how he’s dealing with it, without letting it go to his head. But considering how often we’ve had similar discussions about artists who choose to go independent, I thought some would enjoy that particular snippet especially.

Filed Under: connect with fans, labels, macklemore, music, thrift shop, videos, youtube