Gregory Becker, a Nashville-based BMI songwriter asks the following:

I am interested in feedback regarding the CD Baby Contract between CD Baby and artists that sign the Contract for Digital Distribution.

Now, it is not my intention with this thread to rehash any of the issues brought up in the RIAA thread... I'm really only looking for concise input regarding the language of the contract in one specific area.

I know there are several artists here at AL that have music available on the CD Baby site by way of CD's for sale. While this is a totally different thing (digital downloads versus actual CD's), the new service offered by CD Baby expands the potential audience and, consequently, potential buyers.

This is a Free Service with a binding Contract. Just to clear that up before I proceed with my actual question; Derek Sivers is reimbursing the original $40 sign-up fee (approximately $200,000 total) to all the people that signed on several months ago and has made this Digital Download venture free of charge.

OK
...you have to read the Contract.

In the Contract (Section 1 c) there is language to describe the Term of the Contract and the Artists (Rights Holder) ability to opt out of the Contract with a written notice.

Easy enough.

In Section 3 b, there is language that puts this ability to terminate the contract into question.

The assumed scenario is this:
Joe Artist signs the Contract and Assigns the Rights for Digital Downloads to Song Hung Blue .
Joe decides to Terminate the Contract because he wants to re-Assign the Rights for Digital Downloads to Artist Launch.

The Question:
Can he do that

Here's a link to the Contract...
http://cdbaby.net/dd?f=6

Here's the specific sentence in Section 3 b:
Quote:
"RIGHTS HOLDER shall not withdraw RIGHTS HOLDER Content if such RIGHTS HOLDER Content is being made available or is intended to be made available by RIGHTS HOLDER to any other provider of digital downloads, streams or burns."

I've asked this question of Derek Sivers and would expect a candid reply:

Here's my question to Mr. Sivers (sent via email after I received his email) on the Download issue/contract:
Quote:
"Am I correct in assuming the agreement is Exclusive between CD Baby and the Rights Holder for the specified Term (as stated in 1 c.)and that the Rights Holder can Not terminate the agreement if it is the intention of the Rights Holder to assign said Rights to a competing Digital Download Service?"

I would like some comments, but again, this isn't a conspiracy thread... please, just factually candid replies on the subject.

Cavalier then responds to Gregory with these question?

WOW someone please explain!!!

Does that mean that if someone comes along with a better deal tomorow you are screwd?

Does it mean that if you are not happy with how your music is being distributed your screwed?

Does it mean that if Napester and all the other systems come along and allow each person to do a direct deal for less your screwed?

Does it basicaly mean that you are signing a lifetime non cancelable contract that permanently gives your music rights to someone else so that you no longer controll all the distribution.

hello? anybody?

Gregory then responds back with:

Quote:
"Does it basicaly mean that you are signing a lifetime non cancelable contract that permanently gives your music rights to someone else so that you no longer controll all the distribution."

Paul, I think so, but I'm not 100% certain. The Contract is referred to in the earlier post (above). But, read these excerpts and comments and tell me if I'm missing anything or coming to wrong conclusions.

These are from the CD Baby "Agreement"::::

Quote:
From 1c (Definitions):
"Term" means the period beginning on the Effective Date of this Agreement and ending on the first day of the second calendar quarter following the third anniversary of the Effective Date, after which such Term shall automatically renew for successive one-year periods."

I think this says CD Baby can renew the Contract for as long as they want. Which, I suppose, is relative to the profitability of the artists content.

Quote:
From 2a (Authorization):
"Subject to the terms of this Agreement, RIGHTS HOLDER
hereby appoints CD BABY as RIGHTS HOLDER's exclusive
authorized representative for the sale and other distribution of
Digital Masters"

This says what it says... it's an exclusive agreement. The music assigned to CD Baby can not be assigned to another distributor's agent.

Quote:
From 2b:
"Nothing herein shall obligate CD BABY or any Distributor to
actually exercise any rights granted under this Agreement."

CD Baby can sit on an Artists music and do nothing relative to support, distribution, promotion, etc. (see 6b, below). What isn't clear is whether or not this constitutes a breach of the Agreement on their part... in other words, can an Artist remove their material for non-performance or is the music locked up no matter what?

Quote:
From 3b (RIGHTS HOLDER Obligations):
"RIGHTS HOLDER shall not withdraw RIGHTS HOLDER Content if such RIGHTS HOLDER Content is being made
available or is intended to be made available by RIGHTS HOLDER to any other provider of digital downloads, streams or burns."

This is that statement that seems to be in conflict with the Artists Right to Terminate the Agreement. I think it refers to content previously included in the Agreement having to stay at CD Baby, while the Artist would be free to take newer or excluded content elsewhere.

Quote:
From 4a(Payment):
"CD BABY shall pay RIGHTS HOLDER ninety-one percent (91%) of the amount that CD BABY receives from Distributors for the sale or other use of RIGHTS HOLDER's Digital Masters...
...Such payment shall constitute full consideration for all rights granted and obligations undertaken by RIGHTS HOLDER hereunder."

I guess if an Artist receives some money then CD Baby has secured the exclusive Right to continue to distribute.

Quote:
From 6b (Names and Likenesses; Promotional Use and Opportunities):
"CD BABY and any of its Distributors shall have the unrestricted right to market, promote and advertise the Digital Masters available for purchase as it determines in its discretion. Without limiting the foregoing, CD BABY and any of its Distributors shall have the right to determine which sound recordings, irrespective of any particular artist, record company or label affiliation, would best further their commercial purposes, and to promote such sound recordings more than others."

This says what it says. They retain the unrestricted Right without obligation to perform.

Quote:
From 10d (Additional Representations and Warranties of the Parties):
"Each party represents and warrants that it shall not act in any manner which conflicts or interferes with any existing commitment or obligation of such party, and that no agreement previously entered into by such party will interfere with such party's performance of its obligations under this Agreement."

This sounds like once the Agreement is entered into with CD Baby that all other existing agreements with other distributors are null and void... they must be... 2a (above) says the Agreement with CD Baby is exclusive.

Silverfox responds with this:

Hmmm... In this world we all know there is no such thing as "free".

So why would CD baby spend all that time and money -- including having employees working round the clock encoding songs on 24-hour shifts -- only to return the fees?

Gregory, I think perhaps you are onto something here but I can't quite put my finger on it. The ISRC is to track royalty payments -- yes, but the code also identifies the "label" as the "registrant" code (this used to be the 1st owner code). According to RIAA:

Quote:
"The first owner of the rights to the track usually assigns an ISRC. However this is not always the case. If the first owner of the track did not assign the ISRC, the the current owner should assign it. Once assigned, the ISRC identifies the track throughout its life..."

In other words it is assumed that whomever placed the ISRC code OWNS THE TRACK. So if CD Baby has been inserting all the ISRC codes using its own assigned identifier then ALL OF THE TRACKS ENCODED that was could be "assumed" to be owned by CD Baby (and not necessary the artist). There is an obvious interplay between all of these parts (the contract, the ISRC, and the digital distribution - much like a major record label) that I do not fully understand. But based upon the information you have brought forward I would believe that it is important to be vigilant and protect your own copyrights.

For example, I wonder what happens if you sell some of your catalog to a music publisher and some of the catalog contains songs that have been distributed through the CD Baby contract. Or, what happens say if a Television Series wants to use one of your recordings? Do they, then ned to have to go through CD Baby if CD Baby has encoded your music with their code?

Cavalier Responds:

CD Baby retains ALL THE RIGHTS to distribution.

That means 9% of everything you EVER DO with your music.

Even if someone else is also charging you for services.

Complete thread at:
http://artistlaunch.com/forum/viewtopic.php?t=833


THE POINT IS: WITH ALL THE JOCKYING GOING ON BACK AND FORTH...Be very afraid and very careful what you agree to at this point. There is obviously a RIAA-controlled NAPSTER vs. ITUNES war engaging and also CDBaby is somehow involved...

I knew these bastards were screwing their artists over! I tried to say it but was shot down.

undeath -- I'm still not sure what's going on with CDBaby.

Moses Avalon brought this up a while back and Derek Stivers offered some legitimate responses that addressed all the issues Avalon raised, IMHO.

But the ISRC issue was never raised...

I'm probably too concerned, but I'm watching out for artists who might not know what could possibly go down in the future. Revelaria's music is on there, and I'd like to see them go down a smooth path, not a rough one.

"Term" means the period beginning on the Effective Date of this Agreement and ending on the first day of the second calendar quarter following the third anniversary of the Effective Date, after which such Term shall automatically renew for successive one-year periods. RIGHTS HOLDER may terminate this Agreement at any time by providing CD BABY with thirty (30) days' written notice of RIGHTS HOLDER's intention to terminate. " What a confusing termination date arrangement, what's wrong with 180 days, or one calendar year...what's all this crap about "... first day of the second calendar quarter following the third anniversary of the Effective Date, after which such Term shall automatically renew for successive one-year periods"...why didn't they just throw in a couple of New Moons, and " not counting the days when Stargate runs reruns twice in one day on SciFi channel"

That language right there would make one eyebrow rise on me...

And how about this attempt to be cutesy pie...""Territory" means the Universe"...come on, this is a binding legal contract..not a secret club for goodness sake...

Section 3b is just a mess plain and simple..wordy, overbroad, unduly vague in some ways...

THE WORST PART IS THIS...
"Modification, Termination and Effect of Termination.
CD BABY reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement. Notice of any amendments and/or modifications shall be sent to you by email prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement.
Either party shall have the right to terminate this Agreement prior to the expiration of the Term in the event that the other party breaches any material representation, obligation or covenant contained herein, unless such breach is cured prospectively, no later than thirty (30) days from the date of receipt of written notice of such breach, or if not able to be so cured, then resolved to the other party's satisfaction, not to be unreasonably withheld."

This part.."CD BABY reserves the right, in its sole discretion, to change, modify, add or remove all or part of this Agreement. " is really very concerning, because a written contract cannot be changed and modified at the discretion of one party in the manner specified.

I would of course defer to Leflaw, but I don't thnk that would survive a court challenge. It breaks the "meeting of the minds" element of contract law.

I don't mean to be mean, and perhaps the guy at CD Baby is nice and all...but whoever the hell wrote that contract needs to retake contract law 101. It is horrible. I could write a better contract when I was in second grade (not kidding...).

I would stay the hell away from anyone trying to get you to agree to that contract.

If you click on it, there is the presumption of agreement, but try to enforce that in a court of law....the 2 yr old may have clicked it when I went to the bathroom...lol....

Gosh what a mess...
Geeeeeez
~Code

ISRC codes allegedly made it easier to audit for royalties...hmmm..and the RIAA doesn't want this ..right?

A quick wander over to CDbaby reveals this statement...

"there can't be more than one distributor bringing the same music to the same store so we have to be the exclusive distributor of your digital music to these services (only) during the contract
that doesn't prevent you from doing anything else with your music! only from signing another digital distribution deal."


My take on that is only during the contract, of course this is not necessarily in the actual contract.

The more I thought about this clause about unilaterally changing the contract AFTER it's been signed..the more it bugged me. Surely this is not an actual contract, tell me it's a joke, please!

Basically, here' s what the contract is saying..."Here, I have some stuff written, you just sign it, and then, I reserve the right to just change it completely at my discretion and make the new terms be anything I want."

WHO in their RIGHT MIND, would EVER sign such a think.
Contracts have three essential elements..
1) Offer
2) Acceptance
and 3) Consideration, but, an essential element also, is the "meeting of the minds", which means all parties understand fully, and agree fully to all stipulations of the contract. If you could just have the maker of the contract change it willy nilly after it is signed, the world of legal affairs would be in a worse mess than it already is.

You can't just change a contract unilaterally after it is executed..that's nonsense!

Now, I KNOW it says
"Notice of any amendments and/or modifications shall be sent to you by email prior to their effective date. In the event that you do not consent to any such amendments and/or modifications, your sole recourse shall be to terminate this Agreement. " . . .
but that really is an add on..because
in reality, a contract is an agreement.
You can't go changing it and THEN writing the other party and e-mail and telling them that you changed the contract and if they don't like it...your only recourse is to terminate it...

I say that because they already set up termination conditions, and now they are changing them in the same contract...

Did a layperson write this? It looks like they just kinda stuck this thing together making things up as they went along.

Now, could I leave this without touching on 11. (i) ? I think NOT.
It says :
"Force Majeure. For the purposes of this Agreement, "Force Majeure" shall mean any event which a party hereto could not foresee, such as fire, flood, acts of God or public enemy, Internet failures, earthquakes, governmental or court order, national emergency, strikes or labor disputes, the effect of which it could not reasonably prevent or predict and which renders impossible or impractical the performance of contractual obligations either totally or in part. The party invoking a Force Majeure shall notify the other party within three (3) business days of its occurrence by accurately describing all the circumstances of the situation involved and its effect upon the performance of its contractual obligations. "

They actual mention"public enemy"...
Hmm..maybe Chuck D should look at this contract..anyway..
"Force Majeure. For the purposes of this Agreement, "Force Majeure" shall mean any event which a party hereto could not foresee, such as fire, flood, acts of God or public enemy, Internet failures, earthquakes, governmental or court order, national emergency, strikes or labor disputes,.."

But then it stipulates that the other party has to "The party invoking a Force Majeure shall notify the other party within three (3) business days of its occurrence by accurately describing all the circumstances of the situation involved and its effect upon the performance of its contractual obligations." Now, who's to say that if a real "force majeure" happened...like earthquakes, "public enemy", etc. were to happen, one party may be laid up unconscious in a hospital for more than three business days...and if so, a breach of contract would attach....

Man oh man...this is a mess in my humble opinion....

I'm not going to be the defender of CD Baby, but the unilateral change clause and the term clause were addressed by Suzette Becker at the link below. If you want an indepth analysis of the contract, I suggest reading the entire thread:

Unilateral change:

"Clearly I am not crazy about the fact that CDBABY can modify the agreement at any time, but having drafted Internet music contracts myself I know that this is a very desirable right for an Internet music site to have as this area of music business practices and the law is in such a state of flux that the contract needs to be flexible. You have to have a certain amount of trust in the business practices of CDBABY. (If you don’t have that basic sense of trust then just click the “No Thanks” button below and choose not to do business with them.) If you don’t like the changes CDBABY makes, you can terminate the contract by giving them thirty (30) days written notice. I would like to see the termination procedure outlined more clearly in the Termination section and not just located in the Definition of Term."

Term:

"This is too complicated to figure out without mapping calendar software, if there is such a thing!!!! I guess CD Baby is trying to achieve some uniformity of the Term periods for these agreements for their accounting and I can’t blame them. What I think it means is the Term will be three years plus the time it takes to get from the calendar date you click on “I agree” to the first day of April. So….…if I click on “I agree” on August 15, 2003, the Term will end on April 1, 2007. Then it will renew from April through March of each year."

http://velvetrope.starpolish.com/ubbthreads/showflat.php?Cat=&Board=UBB1&Number=358075&Forum=All_Forums&Words=Suby&Match=Username&Searchpage=0&Limit=25&Old=allposts&Main=355973&Search=true#Post358075

Code - God or public enemy is standard force majeure language. Regarding 3 business days, I'm pretty sure if the contracting party was incapacitated then that would be a defense to a breach claim.

You know, this is complete and utter bullshit. The entire range of issues concerning the contract have been thoroughly, totally and completely hashed to death and resolved at the Velvet Rope *months* ago:

http://velvetrope.com/ubbthreads/showflat.php?Cat=&Board=UBB1&Number=355973&page=0&view=collapsed&sb=5&o=&fpart=1

In case that free thread with free, real-world attorney advice isn't good enough, I humbly suggest that you *don't* participate until you pay a lawyer out of your own pocket for advice. Derek has a long term track record for being very up-front and honest with Indie artists, unlike people like Moses Avalon. If Gregory Becker wants "feedback regarding the CD Baby Contract between CD Baby and artists that sign the Contract for Digital Distribution," posting it to a web board is one way to do it, but if he's a professional, he needs to be talking to a lawyer. Frankly, I smell something fishy here, and it's not coming from CD Baby.

If you're concerned about getting screwed, don't participate until your attorney advises you to. If your lawyer advises you not to participate, then don't and bite the bullet and sell downloads directly from your site like Toby Slater does at http://www.tobyslater.com. For the love of God, shit or get off the pot.

You know if any musician writes and wants to know whats up with this, they should take a closer look at what the labels give them for contracts ,I bet not very many of them actually sit and look over their contracts to begin with and wonder what they should really be getting and how the consumer feels about the whole mess the RIAA is putting everybody through not to mention what happens when people stop buying and theres no money how do they get more money Hmmmmmmm ?????????after another the artist really need to speak up more.

Changing contract terms after execution happens all the time. See your credit card agreement.

That is not an endorsement of such contracts, just a fact.

Yo fatchuck
--------------------------------------------------------------------------
You know, this is complete and utter bullshit. The entire range of issues concerning the contract have been thoroughly, totally and completely hashed to death and resolved at the Velvet Rope *months* ago:
---------------------------------------------------------------------------

First time I seen it,I may be slow but I suspect there are a few others who have not heard of this before, hell I might take advantage of the deal once I checked it out with my lawer, or I might just sell direct as you mentioned, either way it ain't bullshit coz I know more now than I did before.

never would argue with Lef ..but,
that notion about unilateral changing of credit card deal is something I fought with one of my credit cards and won over...they tried to start charging an annual fee..and I cried "deceptive trade practices" and offered to sue them in Texas under Chapter 17 of the Business and Commerce Code...they relented and I got my money back and called them back immediately after I was refunded and canceled the card.
~Code

mroop...but why even make it such that one would have to initiate any defense of breach...that contract is a load of crap and poorly worded...plain and simple...

Mroop, brother, I know YOU would never write a contract that crappy, and I know Leflaw could write a better contract with one eye closed and one hand behind his back...

PS...I also filed a complaint with the FTC and Attorney General of Texas against the credit card company for good measure after I kicked their butt....

FWIW, the Velvet Rope Thread was in August and this is now November? Suzette Becker was far from being 100% impressed with the contract and I have heard that a lot of changes have occured between those posts and today...

I don't believe Gregory Becker (i Suspect no relation) was up to anything more than trying to honestly find some sanswers. The problem that concerns me gets back to the underlying issues involving encoding of ISRC by CDBaby. Why? RIAA says that the codes are usually placed there by the OWNERS of the rights to a track. So if CDBaby has been inserting its own code the impication is that THEY own the track -- its the digital fingerprint. Our code at DreamQuest is DQ1, for example. If we encode that on a track on a CD the theory is that it will prevent piracy and track royalties. Anytime the DQ1 code is caught by a distributer the RIAA or the IFPB will look it up and see it is a work owned by DreamQuest Records and subsequently (in theory) royalty payments will be generated to Dreamquest to be distributed to the contracte4d holder of the copyright.

So why would CD Baby reimburse $200,000 of DRM fees involving the ISRC? Well, if you read their material its because they have been inserting CDBaby codes on all the songs in their archives rather than YOUR codes or my codes or Dreamquest codes. This is just my opinion but I think they have been caught with their fingers in the cookie jar. Becaue I do not believe the submitting artists have been given full disclosure as to the importance of the digital fingerprint and the purpose of ISRC (International Standard Recording Code).

and mroop...i did know about Force Majeure lingo...the public enemy was supposed to be a joke...guess it didn't get taken that way...but for those wanting more info on Force Majeure..
Force Majeure literally means "greater force". These clauses excuse a party from liability if some unforseen event beyond the control of that party prevents it from performing its obligations under the contract. Typically, force majeure clauses cover natural disasters or other "Acts of God", war, or the failure of third parties--such as suppliers and subcontractors--to perform their obligations to the contracting party. It is important to remember that force majeure clauses are intended to excuse a party only if the failure to perform could not be avoided by the exercise of due care by that party.

Typical Force Majeure language/clauses:
"Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected"
and"Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused (I) by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused."

I maintain all previous objections without reservation to the contract under discussion.

As for unilateral changing of contracts..
http://www.wallacejordan.com/decisions/Opinions2001/1990244.htm
"General principles of contract law prohibit either party to a contract from making unilateral alterations to the contract. It is elementary contract law that the minds of the parties must meet as to a proposed modification. See 17A C.J.S. Contracts § 375 pp. 425-28 (1963). In this present case, these contract principles bar the bank from unilaterally changing basic contract provisions. "

Code -- In every contract I have seen that deals with the entertainment business, the territory has been either the world or the universe.

We certainly don't want Venusian record companies selling Earth CDs in Uranus, do we?

lol...I just think it's patently silly George.
I keep hearing people making comments about things being done a certain way....that doesn't mean they make sense or should be done that way...Thursday will mark 51 years I have been an iconoclast...many, many times I have gone against the "way it is always done"...I have never lost ONE legal confrontation...and have gone against some big corporations....

It's silly to put the Universe because it is vague, overbroad, and silly.
The universe is not a finite geographic boundary, and this makes the language vague, and from dealing withe law, I know being overbroad and vague is always a challenged matter....PLUS...
you always need to definite the important terms in a lawsuit or contract...he doesn't define what the word universe means...for example, the word CATHOLIC literally means "universal"....
I would accept EARTH...because we know where the earth is, we can define it geographically...I don't know where the friggin' universe is...that's retarded...
why not start talking about defining a contract in terms of eons and such nonsense...sorry...but I have to be a contrarian on this against mroop and everyone else..and point out that this emperor HAS NO CLOTHES
and, to be honest, after listening to some of the "artists" that the RIAA would have sending pulsed airwaves in my ear canals...gimme dem blues guys from Pluto, or those rockers from Saturn...they can play rings around dem Earthers

I'm not the only one that thinks this universe designation is nutty..

From an interview with Chuck D
http://news.com.com/2100-1023-222765.html?legacy=cnet

"Where do you envision this technology taking the music industry down the road?
More of the artists having joint ventures, challenging the territory lines in contracts. For example, looking at the territory lines and saying, 'What constitutes the universe and the world?' And the thing about it is most artists' contracts say that the territory that they control is the world and the universe. I'm like, that's crazy. "

http://bandreg.com/legal/r_contract3.html
"I know that we lawyers are a cautious bunch, but I am always amused by record contracts which go further, and define the territory of their contracts as being not only the world but the universe, the solar system and any other places which man may visit. "Mr Spock, we're picking up signs of intelligent life down there on Gamma Delta VII - I think it's a recording studio..."

http://www.voncello.com/musicians.htm
"One prominent internet distributor offers a contract with the following sentence: "You grant us throughout the territory and during the sales period the non-exclusive right to sell...your recordings". That sounds fine, doesn't it? I thought so too...until my lawyer pointed out that they define "sales period" as forever and "territory" as the universe. In other words, they want the right to sell your CD for the rest of your life and beyond. "
"Clause 1: Transference of ownership
You own nothing, ever!
What the clause says:
"You grant and convey to Label, and confirm that Label shall be the exclusive, perpetual owner of all Masters throughout the universe, including without limitation, all copyrights therein as a "work made for hire". Label and all parties authorized by Label shall have the exclusive right to exploit the Masters, and to use your name, voice and likeness in connection with such exploitation. The right to use your name, voice and likeness shall be exclusive during the term and non-exclusive thereafter."

What the clause means:
Unless Congress and/or the courts speak up and say otherwise, you have no ownership or control whatsoever in the sound recording copyright created under the contract."



"d. "Territory" means the Universe.

Worldwide, remember it's the Internet. In spite of that I have seen "geographical" limitations based on language. While this works for Japanese, it is harder to make it work in English."
-----
From Suzette Becker's analysis of the contract...see "worldwide" is NOT the same as universe.
http://www.banduniverse.com/Article.cfm?ID=88&Type=Article

I rest my case your Honor. Any instrument thus constructed is inherently flawed, overbroad,vague, and should be ruled null and void.

So what do u think guys?

CDBaby is fishy? Should artists continue selling CD's with em?

I dont necessarily follow everything from ArtistsLaunch not that theyre in conspiracy with the RIAA or anything but b/c theyre in competition with CDBaby.

But I AM concerned about CDBaby's involvement with this fishy contract involving the digital distribution deal.

Any thoughts?

So if the RIAA designates the Universe as their territory then when the aliens come to Earth because they received some radio or television signal that escaped out into the universe then the first thing the RIAA will do is sue them?

Maybe we'll be lucky and the aliens will be pissed and give Cary-Sue an anal probe. Then he will know how America feels.

If you want to retain the rights to distribute your music on Mars then don't sign the contract.

Code - your use of the terms overbroad and vague are words that are typically used to describe statutes that are unconstitutional. There is nothing inherently wrong with using the word "Universe" in a contract. I don't know why you think it is a problem to use "Universe" instead of "Worldwide" - it's not a problem. While you might think one word is a better choice than the other, in the end it doesn't really matter. I'm not sure how you are reading Suzette's analysis but what she is saying is that universe is the same as worldwide.

Let me also add that your citations on unilateral changes to contracts are not on point. You need to find something that says that contractual provisions allowing for unilateral changes are not enforceable.

"but why even make it such that one would have to initiate any defense of breach"

I'm not sure what your point is. Are you objecting to the force majeure clause in total or do you just think that 3 business days is too short of a period of time?

Here's a reply from Derek Sivers of CDBaby.Com...thought it was only fair on his behalf:


Hey. Derek Sivers from CD Baby here.

Silverfox said:

Quote:

So why would CD baby spend all that time and money -- including having employees working round the clock encoding songs on 24-hour shifts -- only to return the fees?



We encode the audio round-the-clock ANYWAY for the cdbaby.com sound clips. The digital distribution program just co-incided with a re-ripping and re-digitizing of our entire catalog we were doing anyway.

And I explained my reason for returning the signup fees VERY clearly in both my original post AND my reply to myself at the bottom of this page: (make sure you see my bottom post, too)
http://cdbaby.org/stories/03/11/09/9619906.html

Quote:

The ISRC is to track royalty payments -- yes, but the code also identifies the "label" as the


"registrant" code (this used to be the 1st owner code). In other words it is assumed that whomever placed the ISRC code OWNS THE TRACK.



Yes which is why I went directly to the IFPI in London, (the creators of the ISRC), telling them our predicament. It's described in detail, here: http://cdbaby.org/isrc

We register all the codes in their database and the RIAA database as belonging to the artist/ label, NOT CD Baby. It was under these conditions that the IFPI and RIAA said it was OK for us to assign the ISRC codes to artists.

So - sorry I didn't explain this clearer on the site. I wasn't expecting to be accused of being out to screw millions of artists and stealing their music.


Look - I can see that cavalierhome and Silverfox are concerned. I know that my un-greedy ways seem suspicious but if you knew me - or even read my posts at the URL above - it makes perfect sense.

I'm not a typical businessman. I never even meant to start a business. CD Baby is an accidental outcome of a hobby I started for me and some friends, while I was making my full-time living making music.

CD Baby has had a VERY profitable 5 years. Things are going better than I ever expected. I often give a chunk of profits to charity. When Digital Distribution didn't turn out as I expected so far this year, I really didn't mind giving $200,000 back to the artists. It's only a percent of our profits this year anyway. Better it go back to the musicians than to us. We're doing fine and don't need the money.

You can keep looking for something dark and evil about this, but it's just not there.

I know the terms of the contract seem strange, but we were only asking for the terms expected by the digital retailers. That's why we put the 30-day cancellation clause. We even ENCOURAGE people to cancel if they have ANY reservations about this, as you can see in my August update, here: http:// cdbaby.org/stories/03/08/20/7585048.html

(Oh and as for that "competitor" sentence in the contract, I agree that's lame! The lawyer put that in there the night before we launched, and I didn't notice it since I was busy with other things. Don't worry about that. It's ridiculous anyway. You can drop out of CD Baby Digital Distribution any time then "later" (1 minute later?) decide to go with a competitor.)

I'm sorry if you guys think I'm some kind of competitor to AL. I don't see it that way at all. We're just a record store. A warehouse+mailorder+shipping record store. No downloads. Nothing that interferes with AL, I don't think. (Hell if you guys get that digital download store going, we'd love to set you up with 9000 more artists.)

--
Derek Sivers, CD Baby
email: derek@cdbaby.com
http://www.cdbaby.com

Yeah, he went to the RIAA and asked. What about the indie artists on there? He doesn't seem to answer that one.

"Code - your use of the terms overbroad and vague are words that are typically used to describe statutes that are unconstitutional. "

Mroop-my experience is that "vague and overbroad" are most commonly used as objections to discovery requests in common trials, or in general, to non-specific language in legal matters in general. Your assertion that these terms are used in challenges to constitutionality is not supported by the facts as I know them. I also noted you avoided commented on the other comments in the same post as the words from Suzette..but, I'm not surprised, since those comments supported my assertion that the language is silly. I am saying that "worldwide" is NOT synonymous with universal, since scientific definitons of the word "universal" would include many worlds.

Thank you for your learned response.

I want to put a period on my participation on this topic, because I've wasted too much time on this.

I'll synopsize my points, and if people agree...fine. If they do not...fine.
The points are as follows:

1) It is my opinion (and I am the final arbiter and trier of fact in what my opinion is ) that use of the term "universe" as defining the Territory in this contract, is silly and unnecessary, and is silly and unnecessary in any such contract, no matter if it is a standard in the industry. I am not saying that the term "Universe" is never used in defining territory in entertainment contracts. It is. I am saying it is silly, since we have no outposts on other planets , the rights on which need to be protected. I have posted comments from entertainers (Chuck D) and from entertainment law websites (I'm not talking about Suzette's analysis) which agree with my position that using the term "universe" is silly. Oddly enough, I would not object to the term "universal" or "global".

2. A contract involves a "meeting of the minds" and typical, there are very specific terms of agreement. A unilateral change to a contract without the agreement of the other party is unenforceable . The other party MUST agree to the modifications.
http://www.wallacejordan.com/decisions/Opinio ns2001/1990244.htm

"General principles of contract law prohibit either party to a contract from making unilateral alterations to the contract. It is elementary contract law that the minds of the parties must meet as to a proposed modification. See 17A C.J.S. Contracts § 375 pp. 425-28 (1963). In this present case, these contract principles bar the bank from unilaterally changing basic contract provisions. "

3. If you were able to count the number of times "vague and overbroad" are used in legal matters, I submit that the most common, i.e. most frequent usage, is in response to the discovery requests, such as interrogatories, when the responder wishes to object to the request or question.

4. I think the termination period definition is just silly. I know there is probably a good reason, but my gosh, just READ it...it ALMOST sounds like..
" the termination period of this contract shall be the 100.2 days judged using the Gregorian calendar, plus, two days after the second Thursday of any month in which the President sneezes on into his right (R) hand, not his left, of alternate leap years, not counting those days containing an "a" in their name"....

It is my opinion it is a poorly written contract and guess who decides what my opinion is (see earlier reference)...yup, me .

And that puts a point on this excessive use of words on my part.
~CW

Main Entry: 1world·wide
Pronunciation: -'wId
Function: adjective
Date: 1632
: extended throughout or involving the entire world


Main Entry: uni·verse
Pronunciation: 'yü-n&-"v&rs
Function: noun
Etymology: Latin universum, from neuter of universus entire, whole, from uni- + versus turned toward, from past participle of vertere to turn -- more at WORTH
Date: 1589
1 : the whole body of things and phenomena observed or postulated : COSMOS: as a : a systematic whole held to arise by and persist through the direct intervention of divine power b : the world of human experience c (1) : the entire celestial cosmos (2) : MILKY WAY GALAXY (3) : an aggregate of stars comparable to the Milky Way galaxy
2 : a distinct field or province of thought or reality that forms a closed system or self-inclusive and independent organization
3 : POPULATION 4
4 : a set that contains all elements relevant to a particular discussion or problem
5 : a great number or quantity


I am sorry but worldwide might be okay but universe scares me, what if I take the job as Janitor on the space station and I want to download (or would that be upload or sideways load) a song or two

"I also noted you avoided commented on the other comments in the same post as the words from Suzette..but, I'm not surprised, since those comments supported my assertion that the language is silly."

I didn't avoid her other comments and I'm not saying it is silly or not. I'm just saying it doesn't matter!

"Yeah, he went to the RIAA and asked. What about the indie artists on there? He doesn't seem to answer that one."

Indie artists on where? CD Baby is all indie artists. You seem intent on thinking the worst of CD Baby when you know nothing about them. You say they screw artists over but you can't cite one instance of that ever happening. CD Baby is the most popular outlet for independent artists. It is pretty lame that you want to tear them down and think the worst and you don't even know anything about them. It is very strange.

"We register all the codes in their database and the RIAA database as belonging to the artist/ label, NOT CD Baby. It was under these conditions that the IFPI and RIAA said it was OK for us to assign the ISRC codes to artists."

Why did he go to the RIAA and ask? They have nothing to do with these indie artists, do they? And I DO know CD Baby. I know artists that sell their music on there. Where the hell does the RIAA come into play? Can you answer me that?

If you know CD Baby and what they do then I don't know why you want to think the worst of them. They have done great things for independent artists. You would be hard pressed to find anyone to say anything bad about them except Moses Avalon, whose real name is Josh Melville and who claims to be an expert when he is really a former assistant engineer. He goes under a fake name so he can act like he is more qualified than he really is and sell books. Here is what Derek of CD Baby said regarding Moses and his contract analysis, "Yes he made it very clear to me that if I paid him $2000 he would support CD Baby, but if I didn't, he would go tell everyone we were a scam. As you can see I chose not to pay him the $2000."

Regarding the RIAA and IFPI, I am not an expert on ISRC codes, but if you read this you will get some information. It looks like the RIAA has a role in administrating the system.

http://cdbaby.org/stories/03/10/06/2534677.html

mroop..could you drop me an email at
codewarrior_wins@yahoo.com

nothing about this thread...
~Code