SoundExchange Shuts Down SWCAST.net
Apr 15, 2011 15:47:24 GMT -6
Post by Timmy on Apr 15, 2011 15:47:24 GMT -6
This sucks so hard!! Here's the email I got this morning as a former customer of SWCAST.net:
Dear Sir or Madam:
This is a courtesy notice provided to you by SoundExchange regarding the current compliance status of your webcasting station. As you may know, SoundExchange, Inc. is the non-profit entity designated by the Copyright Royalty Board to collect royalties owed under the statutory license for the public performance of sound recordings via certain noninteractive digital audio transmissions (e.g., “webcasting”) and the making of certain ephemeral phonorecords. See 17 U.S.C. §§ 112(e), 114; 37 C.F.R. Parts 370, 380 (the “Statutory License”). SoundExchange, in turn, distributes the royalties it collects to the performing artists and copyright owners of such sound recordings.
We write to you regarding your webcasting service that has been made available through SWCast.net (“SWCast”). SWCast purports to be an Internet radio service for small webcasters and a “provider of blanket music licensing and enhancement services” for online radio stations. As part of its services, SWCast offers a so-called “Joint Performance Licensing Program” (“JPL Program”). Through the JPL program, SWCast offers, for a fee, to satisfy all of the reporting and royalty obligations of its webcaster clients whose streaming it hosts and manages (the “Webcaster Clients”). Among the obligations specifically listed are those reporting obligations and royalties paid to rights-holders by webcasters through SoundExchange. SWCast promises to provide “small U.S. Webcasters with the licensing coverage, expertise, and peace of mind they need,” in exchange for monthly payments from its Webcaster Clients.
SWCast, however, does not provide the promised services. Specifically, and despite its claims, SWCast has completely failed to abide by its obligations under the statutory license, did not pay anything to SoundExchange for years, and, as of the date of this letter, has not even attempted to make any payment to SoundExchange for any period after 2005. SWCast has also never provided the reports of use that are clearly required by the statutory license.
SoundExchange has tried for months to rectify this unacceptable situation with SWCast, to no avail. Accordingly, on March 28, 2011, SoundExchange sent a letter to the Internet service provider for SWCast.net informing the ISP that SWCast.net had failed to comply with the terms of the statutory license, was engaging and/or assisting in infringing activity and had violated the ISP’s terms of service. The letter requested that the ISP disable access to the SWCast.net site, in accordance with the provisions of the Digital Millennium Copyright Act and the ISP’s terms of service.
We are writing to you to inform you of SWCast’s failure to comply with the terms of the statutory license. If you wish to rely on the statutory license for your webcasting service going forward, you may decide to submit royalty payments, statements of account and reports of use directly to SoundExchange, or you may decide to rely on a different third party to submit such materials and payments to SoundExchange on your behalf. Please let us know by May 6, 2011 how you intend to proceed. If you wish to submit materials and payments directly to SoundExchange, you may use the rates, forms and other information provided on SoundExchange’s web site at www.soundexchange.com/service-provider/how-do-i-pay/. Please note that SoundExchange does not endorse any particular third-party service and that – should a third-party service fail to meet its obligations on your behalf going forward – you remain ultimately responsible for your own service’s compliance with the terms of the statutory license.
If you have any questions, please review our web site at www.soundexchange.com or feel free to contact our licensing and enforcement department at 202.559.0555 or L&Esoundexchange.com.
* * *
This letter does not constitute a waiver of our members’ right to recover damages incurred by virtue of any unlicensed transmissions or reproductions of copyrighted sound recordings, and such rights as well as claims for other relief are expressly retained. Also, please be advised that SoundExchange does not make any determination as to whether a service is in fact eligible to use the Statutory License. Instead, the applicable authorization for such services to publicly perform sound recordings derives from federal law, and eligibility for such activity is thus a matter of law. Accordingly, SoundExchange’s acceptance of notices of use, payments, statements of account, or reports of use does not express or imply any acknowledgment that a service is in fact eligible for or otherwise in compliance with the requirements of the Statutory License. If you have questions about whether your service is eligible for the Statutory License, you should consult your own legal counsel for advice.
Regards,
Brad Prendergast
Counsel
SoundExchange, Inc.
1121 Fourteenth St. NW, Suite 700
Washington, DC 20005
Tel: 202-559-0550
Fax: 202-640-5883
email: bprendergastsoundexchange.com
Dear Sir or Madam:
This is a courtesy notice provided to you by SoundExchange regarding the current compliance status of your webcasting station. As you may know, SoundExchange, Inc. is the non-profit entity designated by the Copyright Royalty Board to collect royalties owed under the statutory license for the public performance of sound recordings via certain noninteractive digital audio transmissions (e.g., “webcasting”) and the making of certain ephemeral phonorecords. See 17 U.S.C. §§ 112(e), 114; 37 C.F.R. Parts 370, 380 (the “Statutory License”). SoundExchange, in turn, distributes the royalties it collects to the performing artists and copyright owners of such sound recordings.
We write to you regarding your webcasting service that has been made available through SWCast.net (“SWCast”). SWCast purports to be an Internet radio service for small webcasters and a “provider of blanket music licensing and enhancement services” for online radio stations. As part of its services, SWCast offers a so-called “Joint Performance Licensing Program” (“JPL Program”). Through the JPL program, SWCast offers, for a fee, to satisfy all of the reporting and royalty obligations of its webcaster clients whose streaming it hosts and manages (the “Webcaster Clients”). Among the obligations specifically listed are those reporting obligations and royalties paid to rights-holders by webcasters through SoundExchange. SWCast promises to provide “small U.S. Webcasters with the licensing coverage, expertise, and peace of mind they need,” in exchange for monthly payments from its Webcaster Clients.
SWCast, however, does not provide the promised services. Specifically, and despite its claims, SWCast has completely failed to abide by its obligations under the statutory license, did not pay anything to SoundExchange for years, and, as of the date of this letter, has not even attempted to make any payment to SoundExchange for any period after 2005. SWCast has also never provided the reports of use that are clearly required by the statutory license.
SoundExchange has tried for months to rectify this unacceptable situation with SWCast, to no avail. Accordingly, on March 28, 2011, SoundExchange sent a letter to the Internet service provider for SWCast.net informing the ISP that SWCast.net had failed to comply with the terms of the statutory license, was engaging and/or assisting in infringing activity and had violated the ISP’s terms of service. The letter requested that the ISP disable access to the SWCast.net site, in accordance with the provisions of the Digital Millennium Copyright Act and the ISP’s terms of service.
We are writing to you to inform you of SWCast’s failure to comply with the terms of the statutory license. If you wish to rely on the statutory license for your webcasting service going forward, you may decide to submit royalty payments, statements of account and reports of use directly to SoundExchange, or you may decide to rely on a different third party to submit such materials and payments to SoundExchange on your behalf. Please let us know by May 6, 2011 how you intend to proceed. If you wish to submit materials and payments directly to SoundExchange, you may use the rates, forms and other information provided on SoundExchange’s web site at www.soundexchange.com/service-provider/how-do-i-pay/. Please note that SoundExchange does not endorse any particular third-party service and that – should a third-party service fail to meet its obligations on your behalf going forward – you remain ultimately responsible for your own service’s compliance with the terms of the statutory license.
If you have any questions, please review our web site at www.soundexchange.com or feel free to contact our licensing and enforcement department at 202.559.0555 or L&Esoundexchange.com.
* * *
This letter does not constitute a waiver of our members’ right to recover damages incurred by virtue of any unlicensed transmissions or reproductions of copyrighted sound recordings, and such rights as well as claims for other relief are expressly retained. Also, please be advised that SoundExchange does not make any determination as to whether a service is in fact eligible to use the Statutory License. Instead, the applicable authorization for such services to publicly perform sound recordings derives from federal law, and eligibility for such activity is thus a matter of law. Accordingly, SoundExchange’s acceptance of notices of use, payments, statements of account, or reports of use does not express or imply any acknowledgment that a service is in fact eligible for or otherwise in compliance with the requirements of the Statutory License. If you have questions about whether your service is eligible for the Statutory License, you should consult your own legal counsel for advice.
Regards,
Brad Prendergast
Counsel
SoundExchange, Inc.
1121 Fourteenth St. NW, Suite 700
Washington, DC 20005
Tel: 202-559-0550
Fax: 202-640-5883
email: bprendergastsoundexchange.com