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Facebook resisted a few days longer than MySpace but finally has given in to the RIAA's demands that the Project Playlist app be removed for copyright violation. It's been a real take-one-step-forward and two-steps-back few days for Project Playlist, which also scored a big win by signing a licensing deal with Sony BMG.
The RIAA sued Project Playlist back in April and yet the company has been able to increase its funding and attract top talent since then. The start-up announced funding from Bob Pittman's Pilot Group (Pittman joined the board) and the hiring of former Facebook COO Owen Van Natta as CEO. Rafat called the service "borderline legal" at the time; Van Natta needs to get the other labels on board to move the needle to legal.
It's an odd construct all around: Warner Music Group (NYSE: WMG), Universal Music and EMI are suing Project Playlist with the RIAA, Sony (NYSE: SNE) is a Playlist partner now, and all four are part of the MySpace Music JV. That last, of course, goes a long way to explaining why MySpace moved more quickly than Facebook when the issue was pressed. Facebook's rationale via MediaMemo: "The Recording Industry Association of America (RIAA) initially contacted Facebook last summer requesting the removal of the Project Playlist application for copyright violation, and recently reopened those communications. We have forwarded the RIAA's letters to Project Playlist so it can work directly with that organization and music labels on a resolution."
MediaMemo: "The only surprise here is that it took Facebook this long to face up to reality: There was next to no upside for Mark Zuckerberg and company in fighting the big music labels, three of whom are suing Project Playlist. But there was plenty of downside: At best, the social network would end up squaring off against potential partners; at worst, it's conceivable that it could end up being sued by the labels as well."
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Edgar Bronfman, Jr.'s Warner Music Group (NYSE: WMG) may not be close to settling its disagreement with YouTube over music video revenue but at least he's out from under a $100 million lawsuit. The lawsuit, a hangover from the $2.6 billion leveraged buyout of the music company from Time Warner (NYSE: TWX) in 2004, was filed by former Simon & Schuster CEO Richard Snyder in 2007. Snyder claimed he wasn't compensated properly for his role in bringing investment bankers to the deal and sued Bronfman personally. But the New York Supreme Court disagreed, dismissing the case Tuesday and ordering Snyder to cover the court costs. Warner CEO Bronfman said Snyder's role was exaggerated. The court cited a statute (pdf, page 58) that voids oral agreements to compensate for negotiations.
Dealbook: "'Today's decision confirmed what we have said all along – that *** Snyder's claims were nothing more than a work of fiction,' Mr. Bronfman's attorney, Orin Snyder, said in a statement."
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Yesterday we reported that GateHouse Media filed suit against The New York Times Company (NYSE: NYT) for copyright infringement. GateHouse claims that NYTCo's Boston Globe violated copyright laws when it lifted headlines and story ledes from GateHouse's publications—even though The Boston Globe cited and linked back to the GateHouse pubs. The full complaint is after the jump. Gatehouse Complaint
Gatehouse 2
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The Screen Actors Guild (SAG) has delayed voting on a potential strike until at least January 14, THR says. The actors' union had planned to send strike authorization ballots to its members on January 2—though it had already started asking members to approve a strike vote when talks with the Alliance of Motion Picture and Television Producers (AMPTP) ultimately broke down in late November.
The two parties struggled to hammer out compensation terms for Web content, as well as residuals for new media and DVD sales, among other details. The report says the move to delay the vote came after a NY faction of the union spoke out against a possible strike, citing the poor economy as a whole, but SAG spokesperson Pamela Greenwalt would not comment. An AMPTP spokesperson said he knew the vote had been delayed but declined to comment further.
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The New York York Times Company is being suited for copyright infringement over its Boston Globe local sites linking with headlines and ledes to another publisher's articles. GateHouse Media, which publishes 125 community papers in Massachusetts, filed suit in U.S. District Court there Monday. The company claims that the Globe sites lifted headlines and ledes word-for-word and therefore infringed its copyright, even though the items were credited to and linked back to the Gatehouse pubs, according to Boston.com, which is owned by NYTCo (NYSE: NYT).
—No link love lost: In the complaint, Gatehouse says it wants NYTCo to shutter Your Town Newton, one of Boston.com's new local sites, reports GateHouse's Newton TAB. GateHouse says that Boston.com's month-old Newton site used content belonging to The TAB's online counterpart—called WickedLocalNewton.com—and its sister pubs. Specifically, GateHouse charges that Boston.com both through advertising and its direct aggregation is confusing readers about where the articles actually originated. And even though Boston.com does link back to GateHouse sites, the publisher is frustrated that the links do an end-run around the ads on its homepage. In addition to Your Town Newton, Boston.com launched two other hyperlocal outlets last week for the towns Needham and Waltham. Back in May, Boston.com created BoMoms, a social net and local guide aimed at young mothers. Boston.com execs have planned to roll out about 100 other hyperlocal sites.
—Aggravation over aggregation: It's been a while since sites threatened legal action related to aggregated content. The GateHouse-NYTCo suit comes a few days after Huffington Post's Chicago-based site was called on the carpet of using parts of Chicago Reader's concert reviews without permission. Also, the suit is being brought at a time when local and regional papers are feeling crushed by the economy and the general state of the newspaper business. NYTCo rep Catherine Mathis tells Boston.com that the its hyperlocal sites aren't doing anything different from what blogs have been doing all along. Mathis: "Far from being illegal or improper, this practice of linking to sites is common and is familiar to anyone who has searched the Web."
Social Media Deals Report: This 199-page report, filled with charts and data, examines the categories, number and size of VC and M&A deal in social media from 2007 through 2008. Visit the ContentNext Reports page
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—Project Playlist seals deal with Sony (NYSE: SNE) BMG : So what can you do with a double-digit round of funding? You can use some of it to pay record labels' licensing fees for legal access to their tracks—at least that's what Project Playlist seems to have done. The music streaming service has brokered a deal with Sony BMG for access to its audio and video catalog. Playlist is being sued by other labels like Warner Music, EMI, UMG (and the RIAA) because its users share tons of unauthorized tracks, and MySpace recently banned its widgets; so this first deal with a major label could usher in a new wave of "legitimacy" for the service. (It may also be a glimmer of hope for other music sharing startups disheartened after the shutdowns of sites like Mixwit and Muxtape).
Founder Jeremy Riney hinted that the company was working on other deals in a release, saying: "We hope that we soon will be able to provide our users with ready access to even more of the music they want." Playlist poached new CEO Owen Van Natta from Facebook and picked up an undisclosed amount of funding in early November (though sources hinted that it was in the $18 to $20 million range).
—Music games help artists (not labels) rake in the dough : Music game franchises like Activision (NSDQ: ATVI) Blizzard's Guitar Hero and MTV Games' Rock Band are making some bands more money than their latest albums. Kai Huang, co-founder of RedOctane (the Activision studio that first developed Guitar Hero), told the AP that Aerosmith made more money from sales of Guitar Hero: Aerosmith (which launched in June) than from either of its last two albums. The music games offer multiple revenue streams for artists that appear in them: initial sales (which topped $1.9 billion in the past 12 months, per NPD), downloadable song sales (new tracks typically cost about $1.99, though some are offered for free) and image and likeness licensing fees; the latter of which typically bypass the labels.
And the labels want a bigger cut, particularly as CD sales continue to dwindle. The problem is, they don't have much leverage, as these games use fewer than 1,000 tracks combined. If a given label decides not to allow its content to be used, the gaming companies will find other songs—and their artists might even leave. Wedbush Morgan entertainment analyst Michael Pachter told the AP: "If Warner wants to say we'll take our 20 percent of the market and go away, a lot of bands are going to leave the label if they think they can get better exposure by being on these games."
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The British music industry had always eschewed American cousins' penchant for suing illegal downloaders. Now America's RIAA music org has come around to a European way of thinking. It's giving up suing the downloaders and will instead enlist ISPs to send warning letters to transgressors.
That's straight out of the playbook developed in France and the UK this year. While France has favored a three-strikes-and-you're-out approach, disconnecting law-breakers after repeated warnings, in the UK a memorandum of understanding signed between ISPs, labels and the government follows the same warning tack but stops short of network disconnection. Full details on paidContentUK
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NYTimes.com is being blocked in China, even as some news sites have had recent restrictions lifted, IHT reported. A number of news sites belonging to the BBC, Voice of America and Asiaweek had restrictions lifted by Friday after being blocked a few days earlier. Asked why NYTimes.com is being blocked,—though access has been erratic geographically—Chinese government officials were reticent with the IHT, saying they weren't familiar with the problem, adding, "Web site maintenance is not within the job purview of the Foreign Ministry." (Ed. note: Some days a laugh track would come in handy here.)
—James Fallows: The Atlantic Monthly journalist, who has been living in China for the past three years, shakes his head at the decision to block NYTimes.com. Calling the use of the Great Chinese Firewall "just strange," Fallow's writes: "China's official PR machinery often succeeds mainly in making the country seem far more closed-off, impenetrable, defensive, and difficult to deal with than it actually is most places most of the time... The vast majority of Chinese net users would never look at NYTimes.com anyway—it's in the wrong language. Those who really want to see what's on there can find a way to do so, despite the block. And how confident, open-minded, rules-abiding, modern and so on will the episode make the Chinese government look in other countries' eyes?" Fallows has a little more on China and NYTimes.com here.
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The news is filled with stories of how much the Securities and Exchange commission has missed but, hey, maybe some of the atrocious examples of financial skulduggery could have been caught sooner if the commission had moved faster towards interactive filing. But that tortured march at least has an end in sight now with this week's vote to mandate electronic filing with interactive data for all public companies and mutual funds. In the short term, the result is a boon to the XBRL (eXtensible Business Reporting Language) industry even though the mark-up acronym doesn't even appear in the SEC release. It should give anyone who works with financial data much more powerful tools and, as more data is filed this way, a better grasp of the information than EDGAR currently provides.
How it works: Each "fact" in a financial statement gets a tag that makes the information more searchable and more readable via software. SEC: "Investors will be able to instantly find specific facts disclosed by companies and mutual funds, and compare that information with details about other companies and mutual funds to help them make investment decisions." The SEC provides open-source software for viewers.
When it takes effect: Voluntary XBRL filing is already in effect with 100-plus companies and some two dozen mutual funds taking part so far. The top 500 public companies have until the first earnings report for a quarter ending on or after June 15. That means Q209 for most of the largest companies. Other U.S. companies filing according to generally accepted accounting principles (GAAP) will be phased in over the next two years with December 2011 as the endpoint. Companies do not have to wait for the mandatory start. Mutual funds will be required to use data tags in 2011 and will have to post the data online if they have websites.
Video of the SEC's open meeting
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 After years of engaging in a largely futile campaign of lawsuits against illegal file-sharers, the Recording Industry Association of America is giving up that tactic. Instead, the RIAA hopes to enlist the help of broadband ISPs to stop music pirates from giving away copyrighted material, WSJ reported. The record label organ has crafted initial agreements with the major internet providers, though the companies weren't specifically identified. The first step would involve alerting ISPs that one or more of their users is uploading unauthorized tracks.
—Three strikes: After that, the ISP would either send the RIIA's warning to its offending users or directly ask them to stop. If the user ignores the warning, they could receive one or two more alerts telling them to cease their illegal activity. At that point, the provider could slow down accused pirates' broadband speeds. And if that still doesn't work, users might have their internet service shut off completely. The RIIA's move closely resembles the action taken up by France's parliament last month. The proposed "three strikes" rule has sparked a battle between France and European Union parliamentarians, who have voted to force ISPs to seek a court order before disconnecting a user's internet service over alleged music piracy.
Separately, the British recording industry has also adopted the more gentle approach of collaborating with ISPs to issue warnings to users caught aiding and abetting illegal music downloading. In July, the BPI - after two years of hammering away - signed a memorandum of understanding (MoU) with Britain's six largest ISPs, who agreed to work with the British music trade group to try to stop illegal downloads, including sending out written warnings to customers caught pirating content.
—The lawsuit card remains: The RIAA will still maintain the right to use lawsuits against particularly egregious music pirates, though the use of legal action is expected to diminish. The group also defends its litigiousness ways, saying the situation would be worse if it hadn't taken individuals to court. As evidence, the RIAA pointed research from market consultancy NPD Group which said the percentage of web users who download music has remained fairly constant at roughly 19 percent the past several years. Still, the volume of file-sharing has grown over the same period as well. In the meantime, Nielsen SoundScan said over a billion digital full tracks have been sold in 2008, up 28 percent over last year, BillboardBiz reported.
Photo Credit: jsmjr
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—NY governor proposes tax on digital downloads : If Gov. David A. Paterson's budget passes, cash-strapped New York could impose a 4 percent tax on digital downloads of all kinds—books, ringtones, games, VOD movies, and of course, music tracks—to help balance its budget in 2009. The NYT's City Room said the tax would kick in next June and bump up the cost of a 99-cent iTunes download to about $1.04. State officials say the so-called "iTunes Tax" could add as much as $15 million in revenue the first year it's enforced, and about $20 million a year thereafter. States like New Jersey have already broadened the scope of their taxes to digital downloads, and in April, New York passed a similar measure (dubbed "the Amazon Tax") aimed at forcing online retailers to collect taxes for goods "sold" in the state. Amazon is currently challenging the law, and there has already been some pushback about the new proposal. Apple's official policy is that it will charge tax on tracks in states where applicable.
—Mixwit bites the dust : Online MP3 sharing and mixing service Mixwit is shutting down, blaming legal uncertainties. Like Muxtape before it, Mixwit let users create and share their playlists (it pulled many of the songs from music search engine Seeqpod), though it wanted to expand to include photos and videos. Users could also customize the appearance of their playlists, and the startup was working on deals with various labels to secure licensed tracks. But Mixwit's founder Michael Christoff told TechCrunch that the costs (including potential legal action from the RIAA) outweighed the benefits: "I'm sure I don't have to explain that our mixtapes are perceived to be in a legally ambiguous state (at least as far as the labels are concerned) ... We could never get assurance that the future of Mixwit would not be hurt by the perceived liabilities of its past, so we decided it was time to to shut things down."
The RIAA actually forced Muxtape offline by filing a copyright infringement complaint with the site's Web hosting service, and founder Justin Ouellette chose not to fight (nor continue to pursue licensing deals that had become "too complex" and "too restrictive" anyway). Of course, there are other online mixtape services: Mixaloo only lets users hear 30-second snippets of others' tracks without purchasing them, blip.fm lets users pair their tracks with 140-word messages (a la Twitter) and 8tracks, which is currently working out a deal to let users buy MP3s through Amazon (NSDQ: AMZN). But it's almost a question of when they'll be targeted by the labels, RIAA or both, not if.
—Billboard donates music to soldiers : Billboard is running a promotion giving U.S. Army soldiers the gift of digital music. People can sign up between now and December 31st to give two free music downloads to a currently enlisted solider, along with a short holiday message. There's no charge to the sender.
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 The percentage of internet users who bought a CD in Q3 fell to 22 percent from 25 percent last year, according to an online survey by market researcher NPD. Oddly enough, that's still better than the 15 percent of web users who paid for a music download last quarter. Both figures show why overall demand for music by internet users was down 2 percent in Q3.
—Online grows, albeit slowly: To be fair, online is at least still growing, while physical purchases are still tanking. The slightly wider use of online music stores like iTunes and Amazon's provided a small boost to the category over last year In Q307, 13 percent of the internet population bought music from a download store, meaning a 2 percent increase in the growth rate. In general legal music download volumes grew by 29 percent in Q3.
—P2P still a favorite: The number of Internet users sharing music on P2P sites held steady at 14 percent in Q3. However the volume of music shared via P2P sites grew by 23 percent, as P2P users reported downloading more files. Teens purchased 34 percent more paid digital downloads compared with year-ago. The growth in P2P file downloading was acute among 13- to 17-year-olds—up 46 percent. NPD pointed out that sharing files by burning music to a CD fell 25 percent among teens, suggesting that physical discs hold little appeal even when it's being given away for free.
—Thanks to Rock Band: NPD's survey of 4,400 online users in Q3 also found that 22 percent of music buyers (including CDs, digital or mobile) overall played a music-related video game, such as Rock Band or Guitar Hero, indicating that video gaming may be the one hope for the music to try to make some money from a deeply troubled business. Release
Photo Credit: Neeku
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Yahoo (NSDQ: YHOO), perhaps hoping to get the focus off its finances and CEO search, will reduce the amount of time it holds on to user data to three months from just over a year. After that period, Yahoo will "anonymize" user log data within 90 days with limited exceptions for fraud, security and legal obligations. The Sunnyvale, CA-based company is also expanding its privacy policy beyond search log data to include info on pageviews, page clicks, ad views and ad clicks.
Back in August, with an eye to mollifying Congress and state legislators who were taking a harder look at online privacy and behavioral advertising, Yahoo said it was broadening "opt-out" controls covering targeted ads across its portal. Yahoo offered up the new tools as part of its response to a Congressional inquiry about ad targeting sent to 33 companies, including AOL (NYSE: TWX), Google (NSDQ: GOOG), Microsoft (NSDQ: MSFT) as well as internet service providers like Cablevision (NYSE: CVC), Cox Communications and Charter Communications (NSDQ: CHTR), from the House Energy and Commerce Committee. In September 2007, Google said it would discard user data after nine months. With a new administration and Congress taking office next month, Yahoo's move will increase the existing pressure on the other companies to match it on privacy controls. Release
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 It probably won't rise to the level of the Bernie Madoff scandal, but it's not a joke either. The Securities and Exchange Commission has filed charges against National Lampoon CEO Daniel Laikin and several other execs in a Philadelphia civil court. The execs are accused of manipulating the entertainment company's stock price, Tech Daily Trader reports. Separately, the Justice Department is also looking at possible stock fraud at the company. In a statement, DOJ says that Laikin and others conspired to pay others to inflate the company's stock price. The alleged conspiracy occurred between March and June 2008. If convicted of all charges, Laikin and the other defendants could face up to 25 years in prison. Eduardo Rodriguez, who is alleged to have enlisted Tim Dougherty—described as a stock promoted—to bid up the stock, faces up to 80 years in prison. Dougherty was paid roughly $40,000 for his work. As of this morning, when National Lampoon's stock had its last trade, the price was just over $0.72.
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Congress has failed to pass legislation regarding so-called "Net Neutrality," and now the issue is again top of mind as Internet providers seeking preferential treatment; network operators considering a tiered approach, and once-staunch defenders beginning to soften their stance on the matter. This time, it appears Google (NSDQ: GOOG), which has been traditional a huge advocate of network equality and openness, is working behind the scenes with major cable and phone companies to get its Internet traffic prioritized, according to documents reviewed by The Wall Street Journal.
In essence, network neutrality means that cable and phone companies must treat all content crossing its lines equally, much like how phone companies today do not prioritize one phone call over another. Many supporters claim that this the secret to the internet's success—if it was divided, only rich companies could participate, and new entrants would never have a chance. For consumers, network operators, like Comcast (NSDQ: CMCSA) or Time Warner (NYSE: TWX), would be able to control content distribution, or even promote their services over another. But now, the counter-argument is starting to pick up steam. Network providers maintain that as internet traffic grows by more than 50 percent annually—by some accounts—content companies should share in the costs.
Any potential tiered deal will be faced with a landslide of criticism, but the WSJ suggests that even some of the most hardcore neutrality fans are fading. For instance, Microsoft (NSDQ: MSFT) and Yahoo (NSDQ: YHOO), which formed a coalition two years ago to protect network neutrality, have quietly left, and are now dealing directly with operators. Microsoft provides software to AT&T's Internet TV service, U-verse, and Yahoo has a DSL partnership with AT&T (NYSE: T). In addition, the WSJ reports that prominent scholars, some of whom have advised President-elect Barack Obama on technology issues, are also softening their views.
The matter will likely become a political one quickly, and will test incoming president Barack Obama on the subject. The WSJ said the issue could regain momentum quickly. It recalled that in approving AT&T's 2006 acquisition of Bell South, the FCC made AT&T agree to shelve plans for a "fast lane," or tiered service, for 30 months; that expires in the middle of next year. Plus, a Democratic lawmaker has already promised new network-neutrality legislation early in 2009, and a new chairman of the FCC could take a stricter position on enforcement. It appears the only thing holding Google back from signing a deal is the government's threat. One major cable operator, who is in talks with Google, told the WSJ: "If we did this, Washington would be on fire."
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