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Comment by DrJokepu | Hacker News Reader

It’s kind of a gray area, the whole performing/mechanical rights system was obviously invented before streaming. Radio stations pay for performing rights, so the question arises whether streaming is more like radio broadcast or manufacturing and distributing physical copies (e.g. CDs)? Without further legislation, ultimately only the courts can decide that.

My guess is that ultimately streaming rights will end up as their own category, separate from performance, mechanical or sync rights.

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On a logical level it should be treated the same as broadcast radio, however it gets hazy because you can store playlists and play tracks on demand so its really not clear cut. With radio you can hear the song if it happens to be playing but there is no on demand, no playlists.

There is replay; you can search many radio stations playlist for a specific title and play it.

What about Youtube? It seems most / all music is on YT, what licence do they use? Streaming services seem a lot like YT.

I think only music owners are allowed to post to YT, so they don't need a license like Spotify would.

But you see, the thing is with commercial music is that the music owner is not a single entity. There is a composer, if there are lyrics there is a lyricist, if it was translated then there is a translator, if it’s a cover or remix there is an arranger, there is a publisher that published the music, there might be a sub-publisher, then there is a record label… One of the main reasons behind the existence of this complex system of rights is the complex ownership structure of the copyright and related rights.

Isn't this the reason vevo exists? youtube pays a single royalty based on playback and leaves it to the uploader to split it up between all the interested parties.

Yes, that’s a common arrangement.

> But you see, the thing is with commercial music is that the music owner is not a single entity.

Great example, but you don't always have to split everything up 100 different ways, either.

There is commercial music in almost every genre owned entirely by the songwriter/composer/artist.

Nope! You can totally pay for royalties and the entire right to perform on YouTube. It’s usually automatic.

You are allowed to post covers on YouTube, which requires a performance license payment.

Covers are a compulsory license, so there is no way to disallow a cover from being posted if the license fees are paid.

YouTube is different though because as soon as you have visuals accompanying the audio you are in sync rights territory which is the kind of royalty that e.g. television broadcasters pay. Same goes for Twitch.

> YouTube is different though because as soon as you have visuals accompanying the audio you are in sync rights territory which is the kind of royalty that e.g. television broadcasters pay. Same goes for Twitch.

There are endless uploads to YouTube with a static title slide accompanied by a popular song. I see them constantly when searching for genuine music videos from my adolescence. Infringement seems pretty clear in these particular cases.

This is obviously distinct from Spotify’s streaming business, of course. I’m only attempting to address this specific subtopic.

Google provides a mechanism for copyright owners to claim those videos and either get advertising rights to them or remove them.

YouTube don't need a license because they say they are covered by safe harbors / DMCA, so the record companies have negotiated separate agreements with YouTube. The fact that safe harbors were designed for passive intermediaries like ISPs and not a service like YT that promotes and makes money and gets value from all the music people upload (including record companies) is glossed over by YouTube.

I think you are right, there are two types of scenarios: streaming and offline play.

I would think Spotify would need both types of licenses, or disable offline play for songs they don't/won't license.

You can record the radio.

Yeah, but that was before they thought that was a problem.

"This mixtape thing will never take off"

Functionally, for the consumer, streaming is mostly identical to a recording. Want to listen to a song? Press play. The storage just happens to be on some server somewhere.

Except a recording is mine permanently and physically

True, but most users don't seem to mind. Arguably, streaming is just a better storage medium for most users. Until the company providing the service screws its customers over, if course. I doubt that possibility weighs very heavily into many consumers' buying choices.

But the relative cost one would be willing to pay varies.

Would I pay a streaming service $10 a month for 10 tracks, that I can only listen to on their service, but which I get unlimited plays of so long as I subscribe to their service? Hell no.

Would I purchase an album of 10 songs, that are mine into perpetuity to listen to, make reasonable copies of, fair use of, etc, for $10? Yes.

Would I pay a streaming company for on demand access to a broad catalog of songs? Yes.

But note how my consumption and value varies.

The thing is, streaming services are, fundamentally, gainining 'per listen' value, and that model is reflected into how they're paying rightsholders. That is, the more I listen to a track, the more value it collects for the owner.

A purchasing model is how many purchases. Listens are not really correlated to that (at least, not to the price). That is, one user may listen to the purchased album 100 times, the other may listen to one song 100 times, and one user may listen to the album 1000 times. All paid the same, all generated the rightsholders the same.

As such, I think treating streaming as a storage medium would be...poorly thought out. Not least of all because at that point you could make a strong case that the streaming service should be paying every rightsholder for every subscriber; they are, after all, -storing- that music for the new subscriber; nevermind if the subscriber ever listens to it or not.

The key difference is your rights, isn't it? After all, this is a legal issue.

I permanently have the right to listen to a CD I own as many times as I want.

With Spotify, as far as I'm aware, they can yank any part of the catalog without anything owed to me as a listener. If I wake up tomorrow and the only thing available is John Cage's 4'33", I have no recourse. Spotify isn't offering me storage space.

Not entirely. You get a CD, and a licence to reproduce it under certain conditions. If you purchase a music CD, your rights to reproduce it can legally be revoked (though I can't think of any cases where this has actually happened).

Perhaps, more importantly, it's easier for Spotify to enforce this, than a CD-making company.

You hold a physical artifact on which some data can be extracted and interpreted by a device build for that purpose, but the legality of you playing the data isn't implicitly tied up to the ownership of the artifact holding the data. That is what the licensing scheme is. The common assumption is to think that because you hold the storage, you are therefore entitled to decode the data held on it, but the laws about IP are there to limit this and allow to extract value from you using the device.

Otherwise, you could just legally extract the bits downloaded onto your computer and keep the music files you have just streamed from Spotify or any equivalent service.

It's just a really accommodating radio station that always plays your requests, no?

Well, now we're getting into the question of what the intent is behind having different pricing and licensing for broadcast and distribution of recordings.

How are jukeboxes licensed?

Guessing that would fall under "performance" as well, but each jukebox would be separately licensed. In the case of something like Spotify, it's n jukeboxes, where n is the number of total users. Of course, that's absurd, since most Spotify accounts are listened to a single user.

I think the reality is that over 20 years after the development of Real Player, we still don't have a good legal framework to discuss streaming.

It's also the reason behind ridiculous things like DRM.

The idea that there is a difference between broadcasting and copying, and that computers can emulate that difference is a pipe dream; nonetheless shared by most music labels.

It’s an endless boon to piracy, which should have largely died if not for the rampant greed and incompetence of publishers.

I agree publishers were incompetent (in clinging onto old models rather than adapting), but has streaming really helped the average artist?

Having the option to distribute music for free has been good, for sure

Setting the expectation that music should be near enough free, less so

You could argue this is one of those public good situations universal income is designed to address, but it certainly hasn't yet.

For the vast majority of history, musicians were not some of the wealthiest members of society, far from it. Music has traditionally been “near free” and only ceased to be during a brief period necessitated by tech. That period has long since ended.

I don’t see that an artificial value placed on music, rather than the previous real value set on its distribution, is necessarily a good thing.

How would you feel if someone were applying this argument to software development?

At any rate, rich, world-famous artists are the least harmed by changes in the music industry.

How would you feel if someone were applying this argument to software development?

I'd ask how much FOSS software is running on your machine right now, and how you intend to pay for it...

How much FOSS software is actually funded by big companies that are either trying to upsell support or non free offerings, trying to get others to contribute for free to help them,or by companies who are trying to "commoditize their compliments"?

Most major open source software is not done as a labor of love.

Whereas most music is clearly the muses working through mortal souls, right? Come on...

Whereas most music is clearly the muses working through mortal souls, right? Come on...

I'm saying just the opposite, he seems to implying that the majority of well known, popular open source software is done by starving programmers as a labor of love. Their is usually a financial motive.

I'm now imagining a disenchanted musician spending 8 hours a day at the cubicle making "business music."

Sounds like session musicians, or maybe the composers of advertising jingles.

Well you don't know anyone in the advertising and incidental music space

I understand what you’re saying, but I’m not a software developer so it may not hit as close to home as you hope. Having said that, I would point out that programming isn’t an art, but engineering. You’re not performing, you’re building something. Traditionally it’s been easier to earn a living by making something people want to buy than making art which may or may not be popular.

I don’t have a problem with that, and as I said, I don’t think anything other than a brief moment in the history of art does either.

Centralized billing is not the most lucrative method for creators.

It's only good for the middleman.

I am not casting the old label system as a Utopia for artists but it seems like the brave new world is even worse.

Being a musical artist is not easy business for pretty much every artists except for a few outliers, though we do appreciate and consume music.

If you made a graph with the x axis being percentile and the y axis being the amount of money made, on the far right side of the x axis there would be a huge spike where a tiny fraction are making a fortune. (I think) I'd prefer the spike to be smoothed out.

What's interesting is that Apple/Google/Pandora/Spotify could test this. Adjust the distribution curve and then see how demand for music services changes over the years. With more artists able to live as pros, would music as a whole be more in demand? I'd venture that music as a whole would be more in demand due to increasing the number of (quality) trials in the musical search space. And if you flatten it out too much, you would reduce the motivation to continue to try to "hit it big", so you're looking to optimize the distribution curve.

If you want to redistribute wealth, why stop at oenly musicians? I'm thinking universal basic income, then let robots do the work.

I think what you're doing (seeing this as an optimization problem) is asking the right sort of question

A related point is the FOSS-style model of "give away music for free, make money on tours/advertising/movie soundtracks" biases the search towards music that works well in live performance/in advertising/in a film. So we are missing huge parts of the search space.

Not even then. Musicians as a group weren't wealthy even in the heyday of physical albums. As with so many things, it's only a handful of top names that make a bundle.

Can we ignore any question about whether 21st century tech/economic changes are helpful to us by saying "for the vast majority of history, we lived in caves and many died in childbirth?"

That’s an excellent point, but I’d say that death during childbirth has always been recognized as a bad outcome. I’m not so convinced that the same can be said for the history of music before the modern mass market. I don’t think that the history of music is akin to the history of premedical chikdbirth; the history of music is in fact replete with positive outcomes we enjoy to this day.

Sure, but the question of whether or not streaming has helped music or musicians overall has nothing to do with the economic model of the 19th century and prior. It's about the change from 20th to 21st century.

I hope in future we come up with something better than any of the three.

> but has streaming really helped the average artist?

Sure has helped most of the artists I know, who would never be lucky enough/know the right people to be among the chosen elite that got to participate in the record system.

Streaming services and the internet means that 100000s of artists can have a following of maybe 1000 people each and still make ends meet doing what they love. They won't get filthy rich, but they'll make a living.

It doesn't seem outlandish to claim there's a distinction between a broadcast, where you might hear a song at a particular time of day, and having an on-demand copy of a song at any time. The former scenario could see you, for instance, buying a CD because you liked a song you heard on the radio; that is probably not as likely with Spotify.

People used to regularly create mix tapes from radio broadcasts.

Yes, I can remember putting the New Radicals on a dictaphone. If you did that the quality would be exceptionally low.

There is, but that distinction does not exist with internet distribution. It's arbitrarily enforced via DRM (which doesn't really work), which is in turn enforced by Section 1201 of the DMCA.

> The former scenario could see you, for instance, buying a CD because you liked a song you heard on the radio; that is probably not as likely with Spotify.

That depends on whether you want to support the record label/artist, and find CDs as/more convenient as/than streaming.

The trouble is that CDs are really less convenient, and therefore less valuable.

Copyright holders should react to the declining value of physical media by creating better distribution platforms. Unfortunately, they have failed miserably, and now resort to disproportional copyright enforcement and DRM, which pushes the value of their product even farther down.

I can't seem to follow your argument. If you want DRM-free, lossless, digital music to download and own you can buy it from countless shops - from iTunes (well, not lossless) to platforms like Bandcamp to niche stores like Boomkat.

I think the music industry, in contrast to its Hollywood sibling, has very much succeeded in offering DRM-free content from a wide range of stores, shops and platforms. Physical media like CDs aren't relevant to this development.

Of course a subscription-based streaming service like Spotify can't operate without DRM. It's the whole point of the service: If you stop being a subscriber you lose access to the content.

I want the liberty to compete with Spotify, Pandora, Google Music, iTunes, etc. without fear of debilitating litigation.

I want to enjoy music without ever sacrificing my security or privacy to DRM.

Just because the music industry is in a significantly better position than others does not make it good enough.

> I want the liberty to compete with Spotify, Pandora, Google Music, iTunes, etc. without fear of debilitating litigation.

Feel free to do so. Of course it will be an uphill battle and a very complicated process, but I guess that applies to competing with any kind of major service, regardless of its category.

> I want to enjoy music without ever sacrificing my security or privacy to DRM.

Again, you can. Buy music from the shop of your choice - it's yours. No DRM, no strings attached.

> Just because the music industry is in a significantly better position than others does not make it good enough.

I still don't understand what you're missing.

> Feel free to do so.

I don't. That is entirely my point.

Spotify started as a convenient P2P streaming service, then got the capital to pay rightsholders. If I were to do the exact same thing, I would almost definitely be stopped on the outset by litigation.

> Again, you can

Sometimes. A few specific services offer DRM-free tracks, but there isn't much competition in that space. Again, it is practically impossible to legally compete with incumbents.

> from the shop of your choice

CD's are still the gold standard for lossless DRM-free music distribution. That is not a good thing. That is not a reasonable thing. That is the status quo that we are all constrained to by a select few corporations. It's not as drastic a problem as in Movies/TV, but it is still a problem.

> I still don't understand what you're missing.

Maybe you can read my comments over again, and ask about specific points. I care an awful lot about the subject, and would be happy to clear things up.

For the vast majority of the internet users, it does.

They won't "hack" the online radio to download (rip) the stream. Even if it's just a click away via countless stream downloading services found via any web search engine.

DRM raises that technical bar by a few notches, but it doesn't really work for non-interactive content, because there are again countless sites that offer non-DRMed access. (So DRM works for games, because it takes a while to crack them.)

> So DRM works for games, because it takes a while to crack them.)

It really doesn't.

> For the vast majority of the internet users, it does.

The significant majority of internet users have been carefully conditioned with propaganda to be afraid of file sharing and other more convenient options.

The idea that it works just enough to be valuable is what these media corporations are constantly telling themselves, and each other. They have managed to cultivate a culture where that is almost true, so they continue to believe it.

What they are too afraid to believe is that DRM devalues their product more than it controls customers' spending. If that isn't true now (I am quite certain it is), it will be soon.

If the DRM on games takes a few weeks to get cracked it's done its job. Sales are really front-loaded for most games.

Do you really believe the same customers who buy a game the week it comes out would not pay for that game if they could pirate it soon enough?

That's absurd.

What's so absurd about it?

Most people who are willing to pay full price at the beginning of sales (usually $60, often over $100) are people who want to support the creators and distributors of the game.

Adding DRM is not likely to change a significant amount of that groups behavior. It does, however, significantly devalue the product.

That's what you say. But what evidence do you have for it? I contend that there is a significant number of people who would probably be willing to buy a game on its release date at full price, but will choose not to if a free bootleg is available. I also contend that for many or even most gamers DRM in video games is not an issue that really bothers them.

If you take physical media out of the equation you get buying the CD on iTunes or something. It's hard to see what utility this gives you beyond playing the song on Spotify.

Given that iTunes provides DRM free tracks, the utility it provides is irrevocable offline reproduction

I'd say that the majority of consumers don't really care about that, though.

They certainly do.

Not being able to burn a mix-CD for friends is something that bothers almost anyone.

The utility Spotify provides is discoverability. Spotify is a large and diverse collection.

> you get buying the CD on iTunes or something

As far as iTunes goes, it does not provide lossless DRM-free content at a competitive price, and is especially worthless to me, since it does not even run in Linux, and is painful to use in Windows.

There aren't many competitors either, because media corporations are holding back innovation and competition by demanding fees and DRM.

It does when there's no effective technical measure to stop you from getting one from the other. It shouldn't be possible to break laws by accident.

> It shouldn't be possible to break laws by accident.

There shouldn't be a law that anyone can break without affecting anyone else.

Broadcasting a song and on-demand streaming is technically isomorphic.

1. Clearly on-demand streaming implies broadcasting. 2. Presumably I could turn a broadcast into an on-demand radio stream by setting up a radio station which loops through all songs. Then I get into my rocket ship and travel away from Earth at near lightspeed and return, arriving exactly when the song I want to hear on-demand is being broadcasted. It's possible to approach zero latency for this method, depending on whether I stay in my rocket ship all the time and how fast I travel.

> Clearly on-demand streaming implies broadcasting.

That's the trouble with words.

The words imply that one thing is the other, but that just doesn't work out in reality.

Light speed travel doesn't exist and getting into a rocket to listen to a song sounds like a big inconvenience (not to mention prohibitively expensive).

Friendly reminder: when discussed in context of copyright laws, "broadcasting" and "copying" are colours, only tangentially related to technical meaning of those terms. The law deals with colours, not with physical reality.

http://ansuz.sooke.bc.ca/entry/23

(TL;DR: 'colour' captures those path-dependent aspects of a thing, like where did it came from and why someone is doing something with it. A song legally bought and one illegally acquired may be bit-for-bit identical, but they have different colours.)

> only tangentially related to technical meaning of those terms.

Let's get some new words then.

We need to be explicit.

>My guess is that ultimately streaming rights will end up as their own category

That could get complicated if labels and artists have clauses to be involved in any new rights management categories. Everyone might have to renegotiate from the bottom up.

These rights should be negotiated relative to consumer rights: if my music subscription fee pays for mechanical licensing as well as performance, I should be free to copy that music for personal offline use.

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