Musicians May Be Owed Billions in Unpaid Digital Music Royalties
Interesting article by David Kusek, CEO of Berkleemusic. I agree that a digital download from the iTunes Store should be considered a “license”, as opposed to a “sale”, and would therefore be subject to the 50% royalty payment. However, I don’t agree with this:
Certainly all of the cloud-based systems like Amazon Cloud Player and those being contemplated by Google, Apple and others will be commissioned under licenses, especially when you consider that multiple instances of files will be available on a PC, mobile device or streaming.
What is the basis of David’s certainty? I have yet to hear a plausible argument for a license requirement when it comes to storing purchased content on the cloud, or on any device for that matter. Amazon has already released their Cloud Player without any licensing and they’re planning on keeping that way. As Craig Pape, Amazon’s Director of Music, told paidContent:
We do not need a license to store music in Cloud Drive. The functionality of saving MP3s to Cloud Drive is the same as if a customer were to save their music to an external hard drive or even iTunes.
Nilay Patel agrees:
If you’re a Cloud Player customer, you get a defined 5GB or 20GB of storage, and the music that lives in that storage is your copy. Your copy that you’re allowed to make. It’s not “functionally equivalent” to a fair use copy anymore — it is a fair use copy.
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This is going to completely fuck the labels, since they can’t argue that Amazon is making unauthorized copies of songs. In order to stop Cloud Player, they’re going to have to completely switch tactics and argue that it’s actually the content that matters, and that Amazon doesn’t have the rights to enable streaming content from their platform. But that’s a ridiculous argument, since Amazon is just going to say that it’s not actually doing much of anything — it’s just giving users some storage space and publishing an app that can play those files over the network. The labels will have to somehow argue that the content of the music files is protected, since they can’t really touch what the users are doing to their own copies.
