20 More Questions for Artists: License fee splits for film and TV

December 20, 2014 Leave a comment

Originally posted on MUSIC • TECHNOLOGY • POLICY:

This post is a follow-on to “20 Questions for New Artists” by Chris Castle and Amy Mitchell available here.

Great news, you got a track licensed for a weekly network TV show, what’s called “episodic television.”  So now what?

The network will issue a standard license which is probably reasonably fair to you (although you should always have your legal or business advisor review it and tell you what it says).  Here are a few things that it ought to say.

1.  License not Ownership:  First, it’s a nonexclusive license, meaning that even though you license the recording (and the song, which we will come to), you are free to license the same recording to anyone else for the same kind of use (although not the same show), and you are free to continue using the recording and song however you want.

Sometimes there is a…

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Why Does Google Drug Stockholder Settlement Cover Golden Parachutes for Felonious Employees?

December 19, 2014 Leave a comment

Originally posted on MUSIC • TECHNOLOGY • POLICY:

Google recently filed a tentative settlement with its stockholders over the $500,000,000 of the company’s money that Google’s executive team authorized be spent to keep from being indicted by a Rhode Island grand jury.  (I invite you to read the sordid history in the settlement and also the story of the Google sting operation in the Nonprosecution Agreement between Google and the United States,)

The settlement is full of the kind of stuff you’d expect to see in a settlement of this kind:  Google refuses to admit liability, but agrees to spend even more of the stockholder’s money to stop itself before it sins again.  But then out of the blue comes this section:

2.7 Criminal Activity Reporting

Google’s General Counsel shall be responsible for reviewing every situation in which a  Google employee is convicted of a felony under U.S. federal or state criminal statutes in connection with his…

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The Revenge of the Adsense Whistleblower: Google Sued For Canceling Adsense Accounts and Keeping the Money

December 18, 2014 1 comment

Remember the Adsense Whistleblower?  What the whistleblower alleged is that Google is essentially stealing money from Adsense publishers in situations that may be subject to an obligation on Google’s part to refund that money to advertisers.  Because the whistleblower has not published any documents as evidence for the claims, we don’t have much to go on.  So in this way, it’s like almost everything else with the highly, highly secretive Google.

pastebin groups


That’s right–Google is canceling accounts supposedly for violating Google’s Adsense policies, but did not give any warning to the publisher or an opportunity to correct the behavior.

But Google sold advertising and kept the money after canceling the account.  This is similar to what Google was reported to have done by the BBC when it discovered that its vast advertising network was being used to sell counterfeit Olympics tickets for the London Olympics.  Google cancelled the account but kept the money.  And it is also a topic that is the subject of Mississippi Attorney General Jim Hood’s latest subpoena to Google for investigating Google’s business practices.  (Google shills are trying to pass off Hood’s subpoena as focused on piracy, but if you actually take the time to read the subpoena you will find that it hardly mentions IP theft at all and mostly focuses on how Google enforces its own practices and potential violations of the $500,000,000 plea bargain that Google entered into with the US Department of Justice for violating the Controlled Substances Act.)

The thing to remember about Google’s taking accrued but unpaid Adsense revenue under bogus or false pretenses is that it smacks of fraud.  And if Google is not refunding Adsense revenues to advertisers, then not only is it likely defrauding its ad publishers (the sites where the ads appear) it is also defrauding the advertisers.  This is not behavior that is protected by the DMCA, the Communications Decency Act, or any other safe harbor.  It is quite simply profiting by deceit and that kind of thing is often covered by state law.

When the Pastebin whistleblower first posted these accusations, Google immediately poo-poo’d the post (including the one about a sex harassment claim against well-known political contributor Matt Cutts who took a leave of absence from Google shortly after the Pastebin post.)  But now we are starting to see a conga line of lawsuits against Google for largely the same thing.

Business Insider reports that:

One company, Pubshare, has sued Google for nearly $1 million in revenue it allegedly earned from ads, which Google declined to pass on to the company….Google asked the court to dismiss the case, but a judge ruled to let it proceed. The company has recently indicated that it is bowing to pressure from publishers: In a blog post, it said it would be “making some changes” when considering whether publishers should be banned.

“Allowing an AdSense publisher to accumulate hundreds of thousands of dollars in earnings without any warnings of improper practices, and then abruptly refusing to pay out any of those earnings by means of auto-generated form e-mails is the very definition of bad faith,” says Randy Gaw, a lawyer at the San Francisco firm Gaw Poe, which represents Ogtanyan.

Google declined to comment on this story when contacted by Business Insider….Four different companies have told Business Insider they are talking to their lawyers about suing the search giant for fraud. Three have actually sued, according to copies of the litigation obtained by Business Insider.

In total, Business Insider has heard from seven companies that say they lost tens or hundreds of thousands of dollars when they were suddenly banned from AdSense. All the companies say they were following Google’s strict rules about how to place ads on their site. Some of them say they were encouraged or given approval for their ad plans by Google’s sales staff. The companies showed us emails, images from their AdSense account dashboards, and online chat transcripts with Google staff to demonstrate their problems.

You have to feel for these Adsense publishers.  Remember, Google has acknowledged terminating thousands of Adsense publisher accounts.  Former staffer for Vice President Joe Biden turned Google lobbyist Catherine Oyama proudly told Congress how many accounts Google had terminated that is consistent with the whistleblower post and the Business Insider story:

Oyama Testimony
Google also told the world about another bunch of accounts it terminated in a report that may have been written by Fred “shred ‘em if you got ‘em” Von Lohman, former piracy guru for Google Shill Lister Electronic Frontier Foundation and current Google piracy guru:

Google Piracy Ad Cancellation

(A little free advice to General Hood–Oyama and Von Lohman should be happy to testify in response to the subpoena, which is probably why the Google PR machine is kicking into panic mode.)

So keep an eye on these lawsuits by publishers.  But the people who should really be looking into these cases are the advertisers, particularly the small advertisers.  The big ad agencies like Publius and WPP can take care of themselves on this kind of thing, and you have to believe that Google takes very good care of them.  But where do the mom and pop advertisers who are duped by Google turn?  What about the profit from counterfeit products like the London Olympics tickets?  Who takes care of those situations?

Given that the US DOJ reportedly apologized to Google for the US Attorney for Rhode Island’s statements regarding Larry Page’s involvement with promoting the sale of illegal drugs, do you think that that mom and pop advertisers or the general public can rely on the federal government to protect them from Google?  Or the consumer protection powers of their state attorneys general who are directly accountable to the voters?

The Life She Wants You to Have

December 16, 2014 3 comments

…there was lunch in the larger, first floor cafeteria where, in the corner, on a small stage there was a man, playing a guitar, who looked like an aging singer-songwriter Mae’s parents listened to.

“Is that….?”

“It is,” Annie said, not breaking her stride.  “There’s someone every day.   Musicians, comedians, writers….We book them a year ahead.  We have to fight them off.”

The singer-songwriter was signing passionately…but the vast majority of the cafeteria was paying little to no attention.

“I can’t imagine the budget for that, ” Mae said.

“Oh god, we don’t pay them.”

The Circle, by Dave Eggers

Two different Bay Area artists have posted on Digital Music News about being asked to perform on Oprah Winfrey’s “The Life You Want” tour.  Both were asked to perform for free, one chose to do it for the exposure, the other decided not to kiss the ring.  The one (Revolva) who wanted to be paid did not get hired.  The one who did it for the exposure did get hired.

The question came up with artists who were asked to play for free on the Amanda Palmer Kickstarter tour (about which criticism Ms. Palmer evidently is still stinging) and it’s actually a very old question.

I would suggest to you that there’s a difference between telling an artist that the tour can afford $500 plus some swag and a bunch of comps, and telling the artist that in exchange for being allowed to bask in the glow of the genius of the headliner, they have to play for free plus a couple of house tickets.

Particularly when the headliner is one of the richest performers in the world and can clearly afford the $500 route.

I think that the question that needs to be examined here is not what decision the artists made.  Artists presented with this “opportunity” will either take the deal or they won’t.  The question is why is the deal being offered in the first place, particularly when employers are being sued every day for unpaid internships.

As a restauranteur told me once, if they can’t afford to tip they should cook dinner for themselves.

The tour is called “The Life You Want”.  That title has so many satirical possibilities that I think I will just let it sit there.

News from the Goolag: Lessig says he likes everything about the Pirate Party except the name

December 14, 2014 Leave a comment

Chris Castle:

Here’s a blast from the past, a “Gruber moment” for the Poker Prof.

Originally posted on MUSIC • TECHNOLOGY • POLICY:

Lessig counsels that the U.S. Congress already thinks that the fight he has created is over “hard working copyright owners” against people who want to steal.

Yes, that’s the fight he created. He got that exactly right. Which should come as no surprise–he’s been promoting the Pirate Party since 2006. Now his problem is that they are actually becoming visible and he has to figure out how to co-opt that political success for his own purposes without getting fired by Fox News contributor Joe Trippi.

What he doesn’t like is accepting the “Pirate” label. Now why would that be? Why would he care, being a lobbying academic and all? Could it be because it would make it difficult for him to keep shilling for Google & Co.? Not that he wouldn’t keep shilling, it’s just the short con is harder to run when you are walking around with…

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Google’s Guide to RICO

December 10, 2014 Leave a comment

Originally posted on MUSIC • TECHNOLOGY • POLICY:

PRS For Music recently released a report entitled the “Six Business Models of Copyright Infringement.”  This report was co-sponsored by Google.  The company’s European Policy Blog had a suitably Googlely statement (if you know what I mean) announcing the release of the report.  (http://googlepolicyeurope.blogspot.com/2012/07/follow-money-to-fight-online-piracy.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+EuropeanPublicPolicyBlog+%28European+Public+Policy+Blog%29) Well, it wasn’t entirely Googley because it didn’t contain any of the usual “Joe Camel” semiotics.

No references to children’s foods, candy, or toys, and it didn’t say “goo goo ga ga”.  Maybe they take the report seriously.

The blog said in part:

How best to combat this danger [of massive copyright infringement]? Instead of imposing blocks or filters that might damage fundamental freedoms, governments should construct coalitions with reputable advertising networks, payment processors and rightsholders. Together, these coalitions can crack down and squeeze the financing behind online infringement.

Good point.  Yes, indeed, Google has made an excellent point.  And you know, here in the United States…

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Are you having trouble with Topspin?

December 10, 2014 1 comment

It seemed like a good idea at the time, but based on a couple of personal experiences I would have to say that as a fulfillment house of physical product, Topspin turned out to be unusable.  Like so many Silicon Valley companies, as soon as you cross over into the physical world, these guys just don’t get it and worse yet, don’t know how to manage it, account for it, deal with inventory, or communicate with their ultimate customers–the artists.

So nothing unusual about that, but the problem is that Topspin held itself out as being capable of dealing with all those things.  There were three problems we encountered with the physical side (I have it on good authority that the digital side was promising and well designed–from which I would conclude that the company should have stuck to their knitting.)  This was before the sale to Beats and before the sale of Beats to Apple.

1.  Taking orders from fans that were not fulfilled.  In one situation, we were forced to use Topspin by a major label which seemed weird.  (I won’t tell you which major label, but let’s just say in retrospect, I’m not surprised.)  Topspin’s order intake was very clunky (and I’m skipping over a tale of woe there), but the worst part about it was that they took the fan’s money and only sent the product after the manager jumped all over them a couple times.  If they had dedicated customer service folk, we couldn’t tell (and that is soooo diplomatic).

2.  Product Return was Difficult:  Getting any inventory of physical goods sent to Topspin was very difficult and time consuming.

3.  Accounting Was Funky and Clunky:  It was very difficult to get a straight count from Topspin, plus the company charged administration fees that were never agreed to.  Nightmare.

Recall that Topspin is now somehow part of Beats.  I am hearing all of the above from independent artists who are having a very difficult time getting anyone from Topspin on the phone.  Of course, I’m reminded of Facebook’s outgoing message:  We’re an Internet company so we communicate by email.  There is no voicemail.

Here’s the problem:  All of the indie artists I speak to seem to believe that their days with Topspin are over and they (A) want to be reimbursed for the sales they fulfilled out of embarrassment in situations that Topspin took the money for but never sent product; (B) they want an accounting from Topspin for any sales they did make (which the artists have never received); and (C) they want their product back, usually CDs, or they want to be paid for the cost of producing the product.

Topspin is in the typical position for an Internet company–none of these artists are owed enough money to make it worth suing, but all together the artists could be owed quite a bit of money.

The other problem with Topspin is that when you take somebody’s property and promise to hold it and follow their instructions, you assume what is arguably a fiduciary duty to treat that somebody in a special way.  That is called being an agent for your principal.  (This is kind of a bailment for those writ pleaders reading along.)

And here’s a hot tip for Topspin:  If you take somebody’s property and don’t give it back when they ask for it we call that theft.   And as we all know, theft is a crime.

So there’s people who deal with crimes like this where someone–yes, even a venture backed dot com now owned by Apple–steals a little bit from a lot of people.  These people are called district attorneys.

And you know what?  Funny thing is I know some of those people.  How about that for a coincidence, eh?

Here’s what I ask from our readers.  If you have had these kinds of problems from Topspin, I’d like to hear from you.  Leave a comment and let me know or DM on Twitter @musictechpolicy.

Thanks, let’s crowdsource this mofo.


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