Have you read SoundCloud’s Terms and Conditions ? Did you know that by signing up, you grant them (and their successors) the right to do almost anything they like with your music ? For free ?
** UPDATE ** I wrote this post over two years ago. A year ago Soundcloud’s terms hadn’t changed, but today they posted a nice little promotional video, which reminded me to check their Terms and Conditions again, and I was delighted to find they’ve changed – very much for the better. For example they now say (my emphasis):
I don’t know about you, but I think these changes fully address the concerns that prompted me to write this post in the first place. Kudos to SoundCloud for taking people’s concerns on-board, and continuing to provide such a great service.
So, you don’t need to read this post now after all, but feel free to check out something else interesting while you’re here…
(Here’s the rest of the original post if you’re curious to know what the fuss was about)
SoundCloud say we are granting them the rights to empower us to do almost anything we like with our music, and that all the control lies fully on our side, but you’d never know it by reading the Terms and Conditions. Those are all about the control we give to SoundCloud. It’s a subtle distinction, but an important one.
This post explains why I’ve decided to give SoundCloud the benefit of the doubt for the time being, despite my initial concerns. I’d love to know if you agree !
Most people who’ve looked into sharing their music online have come across SoundCloud – it’s widely regarded as one of the easiest-to-use, best-implemented and best-looking of such services. A crucial innovation is that they allow music to be streamed via an embeddable player, rather needing to download it beforehand. Downloads are another option though, as is the ability to add comments at certain points within a file’s timeline.
Since having people send us their music is a key element of this site, when I was setting it up I was eager to have a SoundCloud drop-box on every page.
However on further investigation, I found aspects of SoundCloud’s Terms and Conditions that I was very unhappy with, and so I regretfully settled for recommending email, YouSendIt and FTP as the best ways to send us music to listen to instead. Specifically, the sections of the Terms and Conditions I was worried about are these:
“Grant of License
1. USER hereby grants SOUNDCLOUD and its successors and assigns a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid up, license to use, copy, transmit or otherwise distribute, publicly perform, digitally perform, publicly display, distribute, stream, download and/or otherwise make USER’s Content available to other users of SOUNDCLOUD’s Website and Services.
2. USER also grants each and every other registered user of SOUNDCLOUD’s Website a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid up, license to use, copy, transmit or otherwise distribute, publicly perform, digitally perform, publicly display, distribute, stream, download USER’s content and/or otherwise to make USER’s Content available to other users of SOUNDCLOUD’s Website and Services as set forth herein.”
Now you may not be too worried about those clauses – after all, most people now realise that in the “Web 2.0” age, getting your music heard is one of the toughest challenges anyone faces – and if you’re sharing your music online, surely you would be grateful for any extra exposure ?
Well, yes – but sometimes, No. If I were an artist, I almost certainly wouldn’t want my music to be shared if, for example, it was a:
- Demo version
- Rough mix
- Rejected remix
- Un-mastered mix
Now I’m no expert, but my take on Soundcloud’s Terms and Conditions is that, according to the clauses above, if they wanted to, they are legally entitled to put any of our music, including demos, rough mixes etc, anywhere they like, and for any purpose. So if your music turns out to be as successful as you hope, in a year or two SoundCloud could in theory be airing your rejected remixes, early demos and un-mastered mixes in public, and there wouldn’t be a thing you could do about it.
Despite all my research, I couldn’t find anything to contradict this interpretation, and so I didn’t even bother to sign up.
A few months later, one of my favourite sites, New Music Strategies, reported that SoundCloud had acquired funding of 2.5 million euros, and I left a comment after the post voicing my concerns about Soundcloud’s Terms and Conditions. Dave Haynes, who was interviewed for the NMS post, quickly got in touch. One of the first points he made was, quite correctly, that SoundCloud’s Terms and Conditions explicitly state that they don’t own any music uploaded to them:
User Generated Content
- Any and all music, videos, photos, pictures, graphics, comments, and other content, data or information that USER uploads, stores, transmits or submits to SOUNCLOUD’s Website (hereinafter “Content”) are generated by the USER (and other registered users of SOUNDCLOUD’s Website), but not by SOUNDCLOUD. USER’s Content therefore remains in USER’s sole property and responsibility.
- SOUNDCLOUD does not claim any ownership rights in any music, photos, information, materials, data, files, communications, footage and other materials which USER posts, stores or exchanges through SOUNDCLOUD’s Website and Services.
But, this doesn’t really help since they are still allowed to use it any way they see fit. To his credit, Dave exchanged several more emails with me and eventually brought the issue up at a meeting in Germany to get more information. He has given me permission to quote the replies he sent, so – on the understanding that this is a private email, and can’t necessarily be taken to represent SoundCloud’s official position – here is what he said:
“We had a discussion about the T&C’s and although we feel that they are adequate it would probably help if we clarified some of the points to make it easier for those reading through it to have a clearer idea how things work before starting to use the service. As you pointed out in your mail, it could be misinterpreted.
We are a platform intended for music and audio professionals to move their music. In a large number of cases they are doing this privately. We have many studios and professional producers using the service to send each other works in progress and unfinished tracks. And because of our timed-comments they find it easy to privately send large files back and forth and colloborate. None of this activity is visible to anybody else.
We have to ask for the user to grant certain rights in our Terms & Conditions so that we can fulfil the needs of our users. As SoundCloud we aren’t interested in doing anything with your tracks other than facilitating the things you wish to do with them. Here’s a quick overview of the main sharing and privacy options when uploading a track to SoundCloud:
1) when you upload a track you have full control of privacy levels.
– PUBLIC TRACK available for everybody with options to make it downloadable or stream-only.
– PRIVATE TRACK not available publicly on the site and only available to those who you give access to.
2) when somebody sends something to your ‘dropbox’ it is completely privately. And only accessible by you.”
And, in a later email:
“I think we’re going to look towards changing the T&C’s making improvements and refinements where required at the earliest opportunity (when we’re next with our lawyers discussing these topics). I’m personally not sure when that is but it’s on the agenda and I’ll try and let you know when any changes happen. In the meantime please take it as read that any of your private tracks would remain so.”
He also made the point that various A&R scouts at major record labels use SoundCloud, and the Terms and Conditions had been approved in these cases by legal teams on both sides.
I find all of this very reassuring – having not signed up with SoundCloud originally, I never got to see the Privacy options on their site, and I think Dave’s comments can be taken in good faith. In particular I think it says a lot that he is happy to make statements like those above in public.
So, I’m looking forward to seeing an update of the Terms and Conditions – to me all that seems necessary is the statement that tracks labelled as “private” will never be shared with anyone not specifically nominated by the owner of the song.
However I still think there are important some questions to be answered.
In the UK, negotiations between Google and the PRS still rumble on over exactly how much should be paid per play of a piece of music streamed on YouTube. How does this work in the case of something like SoundCloud ? Effectively by signing their Terms and Conditions we waive any rights to payment should the track ever be streamed in public. This seems to make sense for individuals and unsigned bands trying to get the word out and kick-start a career in music, but becomes much more of a grey area for established artists.
No-one would sign away their rights to performance royalties of their music on radio or TV – but that’s what they do when uploading to SoundCloud. As the internet inexorably overtakes TV as the main place people find new music, this will seem less and less like a realistic solution, I think. Maybe someone more experienced in these issues can shed some light in the comments.
Another question involves what should happen if SoundCloud is ever sold, and I think this is a clear reason for needing some clarity in the Terms and Conditions. Dave says they have no intention of ever using our music for anything other than the services they offer, and I believe him. But an unknown future owner might feel quite differently. One way or another, I think the artist’s rights need to be protected in the Terms and Conditions.
I think Dave Haynes and SoundCloud are making all the right noises – so much so that Production Advice now has a SoundCloud Dropbox all of it’s own, which you’re welcome to use if you like to send us something. It will be interesting to see what they do next.
What do you think ? Do SoundCloud’s Terms and Conditions have to be as powerful as they are in order to brush aside the legal technicalities of providing streaming services ? Can they adapt them to ensure tracks that are intended to be private stay that way ? Where should the line between public sharing and public broadcast be drawn ?