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Posts Tagged ‘artist rights’

Rut Ro: @taylorswift13 Leaves the Spotify Cult and Proves the Rule: Spotify Needs Hits, But Hits Don’t Need Spotify

November 5, 2014 2 comments

If you’ve been observing the media campaign opposing Taylor Swift’s decision to withdraw from Cult Spotify while having the biggest first week sales of any record in a very long time, hopefully you haven’t been distracted by the bright and shiny object.  Taylor Swift has proven the rule that we all knew, but was very unpopular to actually act on:

Spotify needs hits, but hits don’t need Spotify.

Check it out–if you can find the Billboard chart that deals with people who actually sell stuff, you’ll see what happened very plainly.

Everyone from the LA Times to The View has been acting like the invasion of Bob Lefsetz.  The breadth and scope of this media concentration leads me to one conclusion:  It is being orchestrated.

And who benefits from such a campaign?  Spotify.

So think about that for a minute.  Imagine if you decided that a certain record store didn’t add value.  Or if you didn’t want your record to appear in a cheesy record store chain because you thought it diminished your brand.  So you didn’t do the deal and you pulled your record from that store or chain.

And then the store hired a PR flack and attacked you in the press.  Would you think we had turned a corner somehow?

I’ve seen these things develop before, and I believe that is exactly what happened.  Can I prove it?  Not yet.  Remember, Spotify is just coming off of a hoped-for charm offensive with meetings in New York, Nashville and Los Angeles that turned into an absolute debacle.  And now this?

Here’s the reality behind Spotify.  They want you to believe that they are an important part of your life.  If you’re a successful artist, they pay you “a lot of money” whatever that is, and they don’t want you to look at the sales they cannibalize.  The answer?  The access model is inevitable and isn’t getting something better than nothing?  Piracy is inevitable, Spotify fights piracy (a dubious proposition) and isn’t getting something better than nothing?

But as I learned from Will Page, who is now at Spotify and was an economist for the PRS, the long tail is a crap business model and digital retailers are in just as much of a hit oriented business as traditional retailers ever were if not more so.  And this is the motivation for Spotify to orchestrate an attack on Taylor Swift.  I’ll offer the same bet I offered to one journalist who didn’t take the bet.  100,000 tracks account for 90% of the revenue on Spotify.  Why is that important?

Because the Hale Boppers at Spotify want the average artist to believe that if they just hold on, things will get better.  And when Taylor Swift says I don’t believe in the Hale Bopp, that seriously undermines both the Spotify religion and the revenue.   And just like other cults we know of, the Spotify Cult attacks nonbelievers who try to leave.

They have done it in the most condescending, sexist and thoroughly Uberfied broness that is so typical of the Silicon Valley start up mentality.  (And in case you bros think you’re special, I recommend Rosabeth Moss Kanter’s Men and Women of the Corporation)  Everywhere from Valleywag to The View, the Spotify Cult is shaming Taylor Swift.

Here’s the reality:

1.  Spotify needs hits, but hits don’t need Spotify.  Obviously.

2.  It’s her damn record and she’ll sell it where she wants.  Nuff said.

3.  She’s not going to get in line.

4.  She doesn’t need a man to talk some sense into her.

5.  Spotify really needs to can the goo goo.  It’s not a good look for you.

6.  Taylor Swift has shown that setting up a record properly does not necessarily relate to having the record available in all digital channels simultaneously.  Rut ro!

7.  It’s not that Taylor Swift wants the freaking money, it’s that Spotify wants the freaking money.  After they free ride on Taylor Swift’s brand and marketing campaign.  So stow that sanctimony.

And heads up Spotify bros:  We’re going to be looking for evidence that you orchestrated this attack on an artist who tried to escape the Cult of Spotify.  And God help you if we find it.

Hold On, I’m Coming: Reactions to the Turtles/Sirius Ruling on Unlicensed Use of Pre-72 Recordings #respectallmusic

September 24, 2014 3 comments

Reactions to the Turtles crushing defeat of Sirius are coming in, here are a few:

Sam Moore (of Sam & Dave) said it best:

Winners never quit and quitters never win.  The recording artists of the pre-72 era are winners and we are not quitting until it’s all made right for every single one of us.

It’s a good day for artists, musicians, songwriters and labels whose life’s work was infringed by Sirius.

Richie Furay (Buffalo Springfield):

“Today we are one step closer to pre-1972 music creators receiving fair pay. The ruling against Sirius XM for playing, but not paying Flo & Eddie (aka The Turtles), is a victory in music licensing history.”

T Bone Burnett:

“It is good that a federal judge made clear that online and mobile music services that have pre- 1972 recordings on their playlists should pay the artists who created these recordings. This decision puts in high relief how arbitrary the idea of 1972 is as a dividing line. If Aretha Franklin is driving listeners to a digital music service, she should share in the revenue that is generated.”

The incomparable Martha Reeves:

“This music is our legacy, and we are grateful that the court in California has acknowledged that artists have the right to be compensated when it is used by digital radio services.”

And Mark Farner of Grand Funk Railroad:

“The Court’s ruling in favor of the Turtles makes it clear that all recordings are worthy of protection.  It’s a matter of simple fairness and I am delighted that legacy artists are being heard by our justice system. Thanks to the Turtles for bringing this issue front and center.  Now more than ever it’s clear that Congress should pass the RESPECT Act, which clearly and fairly makes sure that ALL artists are treated fairly by digital radio.”

Earlier this year, SoundExchange joined with a coalition of artists in launching Project72, a campaign to ensure fair compensation for those who recorded music before 1972 and in support of H.R. 4772, the RESPECT Act. We’ve discussed Project 72 and the RESPECT Act previously on MTP:

Mike Huppe, CEO of SoundExchange:

“This decision in California confirms what we have always known: all sound recordings have value, and all artists deserve to be paid fairly for the use of their music. It does not – and should not — matter whether those recordings are protected by state or federal law.

While we are thrilled with the Turtles’ legal victory, it’s unfortunate that artists and labels were forced to pursue litigation just to receive fair payment for their art. Legacy artists like the Turtles built the foundation of music today – music that helps Sirius XM make billions of dollars a year – and it is outrageous that some digital radio services believe they can use the music of legacy artists for free.

It is clear now more than ever that Congress should quickly move to pass the RESPECT Act.  The bill, introduced by Representatives George Holding (R-NC) and John Conyers (D-MI), would require digital radio services to pay royalties to pre-1972 artists when their music is played. The RESPECT Act would also give Sirius XM, Pandora, and other services an easy and efficient way to get the rights that the federal court in the Turtles case has confirmed they need – and to give the artists the payment they deserve.”

It’s as well to remember an important passage from the Copyright Office’s report on pre-72 sound recordings:

The [Copyright] Office thinks it is unreasonable for the age of a sound recording to dictate whether royalties are paid on public performances by means of digital audio transmissions, so long as copyright subsists in that sound recording.

Looks like the Turtles made that so.

Is Your Band Registered to Vote in 2014?

April 4, 2014 Comments off

Is your band registered to vote?  You ride in the van with these people, you probably know way more about them than you ever wanted to know, but do you know whether they are registered to vote?

You can find out what the rules are in your area on this website “Can I Vote?” (click here)  The site is run by the National Association of Secretaries of State and it has a complete guide to every US state.  Each state includes its voter registration website that will allow you to check in your home state to see if you (or your band) are registered already, and if you’re not, it will tell you how to get registered.  You can also use the National Mail Voter Registration Form available through the U.S. Election Assistance Commission.

We really don’t care which party you favor, that’s not what this is about at all.  We’re not partisan here at MTP.  (And having been in those vans, I don’t advise you to get into your band mates political business, either.)

But what we do care about is just that you vote, and you can’t vote if you don’t register.  And if you’re going to vote for a candidate, you should make sure that (1) you know what that candidate stands for, (2) the candidate knows that you’ll be in their district or state (their “constituent”), and (3) that the candidate knows what you stand for.

How do you let the candidate know what you stand for?  This depends on how much time you have and how active you want to be.  But you can sign up for mailing lists and get active.

At the end of the day though–you need to vote and you need to be registered by your state’s voter registration deadlines in order to vote in this November’s election and any other elections in your area before that.  Those voter registration deadlines are coming up sooner than you think, so get it done now.

The next step after that is to get smart about your state’s absentee voter rules–these are special rules that allow you to vote from home and mail in your ballot if you’ll be on the road on election day.  Your ballot will be counted just like everyone else.  The voting function of state government is usually handled by the state “Secretary of State,” and that office keeps a website with this kind of information.

Try a search for “[YOUR STATE] absentee voter rules” and then look for the search result for “secretary of state” often abbreviated to “SOS”.  If you lived in Texas, a search for “texas absentee voter rules” resulted in this link for the Texas Secretary of State Nandita Berry’s website and this link that tells you how to do it if you live in Texas.  That page also has a link to an online absentee ballot application: http://www.sos.state.tx.us/elections/voter/reqabbm.shtml/ There are definitely rules for how far in advance of an election you can apply for an absentee ballot, so get smart about those deadlines if you want to go this route.  Like everything else with voter registration–don’t wait, do it now.

After you get your band registered, you’ll be able to vote (in person or absentee), so check the election calendar for your state to see what elections are coming up.

Get your nation-wide election calendar here, or see it below.

And don’t forget–elections matter.  If you find yourself represented by someone who opposes artist rights, you’ll feel extra pissed if you didn’t register and or if you registered but didn’t vote.

2014 Election Calendar

The calendar uses a set of codes to describe deadlines and elections and uses your state’s postal code abbreviation to identify the state where the entry applies.  We’ve reproduced the calendars for April, May and June, but the full election calendar has every month this year

2014 Election Calendar Codes

2014 Election Calendar.revised_Page_042014 Election Calendar.revised_Page_05

2014 Election Calendar.revised_Page_06

The MTP Interview: David Lowery on artist rights

March 23, 2014 1 comment

A blast from the past:  My extended interview with David Lowery about the formation of his Trichordist blog, the “Letter to Emily”, and more.

Theme music by Guy Forsyth, “Where’d You Get the Music?”

Terms of use available here.

Multichannel Networks Begin to Come in from the Cold: An Interview with David Kokakis of Universal Music Publishing on Universal’s deals with Maker and Fullscreen

March 12, 2013 Comments off

Universal Music Publishing recently signed agreements with Maker Studios and Fullscreen, two of the YouTube “multichannel networks”.  MTP readers will recall our being critical of the MCNs for being unlicensed and of YouTube for permitting these unlicensed networks on the YouTube system.

Fortunately for all concerned–starting with songwriters–Universal has taken a leading role in getting these services licensed and in making the Universal catalog available to Maker and Fullscreen producers for cover recordings.  That announcement was immediately followed by the announcement that Crunch Digital would be handling the reporting on behalf of Fullscreen.

While he acknowledged the progress of the MCNs from illegitimate to legitimate licensed services, David Israelite at the National Music Publishers Association reminded the MCNs that having one deal with one publisher doesn’t solve their problem:

But let me be clear – all MCNs must be licensed for the use of all songs. This agreement between two MCNs and one music publishing company does not solve the entirety of the problem.  As the popularity of digital entertainment has grown, MCNs have significantly profited, often without compensating the songwriters whose work is being used.

But today, we will be happy for Universal’s songwriters.  I interviewed David Kokakis, Senior Vice President, Legal Affairs/Business Development, Universal Music Publishing Group, about the two MCN deals for Universal’s songwriters.

MTP:  Universal Music Publishing recently announced a license agreement with the YouTube “multichannel networks” Maker and Fullscreen that allows songs by your writers to be used on these two MCNs.  What are the basic rights you are licensing?

David Kokakis: The deals are relatively straightforward.  We licensed reproduction and synchronization rights directly to Maker and Fullscreen (for the time being, we prefer that performance rights be secured through the applicable performance rights societies).  The licenses give artists affiliated with these MCNs access to our entire catalog, allowing them to create and post their own cover videos of our songs within the Maker and Fullscreen networks on YouTube.

MTP:  It may seem obvious, but people frequently confuse the rights of a music publisher like Universal Music Publishing for songs and the rights of a record company such as your affiliates at Republic for sound recordings.  Can you spin out that difference a little bit?

David Kokakis: It’s a common misconception that securing a license from a record company is all that is needed to legally exploit a recording.  There are two distinct copyrights involved: one for the recording itself and the other for the underlying musical composition embodied in the recording.  As a music publisher, UMPG administers rights in the underlying musical composition, whereas the record company owns or controls rights in the recording of the composition.  Cover videos are in a unique content category because a license from the publisher is typically all that is required (except in instances when the cover recording incorporates elements of the original master recording, such as with karaoke-style covers).

MTP: Universal Music Publishing has deals with YouTube and now also a deal with two MCNs for plays on YouTube.  What’s the difference between licensing songs to YouTube and licensing songs to an MCN?

David Kokakis: I will explain the context in which the deals arose in order to highlight the difference.  Our deal with YouTube covers certain types of user-generated content (UGC) uploaded to the platform.  This UGC, when claimed and monetized by MCNs, fell outside the scope of our YouTube deal (videos created by or in partnership with MCNs were also unlicensed).  This presented a unique problem because content that was previously licensed by us under our YouTube deal was suddenly unauthorized when that same content was curated by an MCN.  We recognized that certain MCNs, such as Maker and Fullscreen, had established themselves as influential players within YouTube’s ecosystem and that they could help promote our catalog and generate higher advertising revenue for our writers.  Consequently, instead of pulling back rights and forcing our content out of the networks controlled by the MCNs, we worked with them to create a new licensing model that protects and fairly compensates our writers, but also gives the MCNs and their artists freedom to create.  We believe that collaborating with the MCNs and their artists will prove to be the best way to maximize growth for all involved.

MTP:  I realize that the financial terms of your deals with the MCNs haven’t been disclosed, but can you describe the money flow from YouTube through to your songwriters?

David Kokakis: Advertisers pay YouTube for spots against videos and watch pages (e.g., pre-rolls, banner ads, overlays, etc.), which are typically serviced through Google’s own ad companies, AdSense and DoubleClick.  YouTube then pays the MCN a percentage of advertising revenue derived from monetized views of ad enabled videos claimed by the MCN.  The MCN in turn pays UMPG a prorata portion of its gross receipts attributable to UMPG’s interest in the compositions embodied in such videos, as well as to all other publishers who have an interest in the compositions concerned.  UMPG then distributes royalties to its songwriters pursuant to the terms of the applicable writer agreements.

MTP:  Maker and Fullscreen aren’t the only MCNs out there, are you going to license others?

David Kokakis: Several other MCNs have reached out to explore licensing opportunities and we are actively negotiating with them.  They recognize that building comprehensive music programming within their networks can be lucrative if done properly and with our input.  They appreciate our collaborative approach and our willingness to strike deals that are beneficial to all parties.

UPDATED: Looking to the East for The Review that Counts: Brit Photographers ask for Judicial Ruling on Legality of “Google Review’s” Star Chamber of One

January 15, 2013 Comments off

MTP readers will remember Brad Holland’s excellent article documenting the struggle by artists against the “orphan works” legislation (“Orphan Works and the War on Artists“).  The British have their own version of that legislation pending in the Parliament, the “Enterprise and Regulatory Reform Bill” which has in it the hated Clause 68 among others that would weaken creator rights. The bill is the legislative version of the controversial “Hargreaves Review” also known as the “Google Review” as it is the legislative wet dream of the anti-artist groups.  In a procedural move called a Letter Before Claim, major news organizations have challenged the Google backed Enterprise and Regulatory Reform Bill–which may present a constitutional challenge to the way that the bill converts what should be legislative rulings on the property rights of artists into the decision of a Star Chamber of One.

According to the British Journal of Photography:

A consortium of news agencies that include Associated Press, Getty Images,  Reuters, British Pathé, Press Association and the Federation of Commercial and  Audiovisual Libraries has threatened to launch a Judicial Review into the  government’s plans to change the UK’s copyright laws.

The world’s largest news agencies have delivered a Letter Before Claim to the  UK’s business secretary Vince Cable, in what is described as the first step in  the process of initiating a Judicial Review – a formal legal challenge to  governmental planned legislation.

Andrew Orlowski writes in The Register:

The requested judge-led review hinges on the fact that the draft law implements copyright as a property right. The UK constitution trusts our elected Parliament, not a lone senior minister, to provide protection over citizens’ property – making Parliament the citizens’ guardian against seizure. However, the ERRB clauses allow a government figure to make startling changes to property rights on the hoof.

Supporters of Prof Hargreaves’ copyright review, including Google – which privately lobbied for weakening UK copyright and helped foment the planned overhaul – may now be entitled question the clumsy implementation strategy of the bureaucrats at the UK’s Intellectual Property Office (IPO), which masterminded the changes.

The IPO is an agency in the government’s Department for Business, Innovation and Skills, although critics refer to it as the office of “Intellectual Property Obliteration”. It has long sought to weaken copyright protection: it raced ahead of the Hargreaves timetable by inserting free-standing clauses on orphan works and extended collective licensing (which were not even mentioned in the Hargreaves key bullet points) into the general-purpose ERRB.

These amendments were proposed before the government had announced what it would do about Prof Hargreaves’ findings. Now rather than getting half a loaf, the agency’s top brass may not even end up with a bun.

The IPO believes copyright is a regulatory impediment, rather than a property right, and theory-based academics share its view. But this is a Humpty Dumpty approach to semantics. What matters is what copyright means in law, not what Humpty chooses it to mean, “neither more nor less”.

10 Minutes for Creative Commons: After 10 Years, It Still Seems to Cost A Lot of Money for Google-Backed Creative Commons to Give Things Away for Free

December 16, 2012 1 comment

[Editor Charlie sez: This post from 2012 is worth revisiting.]

Creative Commons Corporation is celebrating its 10 year anniversary with a 10 day celebration–Lessig declares 10 days of bread and circuses, panem et circenses for the Commoners.  So how are they doing?

MTP readers will recall the rather extraordinary flaws in the Creative Commons Corporation “license” from mischaracterizing copyrights (like an “audio” license that fails to distinguish between sound recordings and songs) to just blatant typos.  Although those mistakes eventually got fixed, the bad “deeds” were in place for years so an untold number of works were incorrectly “licensed”.  (See “Creative Commons Corporation: Because It Sure Seems to Cost a Lot of Money to Give Things Away for Free“)

Creative Commons 2008 Schedule B

This is surprising given that Creative Commons Corporation is awash in Google money (see this 2008 Schedule B from the Creative Commons Corporation Form 990 documenting Google’s $1,500,000 contribution.)  In fact, as you can see from the 2008 contributors list (subsequent returns are more carefully filed), foundations associated with Big Tech heavy hitters like Hewlett Packard, Ebay, Mozilla (widely thought to be a front for Google) and a corporate donation directly from Google account for $8.5 million in Creative Commons donations.  I guess the others in the Gang of Four were not invited to the party.

And speaking of party, then of course there are the poker money donations from a Partygaming founder right before a plea bargain to avoid prison time (see “Poker Money and the Ethics Professor“), so it wasn’t just Google.  (According to the Megavideo indictment, both Adsense and Partygaming provided early support for Megavideo’s ad sales…but I digress.)

So Creative Commons Corporation’s rather unsavory benefactors certainly provided CC with the money to hire people who knew what they were doing.

But no, they screwed up again.  There are still deep flaws with Creative Commons Corporation licenses. Here’s a few music business issues based on the most recent “suite” of licenses (or “legal code” whatever that means).  I’ll leave it to the film guys to point out the screw ups that affect their business.

As you’ll see, what Creative Commons licenses boil down to is a fig leaf that offers some protection to the litigious licensee (e.g., Google) if it turns out that the person using the Creative Commons license (the “Licensor”) didn’t have the right to put the work under a CC license in the first place.   And that’s what Google paid for by the look of things.

A word about the Creative Commons Corporation’s board–the chair is a fellow named Joi Ito.  MTP readers will remember him as saying that “Business will overcome its opposition to Creative Commons or perish.”  Obviously sheer genius.  And the Vice Chair is Esther Wojcicki, the mother in law of Google co-founder Sergey Brin.  Not in her CC bio, but why would you feel the need to disclose that your son in law’s company gave $1,500,000 to the nonprofit whose board you are on?  Details, details.  Or maybe you just assume that everyone knows?  “Everyone” (who “matters”) probably does know…in Palo Alto.

And since we last looked, Creative Commons Corporation has added someone from the music business.  Yes, “the music business development manager at [Google’s] YouTube”.  And that’s going so well.

I challenged myself to spend 10 minutes looking at the Creative Commons basic form license–a minute for each year they’ve been operating.  Here’s what I came up with.

1. Cover Recordings: Creative Commons still has not addressed the fundamental “cover recording” problem.

This is how they define the “Work” that is being licensed:

“Work” means the literary and/or artistic work offered under the terms of this License including without limitation any production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression including digital form, such as a book, pamphlet and other writing; a lecture, address, sermon or other work of the same nature; a dramatic or dramatico-musical work; a choreographic work or entertainment in dumb show; a musical composition with or without words [aka lyric]; a cinematographic work to which are assimilated works expressed by a process analogous to cinematography; a work of drawing, painting, architecture, sculpture, engraving or lithography; a photographic work to which are assimilated works expressed by a process analogous to photography; a work of applied art; an illustration, map, plan, sketch or three-dimensional work relative to geography, topography, architecture or science; a performance; a broadcast; a phonogram; a compilation of data to the extent it is protected as a copyrightable work; or a work performed by a variety or circus performer to the extent it is not otherwise considered a literary or artistic work.”

“Phonogram” is defined in the WIPO phonogram treaty as “any exclusively aural fixation of sounds of a performance or of other sounds.” I’m assuming they are using the word “phonogram” based on WIPO as you would normally use “phonorecord” in the US. CC also references the WIPO treaty phonograms treaty in their license.

So the CC license could be twisted to include a song and a recording of a song. Arguably, a recording of the song that is the subject of the license. However, it does not include a recording of someone else’s song (and apparently can’t unless the songwriter is part of the CC license)–but you’d never know that from the license itself unless you really parsed through the language and the FAQ:

Be specific about what you are licensing

You need to be specific about exactly what you are CC-licensing when you apply the Creative Commons license to your work. We give you the option of identifying the format of the work in the metadata (text, audio, video, image, interactive) and you should use this. This enables more precise machine-readable language.

However, you should also think about exactly which elements of your work you are licensing. [“your work”?  Don’t they mean “the work”] For example, in the case of a website, are you licensing just the text and images? Or also the stylesheets and the code that run the site? Similarly, if you make CC-licensed music available for download on your site, does the Creative Commons license apply to both the musical composition and the sound recording as well as any artwork and graphics at your site? And remember, as discussed under “2. Make sure you have the rights” above, you need to make sure you have the rights to each element that you license under a Creative Commons license.

Take a moment to think about exactly what you are intending to license and then frame your metadata and legal notice accordingly, eg. “All images at this site are licensed under a Creative Commons [insert description] 2.5 license.”

So this would be the ideal place to include an obvious warning addressing cover recordings, one of the most common situations found online–in fact encouraged by some services.

A warning both to the licensor and to the licensee.  So I have the same criticism I had before–rather than having a kloogy single license to cover sound recordings and songs, why not have one for each if the recording is of a song that can’t be licensed under a CC license?  If your goal was to reduce confusion in the system.

The smartest guys in the room–just ask them–with millions behind them can’t manage to “cover” basic points that a first year music lawyer would catch.

2. Moral Rights:  Moral rights are typically a right to protect creators that exists outside the U.S.  Understand that “moral rights” are more like “human rights” than “economic rights” or “intellectual property rights.”  (And certainly are different than “robot rights”, a topic that has held some recent attraction for Lessig & Acolytes.)

But also understand that Americans can approximate similar protections through palming off, reverse palming off, misappropriation of the right of publicity, defamation and other types of claims.  See also Visual Artists Rights Act of 1990 in the U.S.

These are exactly the rights that are at issue in sample licenses (or as the Lessig-ites would say, remixing).  For example, if an artist opposes human trafficking, but finds their recording sampled into a new recording by someone extolling the benefits of pimping, that would force the artist to be associated with an activity they not only reject, but may spend a good deal of time rejecting publicly.  This implicate the artist’s moral rights.

These are personal rights to artists and are usually not waivable in jurisdictions that recognize them as distinct from economic rights (especially France).  It is pretty typical to see a waiver of moral rights in record company or movie studio deals–the bad “old boss” contracts, right?

Creative Commons tries to put a gloss on this issue.  The license seems to recognize moral rights (the licensee “must not distort, mutilate, modify or take other derogatory action…that would be prejudicial to the Original Author’s honor or reputation”).  But the license–just like the record companies and studios–requires a waiver (and, of course, this could not apply to cover recordings except in the unlikely case that the cover songwriter is a party to the waiver):

“Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.”

This seems to say that the licensee (“You”) cannot damage honor or reputation as a condition of the license (probably a condition subsequent, i.e., that exists after the license comes into effect).  But then the license goes on to say that the Licensor—not the Original Author—waives “this Section” whatever that means (presumably the right to enforce a breach of the moral rights protection by the licensee, although it’s hard to tell).  The right to protection of “honor and reputation” is with the author, not the “Licensor” unless the Licensor is the Original Author.  If the Licensor is not the Original Author (and therefore probably does not have the ability to even try to waive what may be an unwaiveable right), it’s hard to know what this language even means.

And this is particularly odd because of this language in the “License Deed” (kind of a summary of terms):

Other Rights—        In no way are any of the following rights affected by the license:

Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;

The author’s moral rights;

Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights.

But remember…”Licensor agrees that…the Licensor will waive or not assert, as appropriate, this Section [that describes moral rights], to the fullest extent permitted by the applicable national law”

So this doesn’t make much sense.  Unless it is a clever ambiguity because the deed talks of “the author‘s moral rights”  (remember the license carefully says that it is the Licensor who is waiving and the Licensor may or may not be the author), and “moral rights” meaning all moral rights which may not be waived not just the “honor and reputation” piece.  The deed also talks of the rights of publicity of “other persons”, i.e., other than the Licensor.  Of course the rights of “other persons” would be unlikely to be implicated as they are–other persons, i.e., not signers of the license.

Which leads back to the central point that the CC license is very ambiguous, to be kind.  So why bother with it at all.  Unless it’s more about the organization than the service.

3. Joint Authors: CC defines the “Licensor” (a different term and potentially different person than the “Original Authors”) to means the individual, individuals, entity or entities that offer(s) the Work under the terms of this License.

This is a nice distinction because the Licensor may not be the “Original Author”. If there is a co-writer, for example, who is an Original Author but not a Licensor, then the person taking the CC license has no way of knowing whether the co-writer has agreed to the license.  As a practical matter, the non-granting co-writer has no way of knowing what their co-writer did, either, because Registry Boy Lessig’s Creative Commons keeps no registry for their works.

4. Buyer Beware: The entire Creative Commons system is based on the premise that “buyer beware.”  Which doesn’t pass the laugh test.

Creative Commons takes no responsibility for their license.  They take no responsibility for whether the person “signing” the license has the rights, and makes no effort to fix any mistakes (including, and maybe especially their own).  They warn everyone in sight that the license may be meaningless–and do so correctly.

For example, Here’s the FAQ that seems most applicable to the joint author problem. Note that this doesn’t deal with the effect on a licensee of taking what turns out to be a faulty CC license. Is the idea is that the licensee (e.g., Google) can say they relied on the faulty license?

What happens if someone applies a Creative Commons license to my work without my knowledge or authorization?

CC alerts prospective licensors they need to have all necessary rights before applying a CC license to a work. If that is not the case and someone has marked your work with a CC license without your authorization, you should contact that person and tell them to remove the license from your work. You may also wish to contact a lawyer. Creative Commons is not a law firm and cannot represent you or give you legal advice, but there are lawyers who have identified themselves as interested in representing people in CC-related matters.

I bet.

Which leaves the question–why bother with any of it?  And 10 years in, it still sure seems to cost a lot of Google’s money to give things away for free.

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