throughout today, it came to light that
SW Cast
had been shut down by
Sound exchange
but their’s a lot of wining that this is not valid.
Firstly, have the
original
post that sparked this
> SWCast shut down >
Posted on April 19, 2011 by David Oxenford
SoundExchange Claims Credit for Shutting Down Webcaster Who Was Not Paying Royalties
SoundExchange claims on its website that webcaster SWCast.net was shut down when SoundExchange complained to its ISP that the service was not paying royalties for the use of the music played by the site. SWCast was an aggregator of webcast channels created by other individuals, who paid the company – allegedly for the streaming and for the royalties that were due for that streaming. According to the SoundExchange press release, the webcaster was shut down when SoundExchange “sent a letter requesting that the hosting ISP disable access to the SWCast site.” SoundExchange’s statement says that, despite repeated attempts to engage the webcaster, SWCast neither paid royalties nor filed reports of use for the songs streamed by the service, leading to SoundExchange’s action. As far as we know, this is the first time that SoundExchange has taken such an action.
How did this work? While we have not seen the letter that SoundExchange sent to the ISP, we can assume that it alleged that SWCast was infringing on copyrighted materials by not paying the required royalties. ISPs have a safe harbor under the Digital Millennium Copyright Act, protecting them from liability for the infringement of users of their services, if the ISP does not encourage the infringement, registers an agent with the Copyright Office, and agrees to take down infringing content when properly notified by a copyright holder (see our post here). We can only assume that SoundExchange or the copyright holders themselves notified the ISP that the material streamed by this webcaster was infringing as no royalties were being paid and, to protect itself, the ISP blocked access to the site.
Does this action reflect a new aggressiveness on the part of SoundExchange? We have noted before that, from time to time, there seems to be a flurry of collection activity by SoundExchange. We have heard from several streaming companies that they have recently received notices from SoundExchange inquiring about various compliance issues. SoundExchange has been staffing up, and they have an attorney on staff whose principal job is enforcement. Perhaps, with a new President, and with the last webcasting royalty proceeding done but for the appeals, this is a time when SoundExchange feels comfortable enough to act to ensure compliance with its royalty requirements.
We’ve summarized the Internet radio royalty rates recently, and reminded webcasters not to forget their minimum fee payments and yearly election requirements. If you are streaming, this might be a good time to check your royalty compliance to make sure that you are doing all that is expected by SoundExchange. They may be watching!
so I headed over to the linked in portion of the sound exchange website, and found
this
here’s that article, as well.
Public notice of disabling of access to SWcast services
April 18th
In recent days, SoundExchange requested that access to Internet radio service SWCast.net be disabled by the hosting ISP in accordance with the provisions of the Digital Millennium Copyright Act and the ISP’s terms of service.
While regrettable, this step was necessary given SWCast’s repeated claims that it is a “provider of blanket music licensing and enhancement services” for online radio stations. SWCast collected monthly fees from webcasters using its service, in exchange for (it claimed) satisfying all of the reporting and royalty obligations of its webcaster clients. Among the obligations specifically listed on its site are those reporting obligations and royalties paid to rights-holders by webcasters through SoundExchange.
SWCast, however, does not provide the promised services. Specifically, and despite its claims, SWCast has 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 repeatedly reached out to SWCast to seek its compliance, to no avail. Accordingly, SoundExchange sent a letter requesting that the hosting ISP disable access to the SWCast site. Individual webcasters who had been using SWCast’s services are free to rely on the statutory license going forward, either by submitting the necessary materials and payments to SoundExchange directly, or relying on a different third party service to submit such materials and payments on their behalf. Learn more about SoundExchange’s Licensing 101.
Thousands of webcasters have been able to thrive and to provide valuable services to their listeners while operating legally under the statutory license. It’s unfair for SWCast or anyone else to use artists’ work without compensating them, and it’s unfair to the webcasters who believed they were abiding by the law.
We’re sorry that SWCast chose not to comply with the law, and we hope SWCast fans will find another (legal) provider by which to enjoy the tracks we all love. Meanwhile, we’ll be holding down the fort here, making sure that artists and copyright holders see returns on their hard work, and have the means to continue creating new music.
If you have any questions, please review www.soundexchange.com or feel free to contact our licensing and enforcement department at 202.559.0555 or L&E@soundexchange.com.
so as a member of staff on both
JJRN
and
Mojo Radio
and a concerned listener, I contacted the phone number listed, and spoke with Mandi Nash of the licensing and enforcement department.
I determined, during that conversation that what I was reading was true and accurate, and as further proof, she sent me what all stations were receiving upon request.
________________________________
From: Mandi Nash [mailto:anash@SOUNDEXCHANGE.COM]
Sent: Monday, April 25, 2011 3:43 PM
To: shane@shaned.net
Subject: Notice of Violation of Terms of Statutory License by SWCast
Re: Notice of Violation of Terms of Statutory License by SWCast
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&E@soundexchange.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: bprendergast@soundexchange.com
In other words, SW cast is dead. and you’ll need to find an alternate licensing source before may 6, 2011.
Feel free to comment as either a station owner, a listener, or what have you. It’ll be interesting to see your views.
