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Courts, Congress Put Spotlight on Copyright Office (Updated)

This post originally appeared on Concurrent Media.

The federal Ninth Circuit Court of Appeals handed broadcasters a major win this week in their long-running legal battle with Aereo-clone Film On. A unanimous three-judge panel overturned a lower court ruling, which had held that FilmOn was eligible for the compulsory license under Section 111 of the Copyright Act that allows “cable systems” to retransmit copyrighted programming contained in broadcast signals without needing to get permission from the copyright holders.

In overturning that ruling, the circuit court closed an apparent loophole created by the Supreme Court in its 2014 ruling against Aereo, in which it held that Aereo was infringing broadcasters’ public performance right by retransmitting broadcast signals over the internet. In addressing whether Aereo was “transmitting” broadcast signals as defined in the statute, Justice Stephen Breyer reasoned that Aereo was acting, for all intents and purposes, like a cable system, which unambiguously “transmits” a signal, and therefore Aereo required a license under the statute’s Transmit Clause.

Maria Pallante

FilmOn seized on that reasoning to argue in its defense against a lawsuit brought by Fox, that it should be treated as a cable system for purposes of the compulsory license, which is a related but legally separate issue under the law. Several courts rejected that argument (FilmOn was sued in multiple jurisdictions) but one judge, U.S. District Court Judge George Wu, accepted it, ruling in Aereo’s favor, which led to Fox’s appeal to the Ninth Circuit.

While the Ninth Circuit’s ruling is an important victory for the networks, how the court reached its conclusion could turn out to be important in ways that go beyond its legal ramifications.

Writing for the court, judge Diarmuid O’Scannlain did not accept either Fox’s or FilmOn’s argument in full, acknowledging that the statutory language is ambiguous enough that could plausibly be reach the way each side would have the court read it, but that neither interpretation was compelled by either the language or the legislative history. To resolve the question, therefore, O’Scannlain defers to the interpretation of the provision offered by the U.S. Copyright Office, which favored Fox’s view.

In doing so, however, O’Scannlain felt compelled to establish the legal foundation for such deference.

“Because the statute does not speak clearly to the precise question before us, we must decide how much weight to give the views of the Copyright Office,” O’Scannlain writes. ” The first question is whether Chevron or Skidmore provides the proper framework to structure our analysis.”

O’Scannlain then goes on, in a footnote, to lay out the basic legal distinction between the two standards. Broadly speaking, under the Chevron standard (from Chevron U.S.A. Inc. v. Natural Res. Def. Council), courts should defer to an agency’s construction of a statute it has been tasked by Congress to administer where the language of the statute is ambiguous as to the precise question at hand, so long as that construction is “reasonable.”

Under Skidmore, (Skidmore v. Swift & Co.) the weight given to an agency’s interpretation “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

O’Scannlain then ups the stakes.

“To resolve this issue,” he writes, “we would be required to rule on constitutional questions that could have outsized consequences relative to this case—such as determining whether the Library of Congress is a legislative or executive agency.” If the latter, presumably, the Copyright Office would have a better claim on Chevron deference; if the former, it might only be due Skidmore.

Then comes this footnote:

The Copyright Office is housed within the Library of Congress, and it is not clear whether the Library of Congress is part of the executive or legislative branch. Compare U.S. v. Brooks, 945 F. Supp. 830, 834 (E.D. Pa. 1996) (“[T]he Copyright Office is part of the legislative branch.”), with Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1341–42 (D.C. Cir. 2012) (discussing why the Library of Congress “is undoubtedly a ‘component of the Executive Branch’”). If the Library of Congress is part of the legislative branch, then the Librarian’s “power to appoint all of the officers who execute the copyright laws” may run afoul of the Appointments Clause of the Constitution.

As it happens, the legal status of the U.S. Copyright Office is very much a live controversy in Washington right now. The Office is currently leaderless, thanks to the abrupt removal of its previous head, Register of Copyrights Maria Pallante, in October at the hands of recently installed Librarian of Congress Dr. Carla Hayden. While theories abound as to the “real reason” behind Pallante’s removal, seen as a blow to copyright owners who viewed her as an ally, one factor appears to have been her outspoken advocacy for separating the Copyright Office from the Library and making it a standalone, executive branch agency, with a presidentially appointed register and its own rulemaking authority — a position Hayden strongly opposes.

Members of both the House and Senate Judiciary committees, many of whom are sympathetic to Pallante’s mission to separate the Office from the Library, expressed bi-partisan dismay over her defenestration, creating a rare rift between the Library of Congress and Congress. Pallante had worked closely with the House Judiciary Committee as it conducted a two-year review of U.S. copyright law with an eye toward reforms, including giving the Copyright Office a measure of independence from the Library.

At a meeting earlier this month, leaders of both the House and Senate committees urged Hayden to hold off on naming a new Register, according to a Wall Street Journal report. But in a letter to the committees following the meeting Hayden stuck to her position and reiterated her intention to make the appointment herself.

The chairman and ranking member of the House Judiciary Committee, respectively, Rep. Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.), struck back this week, introducing the Register of Copyrights Selection and Accountability Act of 2017, which would make the Register of Copyrights a presidentially appointed position with a fixed, 10-year term.

In his opinion in the FilmOn case, Judge O’Scannlain side-stepped the question of the Copyright Office’s status by ruling that even under the less-deferential Skidmore standard the Office’s reading of Section 111 was persuasive, and that internet services like FilmOn and Aereo are distinguishable from “cable systems” and therefore not entitled to the compulsory license.

While that might settle the matter as far as FilmOn is concerned, Judge O’Scannlain’s highlighting of the question of the Copyright Office’s status neatly illustrates what’s at stake in the tug-of-war between Congress and the Librarian over control of the office and the appointment of the Register. Courts have disagreed over the years as to how much deference to give the Copyright Office’s interpretations, particularly in close cases involving the application of an old statute to new technologies.

Clarifying the Copyright Office’s legal status could go a long way toward resolving the question of deference, which could impact cases far beyond Fox v. FilmOn.

Update: On Wednesday (3/29), the House Judiciary Committee approved the Register of Copyrights Selection and Accountability Act (HR1695), which would make the Register a presidentially appointed position but leave the Copyright Office within the legislative branch. The bill now goes to the full House.

Kicking Off Phase II of the RightsTech Project

The rights-tech ecosystem is evolving continuously, and now, the RightsTech Project is evolving with it.

Starting this month, the experiment that began with this website and the annual RightsTech Summit will expand to become a year-round networking, education and service organization open to all members of the rights-tech community. By joining, members will become part of a unique, cross-industry network of creators, media rights owners, technology developers, investors, and entrepreneurs working to find innovative solutions to the challenges of managing and monetizing copyrights on digital platforms.

 

In addition to our e-news, website, and conferences, members will enjoy posting privileges to the RightsTech blog and online discussion forum, access to exclusive networking events, participation on our advisory board, and access to a wide range of business-to-business marketing services designed to help rights-tech entrepreneurs and developers reach more than 40,000 decision makers in the media, technology, and creative industries.

Members can also participate in cutting-edge thought-leadership and research initiatives aimed at educating policymakers, investors, and related industries about the evolving rights-tech ecosystem and its potential to unlock new sources of value for creators and rights owners.

“It’s no secret that digital technology has transformed how media content is created and distributed. But until recently, that technology has not really been brought to bear on how the content gets licensed and paid for,” said Paul Sweeting, principal analyst at Concurrent Media Strategies and co-founder of the Rights Tech Project. “We launched the first RightsTech Summit in 2016 to highlight some of the innovative efforts we saw emerging in a number of different media industries to bring the ‘business’ part of the media business up to speed with the ‘media’ part. Since then, interest in keeping the conversation going has only grown.”

Added Ned Sherman, RightsTech co-founder and chairman of Digital Media Wire “From the outset, the goal of the RightsTech Project has been to provide a community for news, analysis and opinion on emerging technologies and technology-enabled strategies for the management, authentication and monetization of creative rights across diverse media industries. By becoming a year-round networking, education, and service organization, we will be able to provide additional services and resources to innovators and thought leaders from across the full range of media sectors as they each grapple with the challenges of managing and monetizing copyrights on digital platforms.”

Three levels of membership means the RightsTech Project is open to enterprises of all sizes, from startups to Fortune 500 companies. Individual memberships are also available.

Click here for more information on membership and on how to join.

 

More Money for Rights-tech: Dubset Mixes Up a $4M Funding Round

Music remix-rights clearance startup Dubset Media on Monday announced a $4 million Series A fundraising round as it prepares to scale up its platform to address the growing number of licensed streaming and download services looking to include DJ mixes and remixes in their catalogs.

Last year Dubset struck deals with Apple Music and Spotify to add fully cleared DJ sets to those services and plans to announce deals with additional outlets at next month’s SXSW festival, according to the company.

Dubset Media CEO Stephen White

“We’ve delivered thousands of mixes so far and we plan to ramp that up to millions and tens of millions,” Dubset CEO Stephen White told the RightsTech blog.

Dubset’s proprietary MixBANK technology identifies individual tracks within DJ mixes and then links that information with a clearance and payment platform that allows the original rights owners to get paid when those mixes are sold or streamed.

The round was led by venture firm Cue Ball Capital but also included strategic investments from MediaNet and its parent company SOCAN, which currently provide Dubset with rights data and payment infrastructure.

“We’re is excited to be a part of Dubset’s Series A funding,” MediaNet CEO Frank Johnson said in an emailed statement. “We believe MIXBank technology and the services it enables will revolutionize the way electronic music royalties are paid, and will ensure that everyone in the copyright ownership stack is paid for use in emergent listening formats like DJ mixes.”

The raise comes on the heels of private-equity firm Blackstone Group’s acquisition of performing-rights organization SESAC in January for a reported $1 billion, and adds to a growing list of recent VC and private equity investment in rights-tech startups.

The key to opening that spigot, according to White, was to broaden the conversation with potential investors to focus on rights management and clearances generally rather than keeping the focus on the music industry.

“When we started out we were very focused on music and on being a music play. That turned out to be very challenging from a fund-raising perspective,” White said. “VC’s hear ‘music’ and doors just close. They don’t want to hear about it. It was very important for us to shift our story to talk about rights management and rights clearances and not focus on music.”

Investor skepticism toward the music business stems from the industry’s well-documented difficulties in transitioning to digital platforms and the relatively poor track record that venture-backed music-tech startups have racked up over the years — a perception that persists, according to White, despite signs of renewed growth in the recorded music business in the past year.

“There’s still a big overhang in the investment community,” regarding music White said. “Most of the investment you see is in the rights management space and in acquiring catalogs” of rights. “It’s easier to understand, and the revenue is more predictable.”

Johnson added, “We believe that the future of music licensing and royalty administration will be found in strategic partnerships like the one between MediaNet and Dubset, where a combination of investment in exciting new technology combined with long-standing relationships with labels, publishers, rights societies, and artists unlocks new revenue channels for large and small rights holders around the world.”

 

Rights-tech Startups Driving Blockchain Investment

The data-visualization folks at Quid have been crunching some numbers on investment in  blockchain applications and they’ve come up with some interesting charts.

The researchers identified 450 venture-backed companies using some form of blockchain technology. And as you would expect, the biggest recipients of VC money to date have been Bitcoin miners, cryptocurrency exchanges, and companies involved in financial services of one sort or another.

But when Quid stripped out the fin-tech firms a very different picture emerged. Four of the top 10 recipients are rights-tech companies, including ascribe, artCOA, Monegraph, and Revelator.

The scale of the investments in non-finance related startups is far smaller than in fin-tech firms, of course. The top rights-tech company on the list, ascribe, has raised about $6 million to date, compared to more than $130 million for 21 Inc., which sells Bitcoin mining computers. But as Quid notes, its analysis “suggests that blockchain has big potential to transform a variety of industries, particularly those that rely heavily on data authentication and verification, including healthcare and digital media.”

 

A Chunk of History: The Medieval Roots of Digital Publishing

This blog post originally appeared in Concurrent Media.

One of the wonderful paradoxes of the digital era of media is its retrograde quality. We tend to think of inventions like the internet and peer-to-peer digital networks as apotheoses of modern communication, but their economic impact on many media industries has been to unravel their modern industrial structures and to resurrect many of their pre-industrial, folk foundations.

Nowhere has that been more true than in the case of music. MP3 files, P2P networks, and now streaming have blown up the multi-song bundle we called the album — and the profit margins that came with it — and restored the single to prominence, as it was in the days before the invention of the long-playing record (LP).

The much-derided phenomenon of unlicensed “sharing” of music over P2P networks also carries echoes of music’s past. Until the Gramophone and the Phonograph made private performances of music practical, music was almost always shared, in the sense that it was usually experienced as part of a public performance. While the industrial technologies of recording and playback made private performances lucrative the instinct to share music never really went away.

Even modern notions of musical authorship are in part a function of industrial technology and are now being challenged by digital technology. Prior to recording, many forms of folk music (think traditional American blues) held standard lyrical tropes and even entire verses as part of a commons that were recycled and rearranged by performers as needed. It wasn’t until recording technology enabled the fixation of a canonical version of a performance that many folk artists began to think seriously about authorship.

Today, EDM DJs treat recordings as part of a commons, recycling and reassembling their elements into unique performances.

The film and television industries haven’t experienced the same retrograde dislocation as the music industry has, in part because the media themselves are products of industrial technology. Film and TV have no pre-industrial past to resurrect. But even then, they have felt the tug of digital technology against the industrial economics of bundling, as programs are disaggregated from channels and channels are disaggregated from pay-TV tiers.

As a sometime-student of media history, I came across a fascinating recent example of digital technology’s pre-industrial DNA in an interview with David Hetherington, North American COO of Klopotek, ahead of the upcoming London Book Fair.

Klopotek AG, is a German software company that provides CMS and rights management technology to the book publishing industry around the world. Here is Hetherington’s description of one way Klopotek helps academic publishers monetize their works, taken from Publishing Perspectives:

“Typically, thinking in the book business,” Hetherington says, “has started with the book. And I think our view of it is that it really has to start with the grain of content…

“So the idea of taking content from various products and pulling it together means that the initial block of content is no longer sold as it is. It means that the content is able to be parsed and re-assembled.

“The users—whoever wants to re-assemble that content—can identify the pieces they want, can specify the part numbers. This, in effect, means that the owner of the content must give it a unique part number and pass that part number to the potential market.

“At times, in some markets, this has been called the “chunking” of a book, breaking it into salable sections that fit users’ needs. Nowhere is this more easily understood than on campuses, where professors can effectively build their own textbooks for courses by piecing together parts of existing works, a “chunk” at a time, to match the needs of a given set of students.

Klopotek’s sophisticated software helps publishers “chunk” their books and license the chunks separately into customized bundles. It creates a licensed alternative to the “course pack,” in which professors would assemble their custom bundles at Kinkos and then distribute them to students. It also provides a defense against book rentals and used-book sales by providing students an affordable option.

Any 14th Century university scholar, however, would immediately recognize Hetherington’s description as an example of the pecia system.

With the rise of Medieval universities in Europe, the demand for books for use by students increased dramatically. But in the years before Gutenberg made it possible to produce identical copies of texts at scale, reproducing books was a laborious, manual process, carried out mostly by monks or itinerant scribes, and incapable of meeting the demand.

A solution emerged in Italy in the 13th Century and spread quickly to other countries. Books were chunked into pieces (pecia) for copying by individual students, and the pieces were then passed around in what amounted to a peer-to-peer network until each student was able to assemble all parts of the text required for his course work (women were not permitted to attend university).

The system became formalized and regulated in the early 14th Century, beginning at the University of Paris. Certain book mongers were licensed to provide students with pecia rentals for copying taken from master texts certified by members of the university faculty. The rates that could be charged for each work were set by the university, and as demand grew and more master copies were needed to supply pecia, the texts were regularly inspected by scholars to make sure they did not become corrupted through the accumulation of copying errors.

The scholars who oversaw the pecia system were not concerned with authorship per se, of course, let alone droit d’auteur. The concept barely existed at the time, and in any case the texts in question were mostly classical or the works of the early Church fathers. The scholars’ interests were pedagogy and preserving the integrity of the texts, not rights management. But it shows that the use of chunking to affect the economics of academic publishing has a long history.

The printing press, many early examples of which were established in university towns, eventually did away with the need for the pecia system by introducing industrial economies of scale to the reproduction of books, although the system survived well into the 16th Century in some areas.

The mechanical press made the complete text the anatomical unit of the commercial publishing industry — “starting with the book,” in Hetherington’s formulation. But it wasn’t always that way, and with digital technology it need not be that way now.

dotBlockchain Music: Data Before Database

The dotBlockchain Music Project (dotBC), an ambitious effort to create an open-source data framework for sound recordings and musical compositions, received a major boost last week with the announcement that four industry partners have signed on to support the initiative: Canadian performing rights organization SOCAN and its rights administration subsidiary MediaNet; publishing royalty administrator Songtrust; independent music distributor CD Baby; and digital rights service FUGA.

The new partners, the first for dotBlockchain, will bring a catalog of more than 65 million recordings into the dotBC ecosystem, and will add another 500,000 new recordings a month, according to the announcement.

According to dotBlockchain co-founder Benji Rogers, the four partners were recruited in part because they represent most of the critical links in the music value chain: PRO, distribution, rights administration, and technology platform. dotBlockchain is also working with music publishers and leading digital service providers on joining the initiative, according to Rogers, but those partners are not yet ready to go public with their participation.

The of the dotBlockchain Project is to create a technical framework for permanently binding data on authorship and ownership of musical compositions to individual sound recordings. That package of sound file and ownership information could then serve as the foundation for others in the music value chain to layer on additional metadata related to their involvement in or uses of the work, such as the date of the recording and the identities of the musicians involved, and the date of and artists involved in any subsequent recordings of the same work.

If all goes according to plan, the system would provide an unbroken chain of data from any use of a work, such as streaming a recording of it, back to the original authors and rights owners, and to anyone due money for use (see the video below for a visual representation of how it’s meant to work).

Getting a real-world catalog of publishing information to work with was key to the next phase in the development of the dotBC ecosystem, Rogers told RightsTech.com.

“The most important when you’re trying to bootstrap something like this is you have to have a base level to start from. We needed actual sound recordings to work with,” Rogers to RightsTech.com.

SOCAN and CD Baby will provide the data on those recordings.

“We can now say, this is where the sound recordings are, and here is the publishing information,” Rogers said. “And now, a DSP can have all of that information for every stream.”

Rogers hopes that ground-up approach will allow dotBlockchain to success where other efforts to create a comprehensive library of ownership data have failed, such as the now-abandoned Global Repertoire Database initiative.

“Every other proposal for how to do this has been database-first. We felt this had to be publishing-first and then you build out from there,” Rogers said.

Rather than building and hosting its own database, in fact,  dotBC will use the public blockchain to register information, eliminating questions about ownership of the data and who would have access to it.

“This will give publishers much better visibility into how their works and being used and will put them on much more equal footing with other rights holders.”

With last week’s announcement the dotBlockchain Project officially entered Phase 2 of its three-part development plan, according to Rogers. Phase 1 included open-sourcing its code base and creating “wrapper” codes for binding ownership information to sound files. Phase 2, which Rogers described as a sort of “sandbox” phase, will let interested parties model real-world examples of what a finished dotBC file would look like and to test the robustness of the data chain. It’s scheduled to run through the third quarter of this year.

“I think by the late summer there will be a fair number of real dotBCs in the world,” Rogers said.

Phase 3, currently scheduled to begin by the end of the year, would involve implementing the system in the wild.

 

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Waiting for Zuck

Facebook last week snared long-time music industry attorney Tamara Hrivnak to head up its global music strategy and business development, luring her away from YouTube, where she had served as director of music partnerships.

The hire, which comes just weeks after reports surfaced that Facebook is moving forward with the development of its Rights Manager tool for identifying infringing content on its platform and had begun preliminary discussions with the major record labels and music publishers about securing licenses to host music on the site, further raised expectations that the giant social media network is gearing up for a major push in music.

Tamara Hrivnak

“Music is important and it matters – it connects us and binds us to times, places, feelings and friends,” Hrivnak said in a statement announcing her hire. “My career has been dedicated to growing opportunities for music in the digital landscape.”

That’s music to the ears of rights owners and distributors, who see in Facebook both a serious and growing problem of copyright infringement, but also a potentially major opportunity.

At a RightsTech panel on user-generated content platforms during the Digital Entertainment World conference last week, speakers representing multichannel networks, rights-management providers, and distributors were unanimous in identifying Facebook’s apparent moves into content licensing as the most important development to watch in the UGC space over the next year.

Ever since Facebook moved video front and center in users’ news feed it has become a popular destination for music videos, particularly user-created covers and lip-dubs of popular songs. None of the current is currently licensed, however, and so generates no revenue for the original rights owners.

The site has increasingly come under criticism from rights owners for failing to adequately address the growing amount of infringing content it hosts. Facebook also generates huge numbers of share-driven views of licensed content scraped from YouTube and other outlets without compensation to rights owners.

“With views in the millions, it’s time for Facebook to answer songwriters’ friend request and properly license their platform,” National Music Publishers Association president David Isrealite wrote in a Billboard op-ed in October.  “Otherwise, it may find itself de-friended by the music industry.”

The reports that Facebook is developing a more robust version of Rights Manager, and the hiring of Hrivak were sign as responses, at least in part, to such criticism.

But Isrealite’s op-ed also hinted, perhaps unintentionally, at the potential scale of the opportunity Facebook presents to rights owners if currently infringing content can be brought within the purview of licenses.

“[W]hile we don’t know the full extent of what is posted, we do know that engagement and viewership on Facebook often outpaces other social media video platforms.,” Isrealite wrote. “In fact, in a recent study of the popularity of copies of Adele’s music videos, of the 60,055 copies of ‘Hello’ found that while ‘Facebook had only 64 percent of the number of copies published to YouTube, Facebook still garnered over two times more video views than YouTube. On average, Facebook racked up 73,083 views per video, whereas each YouTube amassed an average of 23,095 views per video.'”

Currently the most widely used streaming platform for music, YouTube has emerged as the bête noire of music rights owners over what many view as paltry royalty payouts relative to the volume of usage it attracts. Apart from complaining about it, however, rights owners have so far had little practical impact on YouTube’s policies up to now, largely because they have lacked the leverage of an alternative.

Few other platforms have the scale to mount a serious challenge to YouTube. But one of the few that does is Facebook. If Facebook were to strike more artist-friendly deals with the record labels and publishers the data cited by Isrealite suggests it could emerge as a potent counterweight to YouTube — the main reason the DEW panelists cited for their (cautious) optimism.

Speaking to analysts during an earnings call last week, Facebook CEO Mark Zuckerberg offered rights owners still more reason for optimism.

“We’re focusing more on shorter-form content to start,” Zuckerberg said. “There is the type of content that people will produce socially for friends. There’s promotional content that businesses and celebrities and folks will produce. But there’s also a whole class of premium content. The creators need to get paid a good amount in order to support the creation of that content, and we need to be able to support that with a business model, which we’re working on through ads to fund that.”

Much will depend on the development of the revamped Rights Manager. While reportedly modeled on YouTube’s Content ID, few details of how it will work have surfaced to date.

For all of the complaints directed at YouTube over its payouts to artists, Google spent years and (it claims) more than $60 million to develop Content ID, which even YouTube’s critics acknowledge has evolved into a sophisticated and robust piece of engineering.

Facebook certainly has both the financial and engineering resources to throw at the problem. But development still takes time, as will building up the vast library of  reference files Content ID uses to match against posted content.

Without an effective content recognition system even the most favorable license agreements are bound to prove disappointing to rights owners. But if anyone can change the marketplace dynamics of ad-supported streaming it’s Facebook.

RightsTech in La La Land

The RightsTech Project is heading to La La Land February 1 and 2. Not the movie, the Marina, as in the Marriott Marina Del Rey in Los Angeles, where we’ll be hosting a two-day conference track as part of Digital Entertainment World.

Recognized by Hollywood insiders, digital influencers and industry leaders throughout the world as a “must-attend” event, now in its 4th year Digital Entertainment World (DEW) is where you want to be if you are in the business of creating or monetizing digital entertainment content.

As with the RightsTech Summit last year, RightsTech @ DEW will feature speakers from across multiple media verticals, including music, film and television, and video games. Topics include:

  • Inside the Black Box: Solving the Music Industry’s Data Problem
  • Making Blockchain Pay: Remittances, Micro-payments and Cryptocurrencies
  • Does Hollywood Need a Blockchain?
  • Rights I/O: Mapping Rights-In to Rights-Out
  • The Future of Music Royalties
  • Remix This: Derivative works and User Generated Content

Speakers include:

Bill Colitre, Music Reports
Russ Crupnick, Music Watch
Jonathan Azu, Red Light Management
George Howard, Open Music Inititative/Berklee College of Music
John Frankenheimer, Loeb & Loeb
Danny Anders, ClearTracks
Ivica Simatovic, Gamecredits
Ken Umezaki, dotBlockchain Music Project
Bryce Weiner, Tao Network
Zach LeBeau, SingularDTV
Jason Kassin, FilmTrack
Bryan Walley, Exactuals
Joel Jordan, SynchTank
Jeff Ponchik, Repost Nation
GregDi Benedetto, Music Aficionado
Fred Goldring, Music Aficionado
Lee Greer, National Performance Rights Exchange (NPREX)
Neeta Ragoowansi, NPREX
Erik Steigen, USA Media Rights
Tomas Likar, Hyperwallet Systems
Ralph Simon, Mobilium Global
Rian Bosak, Fullscreen
Joe Moschella, Jukin Media
Kuni Takahashi, Rumblefish
Stephen White, Dubset Media
Tamany Bentz, Venable LLP

The two days will also feature special presentations from technology developers and leading industry analysts.

Several rights-tech entrepreneurs are also among the finalists in the DEW Startup competition, with the winner to be awarded at the event.

The full agenda for the RightsTech track at DEW can be found here. Information on how to register for DEW can be found here.

 

Facebook Takes Aim at the ‘Value Gap’

Facebook is developing a system to automatically identify copyrighted works posted to its massive social network similar to YouTube’s Content ID system, according to a report in the Financial Times (here’s Billboard’s rewrite of the paywalled FT story).

Word of the move comes just weeks after an op-ed by National Music Publishers Association head David Isrealite appeared in Billboard calling on Facebook to address a growing infringement problem on the network, particularly with respect to user-posted videos featuring cover versions of songs that were never properly licensed from the publisher.

“In a recent snapshot search of 33 of today’s top songs, NMPA identified 887 videos using those songs with over 619 million views, which amounts to an average of nearly 700,000 views per video,” Isrealite wrote. “In reality, the scope of the problem is likely much greater because, due to privacy settings on Facebook, it’s almost impossible to gauge the true scale.”

Up to now, Facebook has generally fallen back on the DMCA safe harbor to deal with copyrighted work posted without a license to its platform, removing infringing material when requested by a rights owner but not actively policing copyrighted content uploaded to its platform. According to Billboard, however, Facebook has begun discussions with the major record companies about licensing content directly, although those talks are apparently in the early stages.

Facebook actually rolled out a tool called Rights Manager last year to help rights owners keep their copyrighted works off the network, but that system was mainly designed to address the problem of video “freebooting,” in which Facebook users take videos from YouTube and other sources and post them to their walls, often generating millions of views without compensation to the rights owner.

According to this week’s published reports, the new system is aimed more at policing music use on the platform, and seems driven at least in part by Facebook’s desire to avoid the sort of sustained, naming-and-shaming campaign the music industry has mounted against YouTube over the so-called value gap.

What’s not clear from the published reports is what Facebook has in mind for what to do about the unlicensed content the new system identifies. But here’s hoping it doesn’t follow YouTube’s example too slavishly.

YouTube’s Content ID essentially offers rights owners a binary choice: take the content down, or leave it up and let YouTube run ads against it on terms set by YouTube. What YouTube doesn’t really offer rights owners is a means to effectively engage with users who are viewing or posting the content.

Facebook has an opportunity to offer rights owners a much richer environment to engage with music fans. If someone has gone to the trouble of covering your song and making a video of it, they’re probably a fan. And when they post it publicly on their Facebook wall you know exactly who they are. Even if the user shares the content only with his or her friends, Facebook knows who they are and it knows a lot about who their friends and other connections are.

More important, Facebook has the means to allow artists to engage directly with those fans and potential fans. Such engagement may have limited appeal to songwriters and publishers, but it could prove to be a boon to recording artists and labels by literally putting a face on their fans.

Even for songwriters and publishers, the type and volume of data Facebook’s new system could potentially yield on how, where, and how often their content is being consumed could be valuable.

In short, Facebook has a chance to bridge the value gap by offering rights owners more choices than simply take-down or hand-me-down monetization.

 

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