Synthesia Music Store

Archived development update discussion from past versions
Archived development updates.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

Nicholas wrote:Maybe something like this would bring the other options to the fore and help make the store FAQ discoverable.
I like that layout.
Nicholas wrote:
jimhenry wrote:This is all a lead up to saying I think you ought to consider selling content with in-App purchases even if you have to pay Apple a 30% cut...
I wish I could. I would easily pay the "Apple tax" if it were allowed.

The day after I received my first set of licenses back from RightsFlow, I also received an email from one of the publishers of one of the songs I just licensed. It was along these lines: "Thank you for the [notice of intent] to use 'Song X' in the Synthesia program. We feel however that the interactive nature of the use keeps it from being covered by a compulsory license..."

They had assumed the "to use [...] in the Synthesia program" on their own and I promptly corrected that they were plain MIDI tracks sold on a website with no interactive features (e.g., previews) whatsoever. Still, it brought up the issue of selling the MIDI files inside the app and how it might be increasingly challenging to convince a court that including any sort of store/purchase functionality inside Synthesia wouldn't constitute an interactive use.
Good response to the publisher. Let's assume their intentions were good, which is that they assumed something like a typical video game that uses MIDI tracks synchronized with game play action. Then their statement is correct because that is like a soundtrack on a motion picture which requires a synchronization license rather than a mechanical license, such as a compulsory mechanical license.

The subtle thing is that, for the purposes of licensing, Synthesia is a MIDI file player and it is like a record player for licensing purposes. It matters not what player your MIDI files are played on. The fact that you also provide a MIDI player is irrelevant to licenses for making recordings. When you order licenses through RightsFlow they probably are asking what your intended use is. You need to say "to make a recording of the song in the form of a MIDI file" or words to that effect. Synthesia should not be mentioned as it is not related to the licensed MIDI file any more than the iTunes program is tied to the MP3 files sold in that app. Telephone RightsFlow and ask for their suggestion of the right magic words for your intended use. Also ask for their help in correcting that language on the licenses you already have if at all possible.
Nicholas wrote:In terms of confidence, I am much more sure I'll be able to follow Apple's guideline (despite an external-only store) than I would be able to satisfactorily convince every copyright holder that an inside-Synthesia music store didn't constitute an interactive use of their content. Worse yet, if I were to try by putting up all sorts of notices like "This is just a MIDI file! You can use it however you like, not just with this app!" I'd inadvertently be violating another of Apple's guidelines. Namely:
Apple wrote:11.3 Apps using IAP to purchase physical goods or goods and services used outside of the App will be rejected
I would describe MIDI files you can use with any program anywhere as a "good[...] used outside of the App".

That is:
To keep Apple happy an in-app purchased song can only be used inside the app.
To keep publishers happy, the same song must be completely divorced from the app (and then the type of use is still fuzzy at best).

If I was only allowed a single word to describe the situation, it would be "frustrating". ;)
Amen to "frustrating."

However, I think you can be a bit more aggressive here. I don't think:
To keep Apple happy an in-app purchased song can only be used inside the app.
To keep publishers happy, the same song must be completely divorced from the app.

Analogize MIDI files to MP3 files and Synthesia to an MP3 player. I can't imagine Apple has any problem with selling content in the app that can be played in the app even though it can also be played elsewhere. I think Apple wants to avoid a "QVC app" that creates a marketplace for goods. Imagine someone having an iPad app that sells iPad apps.

As for the publishers, what they are looking for is synchronization--visual action that you use to cue the music. Merely selling the content within a player for that content shouldn't be a problem except that publishers may not be used to MIDI players that play MIDI files like they are MP3 players that play MP3 files.

That is:
To keep Apple happy an in-app purchased song must be readily and significantly usable inside the app.
To keep publishers happy, the same song must not be synchronized to the visual content of the app (it is a significant difference that the visual content is synchronized to the audio content).
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:When you order licenses through RightsFlow they probably are asking what your intended use is.
Actually, I was surprised to find they don't ask about use at all. I wonder if their position is that their FAQ covers what they can/can't license well enough that if you're still engaging their services, you should already know better.

My guess is that the publisher saw the name on the NOI ("Synthesia LLC"), searched for it, found the website, and made the assumption that I hadn't done my homework. To be fair, that assumption is probably correct more often than it's not. After my response (using verbiage surprisingly similar to your "The fact that you also provide a MIDI player is irrelevant to licenses for making recordings") I haven't heard back, so I'm guessing they were sated.
jimhenry wrote:... the same song must not be synchronized to the visual content of the app (it is a significant difference that the visual content is synchronized to the audio content).
I haven't heard it said like that before. That is a very interesting distinction. Now I want to dig around and see if I've just been missing that subtlety each place I've read something similar before.

I know that MIDI being treated as a phonorecord is historically contentious because of the ease with which you can use it for more purposes than simple playback. I could see a publisher arguing that the "MP3 player playing an MP3 file" analogy starts to break down when you can connect an input device like a keyboard that can direct the playback.

In terms of being more aggressive with my understanding of those rules, I am cautious by my very nature. To put my fears to rest, I wonder if it would be prudent to contact each publisher ahead of time (for each song that would appear in the in-app store) to see if they agree with our interpretation before listing it in the in-app store. That email might point out the web store, briefly discuss that I believe the in-app store is equivalent in terms of use, and ask for their opinion (reminding them that an affirmative response would probably lead to increased royalties).

Assuming near-100% agreement, the 11.14 Apple guideline becomes a non-issue and everyone is happy/comfortable with the whole thing.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

There is no legal definition for a "synchronization license." That is just a term widely used for a license to use an existing composition as part of a motion picture or other audio-visual work. What you need to focus on is what are you permitted to do with a compulsory mechanical license because that is defined by law. Here is the relevant part of 17 USC 115:

(1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.

The Registrar of Copyrights has issued an opinion that a Standard MIDI Files is a phonorecord. As long as there is nothing added to the MIDI file to provide a visual image to make an audio-visual work, the MIDI file will remain a phonorecord that can be distributed under the terms of a compulsory license.

Don't get distracted by what a player might do with a MIDI file. All that matters is what is IN the MIDI file you make and distribute. If that is just the information that causes the sound device to render the pitch, timbre, speed, duration and volume of the musical notes in a certain order, as does a player piano in conjunction with a piano roll, or a compact disc player in conjunction with a compact disc, then the US Copyright Office considers that to be a phonorecord. A Standard MIDI File is no more capable of creating an audio-visual work than a piano roll. The fact that one can create a player that adds a visual display while playing the MIDI file is irrelevant as long as there is nothing in MIDI file to control that visual display beyond what is necessary to reproduce the recorded musical composition.

I assume you have to get Apple's approval to sell MIDI files with an in-app purchase. It is a pretty safe bet that they will give some consideration to whether you have appropriately licensed those files. They have some liability, probably a lot of liability, if they support sales of improperly licensed copyrighted materials. They can't take 30% of the selling price and then turn a blind eye to whether that sale was legal. Apple's approval to sell MIDI files in-app is probably something that should help you sleep better.

Did I mention that the compulsory license arose from the concern of piano roll makers that the copyright holders for popular songs would refuse to license the making of piano rolls for those songs? Compulsory licenses for MIDI files brings things full circle.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:Did I mention that the compulsory license arose from the concern of piano roll makers that the copyright holders for popular songs would refuse to license the making of piano rolls for those songs? Compulsory licenses for MIDI files brings things full circle.
I am becoming more and more confident about this all the time. Thanks for taking the effort to help convince me. It sounds like we would both like to see an in-app music store in the iPad version.

I think I am prepared to argue the point now, should any publishers come around with a disagreement. I could see adding some in-app store interface somewhere around Synthesia 10 if there is time before the end of the year.
Nicholas
Posts: 12471

Post by Nicholas »

MUSIC STORE: synthesiagame.com/store
  • Two free songs have been added. Go grab them!
  • Added the "Spend at least $5 to get Dreamy Piano" promotion.
  • Manually added Dreamy Piano to all previously placed orders that qualified.
  • Pushed the "mini FAQ" (gift cards, order history, etc.) up to the right side of the "Music Store" header.
  • The completed order page now says you should be using Synthesia 9 (instead of 8.6). ;)
  • The store now enforces https protocol on all pages.
That Synthesia 9 thing is important if you're checking out either of the free songs or Dreamy Piano.

The two free songs are interesting. They were among the most well-known in the book, but all the choices were still pretty old-timey. I'm not sure these will communicate everything I wanted them to about the store, but it's certainly better than nothing. Let me know what you think.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

FWIW, there is no legal requirement to verify the user's intent to use the song for their personal use. Oddly, it is your intent to sell the song for personal, private use that controls not the purchaser's intent.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:Oddly, it is your intent to sell the song for personal, private use that controls not the purchaser's intent.
That controls what? I'm not sure I understand. That check box is in lieu of a big terms-of-service agreement. Is it not accomplishing anything? I vaguely remember reading someplace that I had to inform users about what uses the mechanical license covered.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

Here is the relevant part of 17 USC 115:

(1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery.

The "primary purpose" is that of the person obtaining the compulsory license. That does not require you to get the purchaser to agree that they are buying the phonorecord for private use. If you wanted to be cautious you could include a notice of "This song is intended for private use."

Of course, the purchaser does not obtain any greater rights than what the seller has, so a public use would be a copyright violation since the purchaser would have no public performance license based on this purchase. However, that is between the copyright owner and the purchaser. Same situation as buying a CD. You can listen to it at home but you can't play it in a nightclub.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:If you wanted to be cautious you could include a notice of "This song is intended for private use."
That's sort of how I view the check boxes to begin with. By requiring a check in the box, it seems much more likely that the purchaser will actually read the statement.

It sounds like the same argument could be made for the US-only limitation, too, but I'd rather err on the side of caution there too and have that be completely explicit before the order can be completed.

As a thought-experiment: let's consider me as the most cautious person ever. Is there a reason those can't be check boxes? That is, I'm less worried about the bare minimum to adhere to 17 USC 115 and more interested in arming customers with important information they may not have known. (e.g., most younger Synthesia users don't realize posting YouTube videos of copyrighted music is generally illegal. Hopefully "personal, private" will be enough to educate some percentage of them.)
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

Of course no reason that you can't have checkboxes. However, given that you also want to keep the pages as simple as possible, how about reducing it to one check box that says "I live in the United States and these songs are for my personal, private use."

If we want to get picky, we don't care where they live. What we care about is that they are going to use the songs in the US where they are licensed. But I think "live in the US" is an easier to understand proxy for that. Having them affirmatively make that assertion is a good idea so that you can show you made an effort to avoid selling into jurisdictions where the songs are not licensed.

"...and these songs are for my personal, private use only" is for the education of the purchaser. Not that I can imagine many purchasers who would make other uses. Probably the closest to the line would be a music teacher using these as teaching pieces. They should be having their students buy their own copies of the songs and then everything should be cool. Anyone who is performing in public is hopefully aware of the need to get performance licenses for any copyrighted songs they are performing.

BTW, I believe your free songs are free of copyright worldwide. Copyrights in countries other than the country of original publication are generally valid only for as long as the copyright in the country of original publication.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:BTW, I believe your free songs are free of copyright worldwide.
The "They Never Renewed" book cautioned (literally on page 1, emphasis theirs) that "these works are guaranteed to be in the Public Domain in the United States only. Other countries have different laws about Public Domain."

So in lieu of doing the research myself, the US-only check box was already there and I'm fine leaving it even if the only songs in the order are originally public domain. Some day when I add more countries, I could make the form a little more sophisticated, but I'm happy with it today as-is.
Nicholas
Posts: 12471

Post by Nicholas »

The (official) launch of the music store is imminent. I'll be doing the site updates over the next day or so to finally get things on the front page of the site.

In the meantime, I just exposed a new feature: song bundles.

Halloween seemed like a good test run before Christmas. Let me know if anything looks/behaves strangely. That bundle background image is also the first time different devices should load different content. (Retina devices should see a much crisper version of the art.) So let me know if you have any trouble with that, too.

Thanks!
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

The Halloween Bundle is a fun package! I like the way it is featured graphically.

I'd suggest doing something to feature the two free sample songs as well. They are lost in even the small number of songs available now.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:I'd suggest doing something to feature the two free sample songs as well...
How is this? Now they stand out a bit while still not being obnoxious.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

How can something free be obnoxious? :lol:

But no, if someone doesn't know that you have two free songs available for evaluating the quality of what is offered, there is a good chance they won't find them buried in the listing before they wander away. I think you need a "free taste" banner promoting these songs that is always at the very top of the page, and every page once the store grows to multiple pages.

When you are giving away free samples, your goal is to give away as many as you can. You should be promoting those freebies at every turn. What seems obnoxious to you probably won't seem that way to 99% of your viewers who never see 99% of what you are putting out.

Earth to Nicholas, most people down here are not breathlessly watching your every move. In fact, most of them don't even know if you are moving.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Nicholas
Posts: 12471

Post by Nicholas »

jimhenry wrote:How can something free be obnoxious? :lol:
For first-time visitors, sure. For regular shoppers (hopefully driven by the monthly music store newsletter) once they've got the free samples, I would imagine I'd want to keep that stuff out of their way.

Being able to differentiate between the two would be helpful. Then the big "Hey, download these!" banner could be presented just to the first group.
MichelJung
Posts: 3

Post by MichelJung »

I didn't follow the whole thread, but: right now I wanted to buy a song in the music store, but since I've no idea how it sounds (no preview), I'm not going to buy any of it. And no, neither youtube nor the free songs are a reference since there are often different versions of the song.

Just my two cents.
User avatar
jimhenry
Posts: 1821

Post by jimhenry »

Michel,

To give you a quick answer about why there are no previews, it's a quirk of copyright law. Because of the way the MIDI files are licensed, Nicholas can't post even a 30 second clip as a preview. Sad but true.
Jim Henry
Author of the Miditzer, a free virtual theatre pipe organ
http://www.Miditzer.org/
Locked