August 21, 2007 4:00 AM PDT
Perspective: Web sites out of tune with musicians' rightsSee all Perspectives
In what amounts to a barter deal, Internet sites like iMeem, MySpace.com and YouTube do not charge any fees for their services: the musicians let the sites use their music for free while the sites then collect revenue from traffic-related advertising.
On the surface, granting a free license as compensation may seem like a reasonable trade. But many musicians may not realize that the sites may also claim a license that goes beyond what is necessary to transmit and stream music or other content.
Last year, for instance, Billy Bragg led a one-person, silent protest against the overly broad license MySpace took from its users. At the time, MySpace took "a non-exclusive, fully-paid and royalty-free, worldwide license" that allowed it or any party they authorized to "use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute" user-uploaded content on the site or any other concept or feature they might offer in connection with the service.
Bragg, and others, were concerned that MySpace could interpret the license to create ancillary marketing materials, like compilation recordings.
In response to Bragg's protest, MySpace revised its license to specify it had limited rights only to offer streaming music on individual Web pages. Some companies, like iMeem, have followed MySpace's lead to specify the scope and purpose of the license.
YouTube takes a different tack. It claims a "worldwide, non-exclusive, royalty-free, sublicenseable and transferable license" to content uploaded on its site "to use, reproduce, distribute, prepare derivative works of, display and perform" for any purpose as long as it is a business interest of it or one of its affiliates.
The breadth of the license YouTube takes is compounded through its inclusion of the right to make derivative works. Other sites like Veoh and Facebook also claim the right to make a derivative work in the license they take in content posted on their sites. A derivative work occurs where a new work is based on a pre-existing work, or works. That is, the X-Men movie and video games are derivative works of the Marvel Comics series, X-Men.
As farfetched as it may seem, there is nothing in the YouTube license that would prevent the company, or one of its affiliates, from using a video posted on the site as the basis of another work, including a television series or film. Tech entrepreneur Mark Cuban recently requested that readers of his blog submit ideas for new series for HDNet. He received more than 1,000 comments. When YouTube launches a network, it will only have to look at the videos on its site for ideas under the terms of its license.
Musicians look at sites like YouTube as platforms to deliver and broadcast their music to an audience. Yet, through overly broad license terms musicians inadvertently give companies an interest in their posted works, which may deny or limit future revenue streams or their ability to control the commercialization of the works.
There is no way to predict how an overly broad license may be exploited. History provides a valuable lesson that once someone has the rights to exploit a work, they do not easily let them go. All we need do is look at litigation stemming from recording contracts where an artist disputes a label's rights to works for uses that may not have been anticipated at the execution of the contract.
It is often said that those who do not learn from history are doomed to repeat it. Incorporating overly broad licensing language in their terms and conditions sets up companies like YouTube to exploit musicians. And the irony is that that's what critics also say about the record labels.
Nancy Prager, an intellectual property and corporate attorney, represents technology and entertainment clients on matters from privacy to music licensing. She maintains a blog at NancyPrager.wordpress.com and can be reached at email@example.com.
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