A Legal Blog by Aaron | Sanders, PLLC

Copyright and Music Explainer: Why Spotify Isn’t Really the Poster Child for Everything That’s Wrong with the Music Business

Maybe Spotify Isn’t Cannibalizing Music Sales, But Artists Still Aren’t Getting Paid

Spotify has become something of a punching bag for Everything That’s Wrong with the Music Business Nowadays. I once held out tremendous hope that Spotify would Fix Everything. It didn’t. Well, that’s not quite true. It did deliver on the consumer end. But as the years went by, the initial, hopeful trickle of new revenue for musicians never really increased. Millions of streams, but only a few bucks in royalties. What the heck was going on? Did Spotify somehow pull the wool over everyone’s eyes, including the eyes of the savvy giant music labels? Given how long the major labels held out before licensing their music to Spotify, that seemed unlikely. It was more likely that the labels got the better of the deal. But there was no one else to punch. And, where, precisely, was all the money going?

Some Light Shed, but Not Where We’d Like It.

FiveThirtyEight’s much-discussed article, “Maybe Spotify Isn’t Killing the Music Industry After All”, doesn’t really get into this, unfortunately. Keep that in mind when you see people citing the article to show that Everything Is Fine.

The FiveThirtyEight article is about the “music industry”…


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Spotify: A New Hope (Part 13 of our Online Music Services Series)

Or, the Attractions (and Distractions) of Licensing

Spotify has been available in the United States for a few months now. Until the recent kerfuffle involving its Facebook integration, the reviews have been positive. If you review the features list with which we started this Online Music Services Series, you’ll see that Spotify comes as closer to giving consumers what they want than any other service. In fact, it’s not even that close:

Portability: check: with Spotify Premium, you can listen to longs off-line and you gain access to Spotify’s mobile apps.
On-demand: check: you can listen to any song you want to in either your or Spotify’s catalog;
Music discovery: half-check: Spotify has a feature that allows others to share music with you, which should help you discover music you like, but nothing quite as robust as Pandora’s Music Genome.
Extensive catalog: check: Spotify’s catalog has about 15 million songs.
Low cost: half-check: Spotify Free has all of the features above except portability; for that, you need to shell out $9.99 a month, and you lose all access should your subscription expire.*

* If I were starting this series over again, I might have added “ownership” to this list. It’s important to me personally,…

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Turntable.fm: Can Internet Radio Consist of Rotating Guest DJs? (Part 12 in our Online Music Service Series)

Is Turntable.fm Too Cool for the Webcasting Tribe?

In our last two posts in this series, we saw how Pandora had to jump through about twelve hoops to come under the statutory webcaster license (just for the right to pay statutory royalties!), and even then, its business model was found to be legal only a couple of years ago.  Yet, compared to Turntable.fm, Pandora’s business is straightforward.  Turntable.fm’s innovations have earned it raves from the technocrati–and make for a fascinating copyright case study.

Whereas Pandora uses a computer algorithm to generate personalized playlists for its users, Turntable.fm encourages users to act as tastemakers, then further encourages the tastemakers by creating a kind of social competition, with the audience as judges.  It’s a kind of warp-speed American Idol but for cool kids and recorded music.  Turntable.fm is still in beta, so its final form isn’t necessarily set.  The description that follows is based on reports by users and Turntable.fm’s own FAQ.

I Am the DJ, I Am What I Play

Turntable.fm enables users to set up “rooms,” which are typically themed by music genre.  Visitors may opt to be a “DJ” or simply an audience member.  If you choose to be a DJ, your…

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Pandora Almost Wasn’t: the Definition of “Interactive” (Part 11 of our Online Music Services Series)

When “Unique” Doesn’t Mean “Special” (and Why that Actually Makes Sense)

Last time, we looked at how venerable Pandora fits into the legal ecosystem of online music services.  It’s a webcaster, which means that, if it plays its cards exactly right, it can avail itself of a statutory license for the right to stream sound recordings.  It turned out this is an arduous task, but Pandora (and many other webcasters) have been up to the task.  Except for one thing, which could have blown the whole project out of the water.

The first requirement that a webcaster must meet to be eligible for the statutory license is not to be an “interactive service.”  The Copyright Act provides a lengthy definition of interactive service, but it boils down to (1) playing requests, or (2) creating a program “specially” for the user.  It’s easy to avoid definition (1).  But what does it mean for a program to be “specially created for the recipient”?  The most successful webcasters are successful because they can create programs that are unique to the user.  Does that make them also “special” to the user?

As it happens, in 2001, the music industry sued one such webcasting service called LAUNCHcast.…

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You Are on Pandora, Ladies and Gentlemen (Part 10 of our Online Music Services Series)

Pass the Tests, Join the Webcasting Tribe

Pandora has actually been around for a long time.  It launched in 2005.  It bills itself as “internet radio,” but that’s not quite right.  There are no disc jockeys making song selections.  Instead, it uses its famed Music Genome algorithm to choose songs that Pandora thinks you’ll like.  You probably know how it works:  you enter the title of a song or the name of an artist, and Pandora provides you with a stream of music that is musically like that song or artist, automatically.*  The alternative was to place genres into increasingly narrow genres and sub-genres.  This requires a lot of hard work by taste-makers, who must be constantly updating their genres and sub-genres in light of new music.  (Anyone remember the old Listen.com?)  Some truly great artists were very difficult to classify.  Some songs were like WALL•E’s spork, neither fork nor spoon.

*  You can also choose music by genre, but that seems to defeat the point.

This idea, by the way, had been kicking around since 2000 as the Music Genome Project.  It’s always been a little difficult to describe in abstract terms the kind of music you like.  Even…

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