September 20, 2008
Why Isn’t [Song] Available for Download?
I see this question a lot about songs by some artist or other who has a large catalog of songs available on the Zune marketplace. It frequently comes down to a question of legality.
Imagine that there is a band named The Band. One of the members of The Band - Bob Guy - writes a song. This song may be credited to The Band, or to Bob Guy. If it’s credited to The Band, the record label usually has the right to decide how they distribute it. However, if it’s credited to Bob Guy, the record label needs his permission to distribute it - because only The Band has given them that right. Even though Bob Guy was in the band and took part in that decision, listing him as the author gives him additional rights over that song.
Now let’s imagine Bob Guy goes out and starts a solo career. When he releases an album as Bob Guy, an invisible distinction is created between Bob Guy the band that released a solo album, and Bob Guy the individual person. To the listener reading the credits, there is no difference - indeed, they are the same person. But from a legal perspective, Bob Guy the band and Bob Guy the artist are different legal entities. Any number of subtleties in the contract language can create a legal requirement to get permission from Bob Guy the artist to distribute songs he wrote for Bob Guy the band.
To make matters worse, Bob Guy is probably not his real name. His real name might be Eric Schmidt, and one or more songs may be credited to Eric Schmidt. Even thought Eric Schmidt is Bob Guy the artist and Bob Guy the artist is Bob Guy the band, if the song was written by Eric Schmidt, they need Eric Schmidt’s permission to distribute it.
Confused yet? It gets worse. What if Eric Schmidt is dead?
It is likely that Eric Schmidt has passed on the rights to Bob Guy’s music, both the band and the artist. But Eric may have simply forgotten that once upon a time, he released music written by Eric Schmidt, and in the absence of a legal name change all unestablished rights to that music disappear until it eventually falls into the public domain. Nobody has any legal right to make decisions about it. For 75 years after his death, these songs are in limbo, and cannot be legally distributed except as already contractually established.
So when digital download became available, and those rights had never been negotiated, a significant part of the world’s music library was simply not legally distributable at all until it hit the public domain. Even if Eric isn’t dead, the music industry is finding that after they shit all over Eric’s career as Bob Guy, drove him hundreds of thousands of dollars into debt with “advances on royalties”, and ultimately bought all rights to his music at bargain-basement prices… well, he’s not well-disposed to giving them a fair deal on the digital distribution rights. He wants his piece of what they took from him. Unlike the day he signed away the fruits of his creativity to wipe out a half million dollars in debt, the record label doesn’t have any leverage now. They want something from him, they can’t get it anywhere else, and he’s going to drive a hard bargain before they get anything - because he holds all the cards.
So in general, the reason a song isn’t available for download is usually that there are complicated legal matters around rights, holes in many legacy contracts that can’t be fixed, and bitter artists the industry has abused.
Filed under: Business, Intellectual Property, Media, Music
6 Responses to “Why Isn’t [Song] Available for Download?”
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July 3rd, 2009 at 11:31 am
Why isn’t [this blog] updated more than twice a year is the real question.
September 21st, 2009 at 3:29 pm
Microsoft security kept asking me to remove my posts within an hour or two of making them, so I decided to just stop posting for a while.
But having been part of the big layoff this past April, I’m no longer at Microsoft, and I’ve been really busy getting evicted and starting a new business and traveling between Washington and Oregon being homeless. Plus my wife left me and took the kids earlier this month.
Things aren’t pretty over here, but they ARE a boundless source of excitement and drama. ;)
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