Jun 1, 2009
SoundCloud’s Terms and Conditions – Are they fair and reasonable ?
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 ? Forever ?
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
- Composition-in-progress
- 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 ?
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“USER can cancel his/her account at any time in the profile settings. USER is solely responsible for cancelling his/her account properly. A telephone request, letter or e-mail from USER to cancel the account will not be considered a proper cancellation. Upon cancellation of USER’s account, any and all music, videos, photos, pictures, graphics, comments, communications and other content, data or information of USER will be irretrievably deleted by SOUNDCLOUD, with the exception of such data SOUNDCLOUD may be obligated to store for a certain period of time in accordance with applicable laws and regulations.”
As long as this is in the T&Cs, there’s not really much to worry about. They say that they’re not going to share your files in any way you don’t want to, and if they do it’s always possible to close your account.
I guess ultimately that’s true. But they don’t say they won’t share your files – not in the Terms and Conditions, anyway, which is the legally binding part of the site. Certainly if they sold the service at some future point (I’m not saying they would, but IF) then the new owners wouldn’t be under obligation to honour anything not in the T&C.
How would you say Soundcloud’s T&C compare with those of Bandcamp? Or for that matter, perhaps they don’t compare well because the sites have different purposes in mind? I still haven’t completely even figured out what SoundCloud is supposed to be /for/ exactly:
* put my band’s music up where people can download it
* put my band’s music up to stream to widgets
* put my personal music collection up so I can listen to it
elsewhere besides my home computer (because I work with a
computer all day and still don’t have an iPod)
* put my personal music collection up for my friends to
stealdownloadHi all, Dave from SoundCloud here. It’s great to see Ian using the dropbox.
We’re super busy building the most kick-ass service possible for musicians and audio professionals but we’re hoping to find time to tweak any terms in the T&C’s that anyone might be concerned about. Or humanise them slightly so that they can’t be misinterpreted.
@chuck SoundCloud is used for content that you own or have the rights to use. It could be anything: your band’s music, the catalogue of a label you run, parts to a track you are collaborating on, an interview with somebody or even a field-recording. Many people are using SoundCloud privately to collaborate on or send contacts their music but it’s also great for hosting your music and then sending to Myspace, Facebook or Twitter.
Hope that helps…
Comparing to Bandcamp’s Terms Of Use is interesting, Chuck – great question. I hadn’t signed up so I hadn’t tried it. They actually have a clause which is very similar, but it explicitly includes the explanation that the Rights are for the purpose of implementing BandCamp’s service.
I doubt whether there is legally much difference between the two, but to a new visitor BandCamp’s Terms seem much more reasonable.
I think SoundCloud should make their T&C closer to BandCamp’s, but I think both companies, and all others with this type of user agreement, should undertake within the T&C to only share music as specifically authorised by the user, and to require the same of their successor(s) if any.
First, i feel that any user of any web based platform to promote ‘their’ music, should fully understand it will be passed around…possibly leached in some form…etc. Second, its 2009 and the fact that artist with a PC can sit in their home and rail high quality music is just brilliant. ’sharing’, as ive taken to calling it is whats music is all about anyway. We just do it to a much bigger audience and yea for us.
Im very much looking forward to any and all advancement in this area.
Well I more ore less interpret the T&C as enought rights for them to move the music within their realm of the site.
They are hosting it for you so they need some rights to handle your music.
In short for me it says they can display the music in any way anywhere anyhow… but that doesn’t mean some person is going to play your track somewhere (outside of the website) and take credit for it.
They let the creator decide where soundcloud can move/show the content.
Compare it to giving an employer of your store a bank card to go and fetch some supplies for your company. You give them some rights within your company to handle confidential matters.
But the moment the employer takes off his uniform and still uses the bank card.. its wrong. It wasn’t meant to go that way. And I don’t think soundcloud will take off their uniform and handle the music anywhere outside of the website.
So many artist use it now, they could get a lot of lawsuits if they would even try and run with copyrighted material
I completely agree – the question is, who would win the lawsuit ?
I’m hardly an expert, but the way I read it, Soundcloud have covered themselves – and that’s the question that still hangs in the air. It’s five months since I wrote that post, and Soundcloud haven’t updated their terms and conditions yet. As I say in the post, I have no doubt they have only good intentions – but I’m also pretty sure that if someone at Soundcloud misused the power the T&C give them, there would be nothing anyone else could do about it.
I just found out about soundcloud.
It looked interesting enough to sign up. Until I hit their terms and conditions.
My intellectual property is important to me.
They might “appear to protect my ownership” however they are in fact saying “While you own it, we own it too when its on our systems”.
I Say… Bollocks to that..
I clicked the cancel button on the sign up page and will not be returning to soundcloud unless those clauses are dramatically changed.. i.e probably never.