Soundcloud and copyright question

 
 I uploaded a song last night that was recorded and written by another artist. When I recorded it I didn't think about the copyright until I read the fine print so I locked the track as private. I don't intend to sell the track and I could make it so that it can't be downloaded...so is it ok for me to make the track public in that case?
 
 Out of curiosity I searched the title of the song and there are over 200 uploads of that same tune in various forms. Are these people breaking the law?
 
 
 
 

yeah... it's illegal.

you can buy the license and be inside the law..... or you can ignore the law and let it roll. Chances are very small that someone will come after you, but stranger things have happened. 

Usually when there is no money involved, it's not worth their time to even send a cease and desist letter. However, they might decide they need to make an example of some poor schlubb today and your name gets pulled from the hat..... in which case.... the full extent of the copyright laws will apply. 



On soundclick I believe they have the same warning but then they have a "Cover" genre.... so.... wassup wit dat?  I don't record many covers because I have too many originals that need recording, but also because I don't want to worry about copyright infringement issues.

Harry fox agency handles the licensing.... you can do it on the web in a few minutes and pay on the site and be legal in short order. 

No worries Starise, just post a Shameless Plug in the CH and we'll happily listen to it for Free!!

 Thanks Crg, I recieved the following from the publisher-

  27. Can I use your song on my web page? That depends, as requests for website use are handled on a case-by-case basis.
You will need to submit a written request for an Online Performance License. Please email the following details to************or fax to ************ the song title, writer(s) and publisher(s) of the song you are requesting
* your complete ministry name (who the license should be issued to), mailing address, phone number, and e-mail address
* nature of business of the individual/organization/ministry featured on the website
Regarding the specifics of your request, please provide the following:
* URL of the web page
* length of requested audio file
* description of how song is to be used on the website (what is seen on-screen as the song is playing)
* date of first use on website
* source artist (the artist performing the song)
* source album title (the album from which you obtained the song)
* source CD Stock # (if applicable, the product number on the CD from which you obtained the song)
* term requested (we can potentially license for an initial three- or six-month renewable period)



 Since I am not a " ministry" and I don't have a " ministry" website I don't know how they will look at it.
 This isn't a direct copy of the song either. I sung and played it so maybe it isn't a "copy" in the sense that I just ripped the tune and posted it. It isn't the original artist.

Since I am not a " ministry" and I don't have a " ministry" website I don't know how they will look at it. This isn't a direct copy of the song either. I sung and played it so maybe it isn't a "copy" in the sense that I just ripped the tune and posted it. It isn't the original artist.

 
I'm not sure what the ministry thing indicates either. It could be that if you are a ministry, you may be able to use it for free.
You doing a cover of the song is essentially the same as making a copy. If there are royaltys and licenses persuant to using the song, you will need to acquire rights and pay fees.

Especially if you've given the rights away.

Yep.

I reckon that common sense pays no part in this... I mean... it seems to me if someone covers a song and uploads it to something like Soundclick but allows no downloading or sales, no money made from the venture... no harm/no foul. There is no context that might offend the writer or artist unless, I guess, the cover artist were to have some offensive picture or political/religious wording in their profile. If it is simply doing a cover and posting it for people to listen to for free... I don't get where the harm is

then again I am not an attorney... they always seem to have to ability to make something out of nothing. Call 1-800-bad-song... laff.

I reckon that common sense pays no part in this

 
If common sense were to suddenly infect the American court system, the result would be catastrophic to the legal profession. The theory behind copyright infringement may be that damages are the result of loss of opportunity to the copyright holder to derive revenue from legitimate copies of his work. If a potential buyer decides he only needs one copy of a song in his collection, and foregoes buying an authorized copy by a famous band because he can get an unauthorized cover by an unkonwn artist who means it as a tribute, the author may have lost a sale. But how would a court decide how much he had lost, or how many copies he might have sold if the infringing cover were not available? The actual loss per copy is probably pennies, but how many sales had he lost? How would he prove the amount? Would the amount he could collect, or the cost of initiating an infringement lawsuit, make it impactical to defend the author's rights?
 
The answer in favor of doing the most to defend the property rights of the author or his publisher is to provide the alternative remedy of statutory damages:
 
http://wmlawreview.org/files/Samuelson-Wheatland_final.pdf

I just don't get it. I guess the industry makes the assumption that no one is honest and everyone will steal if they get the chance.

 
Well, if you accept the concept of intellectual property, then technically the guy who uploaded the cover without licensing the composition did steal. Copyright infringement per se is absolutely not related to the monetary gain that may or may not result from the infringement. Infringement for monetary gain (piracy) does subject one to more serious penalties, but where "willful infringement" under the law meets piracy is a potentially very expensive grey area.
 
One issue that people often miss is that control of the copyright is very frequently relinquished by the author and transferred to a fidiciary, i. e. an agency or publisher who is then responsible for enforcing it. So while I might be fine with you using my composition to create your masterpiece CD or download, I might have transferred my rights, and the new owner of those rights might be a corporation that owes a duty to shareholders to enforce my copyright. Or I might have died and my rights passed into the control of the executor of my estate who is responsible to my creditors to show that he is making every effort to preserve the value of my copyright by vigorously enforcing it, so that he himself is not subject to being sued by them. Or my sleazy agent might want his cut, and have a cousin who is an attorney who makes his living by shaking down websites or the people who post there.
 
Statutory damages can make suing someone monetarily worth the effort even if the infringer does not make any money from the copying, so long as he has some property worth seizing. Read the article I linked to above for a good review of the hazards (and injustice) of statutory damages. Just hiring an attorney to evaluate the seriousness of a threatening letter can cost a lot more than the licensing fee.

   I found over 200 renditions of the same song on Soundcloud. It really surprises me that 1. Soundcloud hasn't cracked down on it due to their potential liability and 2. The publisher hasn't been more diligent to enforce the terms of the published work.

 I listen to several of them and the ones I listened to didn't acknowledge the original artist of the publisher.

 I guess that if someone liked the song they might decide to buy it and the only place they can buy it is from that publisher or from someone with permission to sell it. In this way it does direct buyers to them.

 I am a member of songselect which is an interest who oversee CCLI published songs. It is amazing to me how many people try to collect off of old standards that have been somehow revised slightly. The artist gets permission from the original publisher to write and record a variation of it and in doing that they can make money from old material. Take an old tune and freshen it up a little bit, get permissions and you're on the way.If it is a "public domain" song even better. If someone accidentally credits you instead of the original artist you get the $$. ...all seems kind of sneaky to me.

 I did get a little off of the main idea here but I thought it tied in with the fact that remaking a song can be big buisness. This has never been my intention. I just recorded the song for the fun of it and wanted to post it.

I did get a little off of the main idea here but I thought it tied in with the fact that remaking a song can be big buisness. This has never been my intention. I just recorded the song for the fun of it and wanted to post it.

 
You are right on the money with the grey area of rights and use. The main idea is quite a lot of variables. I heard an artist introduce a song the other night as a song he wrote. It was a Beatles song. His interpretation was an arrangement of that song done in Gypsy Jazz style. Now why didn't he introduce it as an arrangement of a Beatles song done in that style? It was an excellent arrangement, but how much credence should one give to terms and statements of authorship in such a situation?

jayson

derFunkenstein


Harry Fox is also who my church used for our Christmas CD that'll be released this fall.  It was pretty pantless, all things considered.

Pantless ... what Church do you belong to!?! 
 
Cheers,
 
jayson

Freudian slip perhaps?  I meant painless.  :lol:

It really surprises me that 1. Soundcloud hasn't cracked down on it due to their potential liability and 2. The publisher hasn't been more diligent to enforce the terms of the published work.

 
Your point #1 has to do with the "safe harbor" provisions of 17 U.S.C. § 512. Soundcloud can remain immune from liability for infringement so long as it acts as a simple and ignorant conduit for the infringing material. These safe harbors were designe to keep ISP's from being harassed into extinction by copyright holders. Imagine the effect if every piece of data that is piped through the internet (Yes, Senator Stevens was right, it really is a series of tubes.) would subject the operator of every server along the path to legal liability if one of those pieces of data were copyrighted. The ISP's would need to find a way to examine trillions of bytes of data against a full text database of the library of congress in order to avoid being inadvertently involved in copyright infringement. In fact one of the four safe harbor provisions is there because without it, the mere fact that data had been stored in the memory of the server before being forwarded might be the creation of an infringing copy.
 
The content serving sites like Soundcloud are using an extension of this protection that is basic to internet operation. They are using the provision that immunizes an intermediary so long as he does not take any active part in examining, editing or choosing the material or selecting the ultimate receiver of the material. Unlike a publisher, or a radio station, where the entity is passing on material that it has examined, and thus becomes responsible for honoring the copyright, the dumb conduit will only become liable if he does examine what he passes on. Like Seargent Schultz in Hogan's Heroes, his defense is that "I know nothing." All he is required to do is to put in place provisions to immediately remove any material if he is notified that it infringes copyright, and that he has a policy to deny access to persons who repeatedly post infringing material. If Soundcloud were to do its own policing of infringement, it would paradoxically assume liability for that infringement by becoming in effect an editor of a publication.
 
http://digital-law-online.info/lpdi1.0/treatise33.html
 
Soundcloud also gets some dubious protection from the immunize-and-hold-harmless clause of your contract with them (terms of use) in which you agree to pay for any legal costs they incur or judgement against them as a result of your posting copyrighted work. Many posters are likely to be judgemnet-proof; a term of art in the legal profession meaning they have nothing of value worth seizing even if you win, so Soundcloud will not always be able to collect the damages you own them for getting them in hot water. 
Your point #2 speaks to Craig's post above regarding the impracticality and expense of policing your copyright when it is being violated routinely and represents a dubious loss of potential revenue. Services are being marketed that can crawl the web finding infringing work and potentially sending automated nastygrams to the websites that host them, but none of this is free.