No one begrudges content creators being given the money they are owed for their work. But when ASCAP (the American Society of Composers, Authors and Publishers) starts abusing its position of authority and asking ordinary users to cough up, well most of us start to question what the hell is going on.
The Internet has brought just as many problems as it has solutions, just as much hassle as it has joy. A huge one of these issues concerns how the works of songwriters, musicians, filmmakers etc. get used on the Web, with most people seemingly having little to no regard that they may be accessing someone’s copyrighted material for free without the creator’s permission.
The Copyright Issue
This is obviously the case with peer-to-peer file-sharing networks which enable people to upload and download media of all kinds, whether it be copyright-free or otherwise. But most online video sites have to play by the rules, or else they risk being taken to court, fined huge amounts of money, and eventually put out of business.
YouTube is a prime example. When the site was started it was seen as a pretty lawless place, with copyrighted clips being uploaded all over the place, and little done to appease the concerns of rights holders. But that culture gradually disintegrated, and when Google took over disappeared altogether. YouTube is now a legitimate and very successful business which firmly sits on the right side of the law.
Embedding YouTube Video
A huge part of the appeal of YouTube is the ability to embed a video on another Web site, blog, Facebook profile or whatever. It takes YouTube out of YouTube and enables videos to be spread around the Web, go viral, and get seen by millions of people. Which is seen as a problem by the legal team at ASCAP.
According to Valleywag, Jason Calacanis recently tweeted the news that he’d been emailed by ASCAP with a request for him to acquire a license from them for embedding YouTube videos. He said:
“Just got an email from ASCAP asking me to pay for an Internet license for running a YouTube video. hello??!?! #ascapfail”
ASCAP R CRAP
Calacanis is the founder of Mahalo, a human-powered search resource which pushes in the direction of news stories and videos which are hot or deserve greater attention. And part of the site is dedicated to the embedding of the latest and greatest videos. Which shouldn’t even be a problem, but is something which ASCAP has clearly taken issue with.
ASCAP licenses the performance rights for music and then collects any royalties due on these performances. And it feels that by embedding clips of the works of artists it represents, Calacanis should have a license to do so, and then pay royalties every time a Mahalo user plays the clip directly on the site. ASCAP said:
ASCAP does not offer licenses to – or require licenses from – those who simply make their personal blogs available on purely noncommercial Web sites. Mahalo.com is a larger venture than simply a personal blog, and therefore ASCAP is engaged in discussions with Mr. Calacanis concerning the use of ASCAP members’ music on the site.
YouTube Terms of Service & DMCA
YouTube has always maintained its commitment to sort these kinds of legal problems out and asked any site owner approached by ASCAP (and there have been a few) to refer the organization to YouTube itself.
This has not stopped ASCAP harassing website owners leaving many Web sites which embed YouTube clips prodigiously worried about whether they’re about to be hit with a huge royalties claim and legal bill.
From my layman’s perspective on the issue, ASCAP has no legal basis for these claims. At least let’s hope I’m right because if not it’s going to be a bloodbath.
ASCAP has an uphill struggle with these ridiculous claims for two main reasons:
Rights Waivered Uploading to YouTube
YouTube’s ToS mean the uploader grant’s YouTube permission to allow their video to be embedded to other sites.
“By submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions…
http://www.youtube.com/t/terms”
In addition uploaders to YouTube can simply turn off site embedding anyway, so if they don’t want websites embedding their video they just turn it off.
DMCA Takedown Notice
If a pirate video has been uploaded to Youtube then the copyright owner (in this case ASSCAP – mis-spell intended) then the correct procedure to take it down is a DMCA takedown request. That’s the law! If ASCAP want to argue that they can join Viacom in their billion dollar lawsuit.
The DMCA protects YouTube and website owners against the actions of individual pirates that mis-use YouTube. A rights holder can contact YouTube and YouTube has the chance to take it down first before any further action is taken. This is how it goes down in the video copyright world most of the time. However, from time to time you get companies trying to make up their own rules.
Potential Email Scam?
There is also the possibility that this was all an email scam and someone was just pretending to be ASCAP and trying to trick website owners out of money.
What to Do if ASCAP Claims Royalties From You?
We are not in the business of providing legal advice, so you should always ask a legal representative. However, this is a response you may wish to consider.
Send a polite reply pointing ASCAP to YouTube’s infringement notification page (youtube.com/t/copyright_notice) and ask them to discuss any licensing deals directly with YouTube.
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