Oooooh, thanks for posting! Very interesting. Since I know NY Times stuff goes away fairly quickly, I'll point out that the article is about a lawsuit centering around whether digital downloads are licenses or sales.
"Four years ago, the producers who discovered Eminem sued his record label, the Universal Music Group, over the way royalties are computed for digital music, which boils down to whether an individual song sold online should be considered a license or a sale. The difference is far from academic because, as with most artists, Eminems contract stipulates that he gets 50 percent of the royalties for a license but only 12 percent for a sale."
....The suit reached its apparent end last week when the Supreme Court refused to hear an appeal, letting stand a lower courts decision that digital music should be treated as a license.
...Many older artists, however, whose contracts predate digital music and have not been renegotiated, stand to profit significantly from the decision.
But for decades, licenses of music to movies, television or other third parties gave artists a 50 percent share, without the same deductions, on the principle that a third party was bearing the relevant costs. "
As per kargatron's arguments, should I not now have the licensing rights to the music I purchase, at least older albums, that I may retrieve whenever and however I want?
Not sure. It's not entirely clear to me from the article whether the implication is in fact that the track is licensed to you or simply that Universal licensed iTunes to make copies and then sell the copies to you, i.e. sell you the resulting file with only file ownership rights.
It's times like this that I love having Westlaw access. Bad Thoughts, the answer to your question is no.
Some relevant quotes from F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010):
Here, the Masters Licensed provision explicitly applies to (1) masters (2) that are licensed to third parties for the manufacture of records or for any other uses, (3) notwithstanding the Record Sold provision. This provision is admittedly broad, but it is not unclear or ambiguous.
There is no dispute that Aftermath was at all relevant times the owner of the copyrights to the Eminem recordings at issue in this case, having obtained those rights through the recording contracts in exchange for specified royalty payments. Pursuant to its agreements with Apple and other third parties, however, Aftermath did not sell anything to the download distributors. The download distributors did not obtain title to the digital files. The ownership of those files remained with Aftermath, Aftermath reserved the right to regain possession of the files at any time, and Aftermath obtained recurring benefits in the form of payments based on the volume of downloads.
Under our case law interpreting and applying the Copyright Act, too, it is well settled that where a copyright owner transfers a copy of copyrighted material, retains title, limits the uses to which the material may be put, and is compensated periodically based on the transferee's exploitation of the material, the transaction is a license. See, e.g., Wall Data Inc. v. Los Angeles County Sheriff's Dep't, 447 F.3d 769, 785 (9th Cir.2006); MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir.1993); United States v. Wise, 550 F.2d 1180, 1190-91 (9th Cir.1977); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 103 (9th Cir.1960).
It is easily gleaned from these sources of federal copyright law that a license is an authorization by the copyright owner to enable another party to engage in behavior that would otherwise be the exclusive right of the copyright owner, but without transferring title in those rights. This permission can be granted for the copyright itself, for the physical media containing the copyrighted work, or for both the copyright and the physical media.
When the facts of this case are viewed through the lens of federal copyright law, it is all the more clear that Aftermath's agreements with the third-party download vendors are licenses to use the Eminem master recordings for specific purposes authorized thereby-i.e., to create and distribute permanent downloads and mastertones-in exchange for periodic payments based on the volume of downloads, without any transfer in title of Aftermath's copyrights to the recordings. Thus, federal copyright law supports and reinforces our conclusion that Aftermath's agreements permitting third parties to use its sound recordings to produce and sell permanent downloads and mastertones are licenses.
After a cursory reading, if there are other contracts with artists using the same definitions as the one at issue here, the Universal spokesperson quoted in the NY Times article is very wrong that this decision doesn't set legal precedent.
Comments
"Four years ago, the producers who discovered Eminem sued his record label, the Universal Music Group, over the way royalties are computed for digital music, which boils down to whether an individual song sold online should be considered a license or a sale. The difference is far from academic because, as with most artists, Eminems contract stipulates that he gets 50 percent of the royalties for a license but only 12 percent for a sale."
....The suit reached its apparent end last week when the Supreme Court refused to hear an appeal, letting stand a lower courts decision that digital music should be treated as a license.
...Many older artists, however, whose contracts predate digital music and have not been renegotiated, stand to profit significantly from the decision.
But for decades, licenses of music to movies, television or other third parties gave artists a 50 percent share, without the same deductions, on the principle that a third party was bearing the relevant costs. "
Some relevant quotes from F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010):
After a cursory reading, if there are other contracts with artists using the same definitions as the one at issue here, the Universal spokesperson quoted in the NY Times article is very wrong that this decision doesn't set legal precedent.
Craig