Cybaris® Cybaris®
Volume 12 Issue 1 Article 2
2021
In9nite Setlist: Analyzing Pioneer DJ’s Catalogue Streaming In9nite Setlist: Analyzing Pioneer DJ’s Catalogue Streaming
Partnerships with Beatport and SoundCloud Partnerships with Beatport and SoundCloud
Nicholas Rivera
Follow this and additional works at: https://open.mitchellhamline.edu/cybaris
Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law
Commons
Recommended Citation Recommended Citation
Rivera, Nicholas (2021) "In9nite Setlist: Analyzing Pioneer DJ’s Catalogue Streaming Partnerships with
Beatport and SoundCloud,"
Cybaris®
: Vol. 12 : Iss. 1 , Article 2.
Available at: https://open.mitchellhamline.edu/cybaris/vol12/iss1/2
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CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
35
INFINITE SETLIST: ANALYZING PIONEER DJ’S CATALOGUE STREAMING
PARTNERSHIPS WITH BEATPORT AND SOUNDCLOUD
Nicholas Rivera
1
Table of Contents
Introduction ................................................................................................................................... 36
The Story Thus Far ................................................................................................................... 38
The Rise of Streaming .............................................................................................................. 39
Brief History of DJing & Pioneer ............................................................................................. 41
Why It’s Important ................................................................................................................ 41
The DJ’s Evolution ............................................................................................................... 43
SoundCloud............................................................................................................................... 46
Beatport ..................................................................................................................................... 48
How the Platforms Work .............................................................................................................. 49
Beatport ..................................................................................................................................... 49
Beatport Link Subscription ....................................................................................................... 49
Beatport Link Pro & Beatport Link Pro+ ................................................................................. 50
SoundCloud Go+ Subscription ................................................................................................. 51
Terms of Use ................................................................................................................................. 52
Generally ................................................................................................................................... 52
SoundCloud............................................................................................................................... 53
SoundCloud’s Terms & Agreements .................................................................................... 53
SoundCloud Terms of Use – UGC ....................................................................................... 56
SoundCloud Representations, Warranties, & Liabilities ...................................................... 57
SoundCloud Go+ Terms ....................................................................................................... 59
Beatport ..................................................................................................................................... 60
Beatport’s Terms and Conditions ......................................................................................... 60
Beatport Link Terms of Use ................................................................................................. 66
Rekordbox’s End User Agreement ........................................................................................... 70
Conclusion .................................................................................................................................... 73
1
This author is a student at Mitchell Hamline School of Law, with expected graduation in May 2021. His
biographical information can be found on LinkedIn at: https://www.linkedin.com/in/thenickrivera/.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
36
Introduction
In the past 15 years, DJing has become a popular art form across the world because of
music’s low cost and the popularization of personal computers.
2
Personal computers and devices
with strong computing power – like smartphones – give easy access to digital platforms that
allow anyone to play music, manipulate the music in real-time, play multiple sound recordings
over each other, and sample different sound recordings in real-time. Although some of the
widely available tools are exciting for hobbyists to use, a professional grade software and
hardware combination has become the industry standard for professional grade performances.
Pioneer DJ (“Pioneer”), a brand recently purchased by Noritsu Koki Co., Ltd.
(“Noritsu”), is a DJ hardware and software company that has become the professional standard
for professional DJs.
3
For the purposes of this research, “professional” refers to DJs who perform
at venues that hold more than a few hundred people. Pioneer has become the standard DJ
equipment in the music industry because of its near-flawless combination of hardware and
software.
4
One of the major ways that Pioneer established itself as the industry standard was by
allowing DJs to perform music stored in USB flash drives and SD cards, or an external hard
drive.
5
This meant that DJs were no longer required to carry CD cases for performances and now
had access to a far greater quantity of music than what a CD could hold.
6
Recently, Pioneer’s flagship software Rekordbox (“Rekordbox”) partnered with
SoundCloud Limited (“SoundCloud”), a music streaming and hosting service that allows users to
2
Chal Ravens, A Decade of DJing: How Technology Changed the Art Form, DJ MAGAZINE (Feb. 5, 2020, 5:00 PM)
https://djmag.com/longreads/decade-djing-how-technology-changed-art-form.
3
Dan White, Pioneer DJ Just Got Sold To Noritsu, A Photo Printer Manufacturer, DJ TECHTOOLS (Mar. 2, 2020),
https://djtechtools.com/2020/03/02/pioneer-dj-just-got-sold-to-noritsu-a-photo-printer-manufacturer/.
4
Jordan Rothlein, Industry standards: Pioneer CDJ (Oct. 3, 2013) https://www.residentadvisor.net/features/1910.
5
Id.
6
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
37
upload, download, listen to, like, and comment on other users’ music.
7
Rekordbox has also
partnered with LiveStyle, Inc., Beatport, LLC, Beatport International LLC and Beatsource LLC
(collectively, "Beatport"), a digital music storefront that allows users to buy and download music
in various high-quality file formats.
8
The purpose of these individual partnerships is to use the
vast libraries of music from the music hosting platforms in Rekordbox without having purchased
music from either platform.
9
This is revolutionary for DJs using Rekordbox because the only
restraint placed on what a DJ can play is the catalog of each platform.
This research does not intend to argue whether Beatport or SoundCloud’s compensation
structure is fair to musicians. Compensation structures on each streaming platform are constantly
changing. With the passage of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act
(“MMA”), the Mechanical Licensing Collective (“MLC”) will standardize mechanical license
collection and royalty distribution.
i
It is also worth noting that the platforms’ policies may
change at any time.
The purpose of this paper is to examine the partnerships Rekordbox has with SoundCloud
and Beatport, determine if user agreements of each platform legally allow the partnerships to
occur, what the implications are of using the music streaming service for live performances at
venues, what the implications are of streaming music for live streamed performances via the
internet, satellite radio, and terrestrial radio, and determine which types of copyright royalties
need to be paid to who and by whom.
7
SoundCloud, YOU CAN NOW MIX SOUNDCLOUD TRACKS WITH PIONEER DJ’S REKORDBOX (Sep. 10,
2019) https://blog.soundcloud.com/2019/09/10/you-can-now-mix-soundcloud-tracks-with-pioneer-djs-rekordbox/.
8
DJ Mag, YOU CAN NOW STREAM BEATPORT'S ENTIRE CATALOGUE TO REKORDBOX DJ (last
accessed Dec. 2, 2020) https://djmag.com/news/you-can-now-stream-beatport-rekordbox-dj.
9
Dan White, Rekordbox 5.6.1 adds Beatport LINK and Soundcloud Go+ streaming libraries (Sep. 9, 2019)
https://djtechtools.com/2019/09/09/rekordbox-5-6-1-adds-beatport-link-and-soundcloud-go-streaming-libraries/.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
38
The Story Thus Far
Revenue streams in the must industry have changed significantly over the past 25 years.
Music sales peaked in the late 1990’s when consumers were limited to buying music through
physical media such as compact disks (“CD”), cassettes, and vinyl.
10
In 1999, Napster, a free
peer-to-peer (“P2P”) file sharing program allowed users to upload music from CDs and share the
music files with other program users.
11
This was not the first instance of copyright infringement
and piracy in the music industry, but Napster’s introduction of free P2P file sharing allowed
every person with a home computer and an internet connection to share their music collection.
12
One year after Napster was released in the United States, CD single shipments decreased by
39%.
13
In 2003, Apple launched the iTunes store, an e-commerce music store that allowed
consumers to purchase password protected copies of master recordings and save them to their
computers.
14
The launch came in the wake of bad press for the music industry as record labels
used the judicial system to make examples of small-time music pirating offenders to show
copyright law enforcement’s full extent
15
.
16
ITunes’ success came from its creation of a music
“singles” marketplace. This meant that iTunes negotiated with rights holders of master
recordings – mainly record labels – and convinced them to allow consumers to purchase
10
Brian Garrity, Forecast: Physical Music Sales - Top Out In 2002, Retail Prices Drop, BILLBOARD, 2000,
Billboard.com (last visited Mar 27, 2020).
11
A&M Records v. Napster, Inc., 239 F.3d 1004, 1011-1012 (9
th
Cir. 2001).
12
Tom Lamont, Napster: The Day the Music was Set Free, THE GUARDIAN (Feb. 23, 2013, 7:05 PM),
https://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing.
13
The Associated Press, Napster Said to Hurt CD Sales, THE NEW YORK TIMES, 2001, NYTimes.com.
14
Brian X. Chen, April 28, 2003: Apple Opens iTunes Store, WIRED (Apr. 28, 2018 12:00 AM),
https://www.wired.com/2010/04/0428itunes-music-store-opens/.
15
See BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005);
16
Amanda Holpuch, Minnesota Woman to Pay $220,000 Fine for 24 Illegally Downloaded Songs, THE GUARDIAN (
Sep. 11, 2012, 5:10 PM), https://www.theguardian.com/technology/2012/sep/11/minnesota-woman-songs-illegally-
downloaded.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
39
individual songs (“singles”) from an album instead of requiring the purchase of an entire
album.
17
By creating compressed music files that were nearly non-transferable, iTunes helped
reduce music pirating and illegal sharing, but, pirating continued to be a major issue for the
music industry.
18
The Rise of Streaming
Streaming is a digital method of continuously transmitting or receiving data over a
computer network that allows for immediate playback while the remainder of the data is still
being received.
19
Music streaming began in the 1990s and early 2000s with the Internet
Underground Music Archive and Last.fm.
20
Pandora Radio, a non-interactive platform, brought
popularity to music streaming via the internet.
21
Pandora generated a music station based on a
musician, a genre, or a specific song chosen by the user.
22
The platform was considered non-
interactive because the user could not choose which song would play on the station and the user
was only allowed to skip songs on the station a limited number of times per hour.
23
This form of
non-interactive music streaming played an important role in the rise and popularity of streaming
music from internet connected devices, but the user still lacked control.
24
17
Jeffrey Philip Wachs, Searching for Equality: A Conference on Law, Race, and Socio-Economic Class: Note: The
Long-Playing Blues: Did the Recording Industry’s Shift from Singles to Albums Violate Antitrust Law, 2 U.C. Irvine
L. Rev. 1047, 1048-1049 (2012).
18
Paul Boutin, The Age of Music Piracy Is Officially Over, WIRED (Nov. 29, 2010, 12:00 PM),
https://www.wired.com/2010/11/st-essay-nofreebird/.
19
Stream, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/stream#h2 (last visited May 5, 2020).
20
Kish Lal, Is Streaming Making Listeners Smarter or Complacent?, RED BULL (Apr. 10, 2018, 11:21 PM),
https://www.redbull.com/au-en/music-streaming-pros-and-cons.
21
Id.
22
Amy X. Wang, Put your lighters Up for Pandora, The Music Service that Briefly Changed the World, QUARTZ
(Jun. 26, 2017), https://qz.com/1006098/pandoras-p-radio-service-revolutionized-music-but-its-chances-of-
surviving-look-shaky-in-an-apple-aapl-and-spotify-world/.
23
17 USCS § 114(j)(6) (2020).
24
Rob Walker, The Song Decoders, THE NEW YORK TIMES MAGAZINE (Oct. 14, 2009),
https://www.nytimes.com/2009/10/18/magazine/18Pandora-t.html.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
40
In 2007, SoundCloud launched as a music-based social media platform that allowed users
to upload music to share with other users of the website. Users could create profiles, listen, like,
comment on music, and follow musicians’ accounts.
25
Early on, SoundCloud invited artists to
post original songs, remixes, and combinations of multiple copyrighted songs into one new piece
of music (“Mash-ups”).
26
Posting new versions of copyrighted works allowed users to gain
popularity among audiences while not paying royalties to the underlying work’s rightsholder.
27
Unsurprisingly, allowing users to publish and distribute derivatives of compositions and master
recordings marked SoundCloud as the frontline for the battle between fair use and copyright
infringement.
28
In 2008, Spotify launched a two-tier streaming service that allowed users to stream music
to the Spotify program on their computers without hosting or storing any music files on the
user’s computer.
29
The initial platform launch was limited to European countries.
30
The first tier
was a free subscription that limited the user’s music browsing capabilities and the program
would play advertisements between every few songs.
31
The second tier subscription was a paid
$10 subscription that allowed the user to stream music, have full browsing capabilities of
Spotify’s music library, and no advertisements played between songs.
32
25
Dani Deahl & Casey Newton, How SoundCloud's Broken Business Model Drove Artists Away, THE VERGE (Jul.
21, 2017 12:41 PM), https://www.theverge.com/2017/7/21/15999172/soundcloud-business-model-future-spotify-
streaming.
26
Id.
27
Id.
28
Id.
29
Newsbeat, How Spotify Came to be Worth Billions, BBC NEWS (Mar. 1, 2018),
https://www.bbc.com/news/newsbeat-43240886.
30
Charlie Sorrel, Spotify Launches in the U.S at Last, WIRED (Jul. 14, 2011 8:51 AM),
https://www.wired.com/2011/07/spotify-launches-in-the-u-s-at-last/.
31
Amy X. Wang, Spotify's Fight for Free Music Just Got Real, QUARTZ AT WORK (2018),
https://qz.com/work/1218831/spotify-is-doubling-down-on-an-unprofitable-strategy-as-it-prepares-to-go-public/.
32
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
41
In 2011, after two years of contentious negotiations between Spotify and major record
labels, Spotify launched in the United States.
33
With the widely adopted expectation of free
music brought on by the Napster age of P2P file sharing, Spotify’s launch in the United States
allowed the general public low cost access to songs by their favorite artists and musicians that
were signed to major record labels.
34
This was the first widely adopted instance of interactive
music streaming for personal use that included deep catalogs of popular recordings owned by
record labels.
Over the next decade, interactive music streaming platforms for personal use began
overtaking the music market.
35
Corporate behemoths like Amazon, Apple, Google, and YouTube
created their own interactive music streaming platforms and in 2016, music streaming overcame
digital sales as the largest revenue creator in the music industry.
36
Brief History of DJing & Pioneer
Why It’s Important
Understanding how DJs have brought music to crowds is crucial in understanding the
impact of Rekordbox’s partnerships with Beatport and SoundCloud because it has been a
determining factor in how rights holders are compensated for use of their works. Prior to the
computer-age of DJing, tracking which works were performed at which venues was a matter of
estimation.
37
Today, much of the music played in commercial spaces is either pre-set by a
33
Ben Sisario, New Service Offers Music In Quantity, Not by Song, THE NEW YORK TIMES (Jul. 13, 2011),
https://www.nytimes.com/2011/07/14/technology/spotify-music-streaming-service-comes-to-us.html.
34
Id.
35
Jill Serjeant, Streaming Overtakes U.S. Digital Music Sales for First Time: Nielsen, REUTERS (Jan. 5, 2017, 10:23
AM), https://www.reuters.com/article/us-music-streaming-idUSKBN14P1YH.
36
Id.
37
How ASCAP Calculates Royalties, ASCAP, https://www.ascap.com/help/royalties-and-
payment/payment/royalties (last visited Apr 17, 2020).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
42
corporate entity or is streamed.
38
Royalty collection entities such as performing rights
organizations (“PROs”) work with different data analysis organizations to analyze how and
where musical works are used.
39
Musicians and publishers join a PRO to collect performance royalties whenever a music
composition is performed over terrestrial or satellite radio, television, the internet, or performed
live at a venue.
40
PROs grant licenses to each platform or venue for an annual fee and rights
holders are paid a calculated amount of money quarterly depending on how many times that
composition was performed and on where the performance occurred.
41
There are multiple PROs
in the United States that represent different publishers and composers.
42
When a venue or
platform purchases a public performance license from a PRO, a license holder may only perform
works that are represented by the licensing PRO.
43
Multiple PROs may represent publishing and
writing rights holders in a single composition so a platform or venue requires a public
performance license from each representing PRO to legally perform the composition.
44
These
licenses determine performance royalty income for music publishers and composers and
determine where DJs can legally publicly perform music.
Rekordbox’s partnership with SoundCloud and Beatport is unprecedented because three
highly influential companies are working together to allow DJs to perform songs from catalogs
38
Andrew Matson, Who Picks The Music You Hear At The Mall?, NPR (Nov. 28, 2012, 1:00 PM),
https://www.npr.org/sections/therecord/2012/11/28/165947927/who-picks-the-music-you-hear-at-the-mall.
39
HOW ASCAP CALCULATES ROYALTIES, https://www.ascap.com/help/royalties-and-payment/payment/royalties (last
visited Apr 17, 2020).
40
ASCAP Licensing, ASCAP, https://www.ascap.com/help/ascap-licensing (last visited May 5, 2020).
41
Id.
42
Id.
43
Id.
44
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
43
that contain millions of works between them.
45
DJing is an easy art form to perform at venues,
online, or in personal use settings. However, if a DJ is streaming the music for a performance
through the DJ equipment and outputting the audio to a venue, online, or both simultaneously,
there are multiple sets of rights being used which then requires multiple royalty collection
agencies to be involved in performing a stream of a single copyrighted work.
46
The difference
between how past and present DJs stored and performed music is integral in understanding why
streaming musical works for live and online performance changes how rights holders enforce
their rights.
The DJ’s Evolution
Although it is unclear when playing two records on top of each other to create a cohesive
sound (“mixing”) began, DJ Kool Herc is credited with starting modern turntablism where he
would manipulate vinyl records that were playing at the same time.
47
DJ Kool Herc became
known for repeating the drum breaks in songs and speaking over them.
48
He would extend the
break by playing the same record on two turntables and switching between them.
49
Throughout
the 1970’s, artists like Grandmaster Flash began refining mixing techniques and began
scratching records on the turntable’s needle as instrumentation over the other song that was
45
Peter Kirn, No, Beatport's Subscription Will Not Kill Music - here's how it really WORKS, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works/.
46
Billboard Staff, Infographic: A Basic Explanation of Streaming Money, BILLBOARD (Oct. 12, 2016),
https://www.billboard.com/articles/business/7540999/infographic-streaming-music-money-basic-explanation. (last
visited Apr 17, 2020).
47
The Art Of Turntablism | History Detectives, PBS, https://www.pbs.org/opb/historydetectives/feature/the-art-of-
turntablism/ (last visited Apr 17, 2020).
48
Rebecca Laurence, Culture - 40 Years on From the Party Where Hip Hop was Born, BBC (Oct. 21, 2014),
http://www.bbc.com/culture/story/20130809-the-party-where-hip-hop-was-born.
49
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
44
playing.
50
Using vinyl record turntables was the standard practice for DJs during the 1970s and
1980s.
51
By the 1990s Pioneer had become the standard in automobile audio technology with its
CD anti-skip technology.
52
Once established as the standard in the automobile industry, Pioneer
later applied its anti-skip technology to other industries.
53
In 1992, Pioneer launched its first “CD
turntable” (“CDJ”) known as the CDJ-300.
54
This iteration, though a step forward in technology,
did not gain traction among DJs.
55
In 1994, Pioneer launched the CDJ-500 which had many of
the standard features that CDJs have today including fast-forward and rewind buttons, a “Cue”
button that allows the DJ to return to the DJs’ decided starting point in the song, and a tempo
adjustor.
56
The CDJ-500 revolutionized DJ performances.
57
Rather than having to bring two
large turntables, the needles for the turntables, and a limited amount of records in a crate to
choose from for an event, a DJ could arrive with CDJ-500s and a CD library that carried far
more songs than vinyl in a significantly smaller, lighter, and more convenient space.
58
Over the next 15 years, Pioneer released 14 CDJ iterations, adding features and giving the
DJ more music manipulation capabilities.
59
On the 15
th
iteration, Pioneer released the CDJ-400, a
CDJ that included a USB drive input that allowed DJs to play MP3 files stored on the USB drive
50
The Art Of Turntablism | History Detectives, PBS, https://www.pbs.org/opb/historydetectives/feature/the-art-of-
turntablism/ (last visited Apr 17, 2020).
51
Hillegonda C. Rietveld, Anna Gavanas & Bernardo Attias, DJs and the Aesthetic of Acceleration, DJ CULTURE IN
THE
MIX: POWER, TECHNOLOGY, AND SOCIAL CHANGE IN ELECTRONIC DANCE MUSIC 200–201 (2013).
52
History of Pioneer Corporation: Brand / History: Corporate Information, PIONEER CORPORATION,
https://global.pioneer/en/info/history/chronology/ (last visited Apr 17, 2020).
53
Id.
54
Adam Chesters, History of the Pioneer CDJ (DJ CD Decks) & "Forgotten Child", THE DMP-555 ADAM
CHESTERS | DAZED EVENTS (Jan. 1, 2017), http://adamch.com/history-of-the-pioneer-cdj/.
55
Id.
56
Id.
57
Pioneer DJ, Pioneer DJ History - Part 1: Evolution of the CDJ, YOUTUBE (May 20, 2014),
https://www.youtube.com/watch?v=CgTdAdynUYo.
58
Id.
59
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
45
as well as the standard CD input.
60
This important addition from only having a CD input to
having both a CD input and a USB drive input facilitated DJ culture’s transition from playing
music from CDs to playing music from USB drives.
61
In 2009, Pioneer released the CDJ-900 and the CDJ-2000 which both included the same
features as the CDJ-400, but included far more music analysis and manipulation tools.
62
Both
models included Pioneer created Pro DJ Link which allows DJs to connect CDJs via ethernet
cable and play music from the USB drive that is connected to the other CDJ.
63
This meant that
DJs no longer had to carry USB drives with identical music, and therefore allowed DJs to widen
their music selection for a performance, or only arrive to a performance with a single USB drive.
The major difference between the CDJ-900s and the CDJ-2000s is that the latter had built-in
visual software that analyzed the music in the CDJ and gave the user a visual representation of
the music’s wavelength.
64
In January 2011, Pioneer released the DDJ-S1, the company’s first midi-based DJ
controller which gave the user two CDJ-like components attached to a digital audio mixer
(“controller”).
65
This all-in-one collection had a USB B Port that allowed the controller to
connect to computer DJ software that stored and analyzed music and then routed the music out of
the computer, through the mixer, and into the speakers.
66
This was a relatively low-cost
alternative compared to purchasing the CDJ-900s or the CDJ-2000s, but required the user to
have a computer capable of hosting DJ programs. If the user did have a computer that was
60
Id.
61
Id.
62
Pioneer DJ, Pioneer DJ History - Part 3: The Digital Revolution, YOUTUBE (Jun. 17, 2015),
https://www.youtube.com/watch?v=IaboGY6_oM8&t=5s.
63
Id.
64
Id.
65
Tech News, Pioneer launch DDJ-S1 and DDJ-T1 Controllers, RESIDENT ADVISOR (Jan. 11, 2011 5:05 AM),
https://www.residentadvisor.net/news/13360.
66
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
46
capable of storing music and simultaneously using a high-powered DJ program, the DJ could
access their entire library of music which was almost unheard of 5 years prior.
Finally, in 2012, while releasing new versions of DJ controllers, Pioneer created
Rekordbox and released the CDJ-2000 Nexus.
67
This was a groundbreaking development
because Rekordbox is both a DJ software that analyzes music, but also a DJ performance
software if so desired. When the CDJ-2000 Nexus launched, one of its major selling points was
the seamless integration of music, playlists, music analysis, sorting, and audio visualizing
between the Rekordbox computer program and Pioneer CDJ hardware.
68
The CDJ-2000 Nexus
became the industry standard across the world because it did not require DJs to tour or travel
with hardware aside from a computer with Rekordbox installed and USB drives to perform the
music with.
69
The recent partnerships between Rekordbox, Beatport, and SoundCloud have changed
DJs’ capabilities drastically. The amount of music DJs have access to for live performances is
unprecedented, and because Beatport and SoundCloud integrate seamlessly into Rekordbox as a
DJ platform, one of the biggest barriers in DJ performances has come crashing down. Because of
the massive shift, rights owners must be reassured that they are receiving proper compensation
for the musical works used.
SoundCloud
67
Dan White, Pioneer Launches CDJ-2000 Nexus, DJ TECH TOOLS (Sep. 6, 2012),
https://djtechtools.com/2012/09/06/pioneer-launches-cdj-2000-nexus/.
68
Id.
69
Admin, Tech Review: Pioneer CDJ-2000 Nexus, DJMAG (Dec. 7, 2012), https://djmag.com/content/tech-review-
pioneer-cdj-2000-nexus.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
47
SoundCloud has had major influences across multiple music sub-cultures.
70
SoundCloud’s continuing influence permeates throughout hip-hop culture because artists such as
Chance the Rapper, Migos, Post Malone, and Kehlani were discovered through posting music on
the platform.
71
The phrase “SoundCloud Rap” has become a regularly used term in hip-hop and
rap communities because many of the mid-to-late 2010s rap songs posted to SoundCloud had
certain stylistic qualities – such as low budget and distorted production, an affinity for pop-punk,
and an emphasis on melody over rhythm – that were popularized through the platform
72
.
73
Groundbreaking artists in dance and pop music were also discovered on SoundCloud including
Kygo, The Chainsmokers, and Flume
74
.
75
Although SoundCloud is still an active platform, its cultural influence has decreased
significantly since 2017 due to the company’s poor financial management.
76
Using
SoundCloud’s free services, advertisements play regularly, and this has pushed users away from
the platform.
77
70
Id.
71
Peter O'Melia, 10 Rappers Discovered On SoundCloud, THE DAILY DROPOUT (2019),
https://www.dailydropout.com/articles/2019/3/18/rappers-discovered-on-soundcloud (last visited Apr 17, 2020).
72
Missy Scheinberg, Understanding SoundCloud Rap: Is This Hip-Hop’s Most ‘Punk’ Moment Yet?, LNWY (Oct.
2017), https://lnwy.co/read/meet-soundcloud-rap-hip-hops-most-punk-moment-yet/.
73
Jon Caramanica, The Rowdy World of Rap's New Underground, THE NEW YORK TIMES (Jun. 22, 2017),
https://www.nytimes.com/2017/06/22/arts/music/soundcloud-rap-lil-pump-smokepurrp-xxxtentacion.html.
74
Michaelangelo Matos, Kygo Delivers Dance Beats, With a Side Order of Pan Flute, THE NEW YORK TIMES (Jan.
19, 2016), https://www.nytimes.com/2016/01/20/arts/music/kygodelivers-dance-beats-with-a-side-order-of-pan-
flute.html.
75
Joe Coscarelli, Music Producers Explain How They Created a Hit, THE NEW YORK TIMES (Jul. 28, 2016),
https://www.nytimes.com/2016/07/31/arts/music/chainsmokers-flume-clams-casino.html; see also Ben Sisario,
Flume Rises in the E.D.M. World, THE NEW YORK TIMES (Feb. 25, 2015),
https://www.nytimes.com/2015/02/26/arts/music/flume-rises-in-the-edm-world.html.
76
Dani Deahl & Casey Newton, How SoundCloud's Broken Business Model Drove Artists Away, THE VERGE (Jul.
21, 2017), https://www.theverge.com/2017/7/21/15999172/soundcloud-business-model-future-spotify-streaming.
77
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
48
Overall, the future popularity of SoundCloud is uncertain, but it remains a treasure trove
of published songs not available for download that gives Rekordbox and SoundCloud Go+ users
the ability to use songs publicly posted to the website.
Beatport
Beatport was launched in 2004 by DJs in Denver who enjoyed digging through record
crates for music, digitizing it, and using it in their DJ sets.
78
The platform was focused on
working with record labels, especially small dance music record labels, to sell both MP3 and
WAV files to DJs and the electronic dance music community.
79
The sale of WAV files was a
drastic departure from the standard music definition standardized by iTunes because WAV files
are a lossless format.
80
Using lossless files in a DJ set ensures that the DJ is using the best quality
version of the recording available.
81
From Beatport’s conception, the company was focused on
giving great dance music from small independent record labels a platform to be heard.
82
However, Beatport’s mission changed in 2007 when the company accepted a $12 million
investment from a venture capital firm.
83
In 2010, after all three founders of Beatport had left the
company, Beatport began investing heavily in upgrading the platform to have features such as
mixes, DJ profile pages, event listings, live streaming DJ sets, and dance music industry news.
Between 2010 and 2013, Beatport became a cultural hub for DJs and dance music lovers alike
78
Jemayel Khawaja, The Rise and Fall-and Resurrection?-of Beatport, VICE (Jul. 21, 2016),
https://www.vice.com/en_us/article/bmadnw/history-beatport-sfx-jonas-tempell-robert-sillerman-lloyd-starr-
interview.
79
Id.
80
Peter Kirn, No, Beatport's Subscription will not Kill Music - Here's How it Really Works, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works/.
81
Markkus Rovito, What Format Should DJs Buy Music In? A DJ's Guide to MP3, FLAC, WAV, DJ TECHTOOLS
(November 8, 2017), https://djtechtools.com/2017/11/08/format-djs-buy-music-djs-guide-mp3-flac-wav/
82
Jemayel Khawaja, The Rise and Fall-and Resurrection?-of Beatport, VICE (July 21, 2016),
https://www.vice.com/en_us/article/bmadnw/history-beatport-sfx-jonas-tempell-robert-sillerman-lloyd-starr-
interview.
83
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
49
because electronic dance music made its way into popular culture.
84
From 2013 to present day,
amid an acquisition and a subsequent parent company chapter 11 bankruptcy, Beatport’s
relevance plateaued and declined due to the popularity of music streaming.
85
Audiences no
longer had reasons to buy digital downloads from the website, but Beatport remains a platform
for DJs to find and buy music.
86
How the Platforms Work
Beatport
In May 2019, Beatport announced its partnership with Pioneer to integrate Beatport Link
with Rekordbox.
87
Beatport Link is a three-tier subscription based streaming service for DJs that
gives them access to Beatport’s entire library.
88
The tiers differ in price, offline access, and
quality.
89
Beatport Link Subscription
Beatport’s DJ streaming service’s least expensive tier is called “Beatport Link”. Beatport
Link costs $14.99 (plus applicable taxes) per month and includes a “cancel anytime” policy,
access to “curated & custom playlists”, gives the subscriber access to “optimized audio
streaming”, and allows DJs to download music that they bought through Beatport an unlimited
number of times whenever they need to
90
.
91
84
Id.
85
Id.
86
Id.
87
Peter Kirn, No, Beatport's Subscription Will Not Kill Music - Here's How it Really Works, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works.
88
Id.
89
Id.
90
Subscription Plans, BEATPORT, https://www.beatport.com/subscriptions (last visited Apr 17, 2020).
91
Beatport, Beatport LINK - Beginner DJ, YOUTUBE (December 18, 2019), https://youtu.be/uR4vcon-KvU.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
50
Beatport claims that Beatport Link is for beginner DJs.
92
The introduction video shows
many of the major dance music record labels that a Beatport Link user would have access to and
also shows Beatport Link’s pre-made playlist curation and custom playlist curation capabilities.
However, the video claims that Beatport Link allows a beginner DJ to be “party ready” and
shows a DJ playing music at a house party
93
.
94
Many DJs would likely disagree because Beatport
Link’s audio quality is not a high enough resolution to portray the original master recording
properly over the most basic party speakers.
95
One of Beatport’s claims to fame was that it allowed DJs to buy music at a higher sound
quality than was available on platforms like iTunes.
96
According to Beatport’s Director of Artist
and Label Relations, the music streamed through Beatport Link is compressed to 128 kbps,
which is considered a low resolution bit-rate by professional DJs.
97
The Beatport representative
does clarify that the Beatport Link subscription is not meant for professional DJs.
98
Beatport Link Pro & Beatport Link Pro+
The next two tiers, Beatport Link Pro and Beatport Link Pro+ are the more expensive
subscriptions, costing $39.99 and $59.99 per month respectively.
99
The major difference
between the two subscriptions, aside from the cost, is that Beatport Link Pro allows a subscriber
to have 50 songs stored to Rekordbox for offline use.
100
Beatport Link Pro+ allows DJs to store
92
Id.
93
Id.
94
Id.
95
Dan White, A DJ’s Guide to Audio Files and Bitrates, DJ TECHTOOLS (Sep. 26, 2012),
https://djtechtools.com/2012/09/26/a-djs-guide-to-audio-files-and-bitrates.
96
Markkus Rovito, What Format Should DJs Buy Music In? A DJ's Guide To MP3, FLAC, WAV, DJ TECHTOOLS
(November 8, 2017), https://djtechtools.com/2017/11/08/format-djs-buy-music-djs-guide-mp3-flac-wav.
97
Peter Kirn, No, Beatport's Subscription Will Not Kill Music - Here's How it Really Works, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works.
98
Id.
99
Subscription Plans, BEATPORT, https://www.beatport.com/subscriptions (last visited Apr 17, 2020).
100
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
51
up to 100 songs on Rekordbox for offline use.
101
Rekordbox records how many times each song
was played offline and once the device reconnects to the internet, the offline plays are attributed
to the song’s total play count which determines the royalties a song will receive.
102
The other user-facing difference between the two more expensive subscriptions and the
less expensive subscription is the music’s sound quality.
103
Beatport Pro and Beatport Pro+ users
stream music to Rekordbox at 256 kbps in an AAC audio file format, which, for purposes of this
paper, is the same audio quality as a 320 kbps MP3 audio file.
104
Some DJs would argue that this
is the bare minimum acceptable audio quality to use while professionally performing, however,
Beatport has mentioned that audio quality might change with the expansion of 5G network
capabilities in the United States.
105
SoundCloud Go+ Subscription
SoundCloud Go+ is a subscription that allows users to stream music without
advertisements from SoundCloud for $9.99 per month.
106
This is not the platform that allows
music creators to control how their music is heard on SoundCloud.
107
One of the subscription’s
major features is that a subscription allows users to listen to a limited number of songs while not
connected to the internet.
108
The SoundCloud mobile application records how many times the
song was listened to while the device was not connected to the internet and then reports those
101
Id.
102
Staff, Beatport Launches Offline Locker for DJs in Pioneer DJ's rekordbox Public Beta, YOUR EDM (July 4,
2019), https://www.youredm.com/2019/07/01/beatport-launches-offline-locker-for-djs-in-pioneer-djs-rekordbox-
public-beta.
103
Peter Kirn, No, Beatport's Subscription Will Not Kill Music - Here's How it Really Works, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works.
104
Id.
105
Id.
106
More Music, No Limits, SOUNDCLOUD, https://checkout.soundcloud.com/go (last visited Apr 17, 2020).
107
Become a Soundcloud Pro, SOUNDCLOUD, https://checkout.soundcloud.com/pro (last visited Apr 17, 2020).
108
More Music,, No Limits, SOUNDCLOUD, https://checkout.soundcloud.com/go (last visited Apr 17, 2020).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
52
numbers to SoundCloud once the device has reconnected to the internet.
109
The offline plays are
then included in the total play statistics.
110
Offline listening is only available through products
that use IOS, such as an iPhone or iPad, or Android, such as the Samsung Galaxy or the Google
Pixel.
111
The subscription also allows DJs to stream music to compatible platforms including
Rekordbox.
112
DJ platform integration with SoundCloud Go+ comes with two limitations that
are not immediately apparent when purchasing a subscription.
113
First, SoundCloud Go+ does
not allow DJs to record mixes through the digital platform when using music from
SoundCloud.
114
Second, SoundCloud Go+ integration does not allow the DJ to export music to
USBs to be used with CDJs for a non-computer based performance.
115
This means that a DJ is
required to use a computer or smartphone based platform, such as Rekordbox, to use a
SoundCloud Go+ subscription during a DJ set.
Terms of Use
Generally
There are significant differences between Beatport and SoundCloud as platforms and how
each platform creates content. The main difference between the two platforms is that
SoundCloud’s main attraction is user generated content (“UGC”). This means that most of the
109
Play counts for downloading, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/115003562528-Play-counts-for-downloading (last visited Apr 17, 2020).
110
Id.
111
Offline listening with SoundCloud Go, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/115003452307-How-to-save-for-offline-listening (last visited May 5, 2020).
112
Rekordbox, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-us/articles/360035613133-
Rekordbox-Integration (last visited Apr 17, 2020).
113
Id.
114
Id.
115
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
53
music on SoundCloud is content posted by the user rather than submitted by another entity such
as a distributor or a major record label. Although UGC is SoundCloud’s main product,
SoundCloud has also worked with major record labels and distributors to include their catalogues
on SoundCloud’s paid subscription.
116
Beatport, conversely, uses music as the main attraction to its platform, however, none of
the music is UGC.
117
Beatport only works with music distributors to add music to its platform.
118
However, Beatport does allow users to create playlists, which can be an important feature to
customers who want to find new music, and allows Beatport Link users to curate their DJ
performances more easily.
119
This distinction between the platforms will dictate the differences in the terms and
agreements and how copyrights are navigated by each platform.
SoundCloud
SoundCloud’s Terms & Agreements
SoundCloud has multiple sets of terms depending on the service the user would like to
use.
120
Beginning with the general terms of use, the user should not use SoundCloud if the user
does not agree to the terms of use, privacy policy, cookies policy, and community guidelines.
121
For purposes of this research, the only applicable documents are the general terms of use, the
subscription specific terms of use, and the community guidelines.
116
Soundcloud Go Launches: Uniting Music's Past, Present and Future, SOUNDCLOUD (March 29, 2016),
https://press.soundcloud.com/143497-soundcloud-go-launches-uniting-music-s-past-present-and-future
117
How do I sell my tracks on Beatport?, BEATPORT CUSTOMER CARE, https://support.beatport.com/hc/en-
us/articles/200353825-How-do-I-sell-my-tracks-on-Beatport- (last visited Apr 17, 2020).
118
Id.
119
How do I create a playlist?, BEATPORT CUSTOMER CARE, https://support.beatport.com/hc/en-
us/articles/360028442111-How-do-I-create-a-playlist- (last visited Apr 17, 2020).
120
SoundCloud Terms of Use, SOUNDCLOUD (last amended May 25, 2018), https://soundcloud.com/terms-of-use
121
Id. at Acceptance of Terms of Use
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
54
The beginning of the terms of use make clear that the Platform is a hosting service, meaning
that, while SoundCloud does host UGC on its servers, it is not responsible for the contents of the
UGC.
122
The Digital Millennium Copyright Act (“DMCA”) includes copyright enforcement
statutes that allows copyright holders to protect copyrighted work posted online.
123
Included in the
DMCA are safe harbor provisions for internet service providers (“ISPs”) and websites that host
UGC use to avoid contributory infringement.
124
To avoid liability, ISPs and UGC hosting websites
must comply with and implement copyright notice and takedown procedures.
125
SoundCloud
would like to maintain the “hosting service” status under the Digital Millennium Copyright Act
(“DMCA”) because, if SoundCloud follows the requirements of the DMCA, it will not be
considered a contributory infringer if there is a copyright infringement lawsuit brought against an
infringer using the platform.
126
Next, the terms have a section for the user’s use of the platform.
127
According to the terms,
the general user receives a “limited, personal, non-exclusive, revocable, nonassignable and non-
transferable right and license to use the Platform in order to view Content uploaded and posted to
the Website, to listen to audio Content streamed from the Platform”.
128
After the broad licenses
and rights granted to the user by SoundCloud, the registered user is given conditions that require
“strict compliance” for the licenses and rights to remain valid.
129
The two conditions that concern the use of music for DJing purposes are the first two
conditions which may directly contradict the purpose of purchasing a SoundCloud Go+
122
Id. at Description of the Platform
123
See generally 17 USCS 512 (2020).
124
17 USCS § 512(c) (2020).
125
Id.
126
Id.
127
SoundCloud Terms of Use, Your use of the Platform, SOUNDCLOUD (last amended May 25, 2018),
https://soundcloud.com/terms-of-use
128
Id.
129
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
55
subscription for use with Rekordbox DJ. First, section (i) if the “Your use of the Platform” section
states that the User must not do the following:
copy, rip or capture, or attempt to copy, rip or capture, any audio
Content from the Platform or any part of the Platform, other than by
means of download or store for offline listening in circumstances
where the relevant Uploader has elected to permit downloads or
offline listening of the relevant item of Content.
130
This means that SoundCloud Go+ users who use SoundCloud’s catalog for DJing on Rekordbox
are not allowed to record any of their DJ sets for any purpose, even if it is only for personal use.
Second, section (ii) of SoundCloud’s terms of use attempt to limit the use of the music on
SoundCloud to personal use.
131
The section states the following:
You must not adapt, copy, republish, make available or otherwise
communicate to the public, display, perform, transfer, share,
distribute or otherwise use or exploit any Content on or from the
Platform at any and all times, except (i) where such Content is Your
Content at any and all times during your use of the applicable
Content, or (ii) as permitted under these Terms of Use, and within
the parameters set by the Uploader (for example, under the terms of
Creative Commons licenses selected by the Uploader).
132
130
Id.
131
Id.
132
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
56
Broadly, United States copyright law allows rights holders to control reproduction, derivatives,
distribution, public display, public performance, and public transmission of musical works.
133
The
condition that SoundCloud sets forth in this section does not allow a SoundCloud user to use any
music on the SoundCloud catalog for DJ performances in public or via transmission of any kind.
This term is problematic because SoundCloud attempts to protect rights holders while
simultaneously having a partnership with Rekordbox that could be used to perform, share, and
transmit music publicly. Although SoundCloud does give content creators the right to control
aspects of how and where their music is used on the SoundCloud platform, there are few integrated
barriers in the SoundCloud platform that prevent all forms of copyright infringement.
134
The main type of copyright infringement that SoundCloud detects is unauthorized use of
compositions and sound recordings.
135
This process was automated through a content
identification and “copyright strike” system that punishes a user for attempting to upload
copyrighted work that the user does not have proper permission to upload.
136
If a DJ integrated a
SoundCloud Go+ account with Rekordbox and performed any of the music from the SoundCloud
catalog outside of private use, the user would violate SoundCloud’s terms of use, therefore giving
SoundCloud the opportunity to terminate the DJ’s SoundCloud account.
137
SoundCloud Terms of Use – UGC
When agreeing to the terms of use and registering for an account on SoundCloud, if the
user posts original works on the platform, the user grants SoundCloud and other users a “limited,
133
17 USCS § 106 (2020).
134
SoundCloud Terms of Use, Your use of the Platform, SOUNDCLOUD (last amended May 25, 2018),
https://soundcloud.com/terms-of-use.
135
Copyright methods and notifications, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/115003452067-Copyright-methods-and-notifications (last visited Apr 17, 2020).
136
Id.
137
SoundCloud Terms of Use, Your Content, SOUNDCLOUD (last amended May 25, 2018),
https://soundcloud.com/terms-of-use.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
57
worldwide, non-exclusive, royalty free” and fully paid for license to “reproduc[e], transmi[t],
distribut[e], publicl[y] display, public[ly] perform[], mak[e] available . . . and . . . communicat[e]
to the public [] Your Content on the Platform and elsewhere using the Services.”
138
This clause
gives Soundcloud a non-exclusive, worldwide, and royalty free license to the music that users
upload to the platform. It also grants the same rights to platform users which may be one of the
factors in how SoundCloud Go+ is able to integrate with Rekordbox without violating the
platform’s terms of use.
The next section gives the same non-exclusive, worldwide, and royalty free license to any
authorized linked service.
139
A linked service refers to any partnered service, website, applications,
or the like that are authorized by SoundCloud to use or integrate with the platform.
140
After this
broad license is granted to linked services, SoundCloud distances itself from anything done by the
linked services.
141
According to the terms, SoundCloud “is not obligated to ensure the deletion of
Your Content from any servers or systems operated by the operators of any Linked Service, or to
require that any user of the Platform or any Linked Service deletes any item of Your Content.”
142
SoundCloud Representations, Warranties, & Liabilities
By agreeing to SoundCloud’s terms, the user represents and warrants that the content
uploaded to the platform does not infringe on any rights, copyright or otherwise, and that any
content uploaded to the platform by the user will not create any liability for SoundCloud or its
affiliates.
143
138
Id. at Grant of license.
139
Id.
140
Id.
141
Id.
142
Id.
143
Id. at Representations and warranties.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
58
This section’s purpose is for SoundCloud to maintain less liability for the UGC hosted on
its platform. However, the next section discusses liability for content and requires the user to
acknowledge that SoundCloud “plays no active role and gives no assistance in the presentation or
use of the content.”
144
Although the user is required to acknowledge this statement, a copyright
holder posting works to the platform cannot agree to it because SoundCloud has created automated
systems to put the UGC on its apps, linked services, and other affiliated platforms, unless the
automated systems are not considered active roles or assistance.
145
The terms take this a step
further in the section “Third party websites and services” by not guaranteeing or representing any
connection or protection from “External Services” which include linked services such as
Rekordbox and other SoundCloud authorized services including “third party websites, databases,
networks, servers, information, software, programs, systems, directories, applications, products or
services, including without limitation, linked services.”
146
In the “Disclaimer” and “Limitation of Liability” section of the terms, which are written in
all capital letters for emphasis, SoundCloud clarifies that it makes “NO PROMISES,
GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER
(EXPRESS OR IMPLIED) REGARDING” any of its websites, services, applications, content,
linked services, or external services.
147
This means that, if anyone using SoundCloud’s platform,
services, applications, or third party programs misuses a copyrighted work posted as UGC on the
platform, SoundCloud cannot be held responsible for the misuse. Further, SoundCloud limits its
liability to “THE GREATER OF 100 EURO OR THE AMOUNTS (IF ANY) PAID BY YOU TO
144
Id. at Liability for content.
145
Copyright methods and notifications, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/115003452067-Copyright-methods-and-notifications (last visited Apr 17, 2020).
146
SoundCloud Terms of Use, Third party websites and services, SOUNDCLOUD (last amended May 25, 2018),
https://soundcloud.com/terms-of-use.
147
Id. at Disclaimer.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
59
SOUNDCLOUD DURING THE PREVIOUS TWELVE (12) MONTHS FOR THE SERVICES
GIVING RISE TO THE CLAIM.”
148
The section further limits liability to “ANY LOSS YOU
SUFFER WHICH IS NOT A FORESEEABLE CONSEQUENCE OF SOUNDCLOUD
BREACHING THESE TERMS OF USE.”
149
Although the SoundCloud and Rekordbox
integration is protected by the permissions granted to SoundCloud, third party programs, and
SoundCloud users earlier in the terms, combining the partnership with DJ equipment’s recording
and audio output capabilities make copyright infringement through reproduction, derivative work
creation, and digital audio transmission highly foreseeable.
150
SoundCloud Go+ Terms
To use the SoundCloud catalog on Rekordbox, a user must purchase a SoundCloud Go+
subscription.
151
Along with the general terms of use that any registered SoundCloud user must
agree to, the SoundCloud Go+ subscriber must also agree to SoundCloud Go+’s terms.
152
Most of
the additional terms have to do with using SoundCloud Go+ as a paid service, the term, the
renewal, and how SoundCloud will notify the user if changes are made to the subscription.
153
However, the SoundCloud Go+ terms create a new set of authorizations and use limitations.
154
SoundCloud Go+ is unique compared to the rest of the platform because the company
negotiated deals with major record labels to host music on SoundCloud Go+.
155
SoundCloud did
148
Id. at Limitation of Liability.
149
Id.
150
See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
151
Rekordbox Integration, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/360035613133-Rekordbox-Integration (last visited Apr 17, 2020).
152
SoundCloud Go and SoundCloud DJ Terms of Use, SOUNDCLOUD, https://soundcloud.com/go-terms-of-use (last
updated July 8, 2020).
153
Id.
154
Id.
155
SoundCloud Go+ tracks, SOUNDCLOUD HELP CENTER, https://help.soundcloud.com/hc/en-
us/articles/115003453667-SoundCloud-Go-tracks (last visited Apr 17, 2020).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
60
this in an attempt to expand its catalog and make more popular music available to be viable when
competing with Spotify, Apple Music, and other major streaming services.
156
However, hosting
popular music on the platform requires SoundCloud to limit the countries that SoundCloud Go+
is available in and how many devices the subscription service can be used on at a single time.
157
This limitation creates a legal impact because each country has its own copyright royalty reporting,
collecting, and distribution methods, but it also creates a variation on what is available to DJs
based on the DJ’s jurisdiction.
Overall, the terms for SoundCloud generally and for SoundCloud Go+ give the platform,
third party affiliates, and users wide range to use the UGC hosted on the platform. The terms also
highly limit SoundCloud’s liability for any misuse of the UGC, whether the UGC is misused by a
third party or platform users. Although not required by the terms of use, SoundCloud has still
created a royalty structure to pay for music streamed through the platform. However, there was no
reference to royalty payment for streaming or royalty payment when using SoundCloud’s
integration with Rekordbox.
Beatport
Beatport’s Terms and Conditions
Beatport has multiple sets of terms depending on the service the user subscribes to.
158
Beginning with the general terms of use, Beatport does not mention agreeing to any other policies
except those contained in the terms.
159
However, further in the general terms, Beatport requires
156
Id.
157
Id.
158
Beatport Terms and Conditions, BEATPORT, https://support.beatport.com/hc/en-us/articles/215996708-Terms-
and-Conditions (last updated May 13, 2019).
159
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
61
compliance with its cookies policy and its privacy policy, which generally reference data collection
about users.
160
Early in the general terms, the appropriate use of any content used or purchased from the
website is as follows:
Without the prior written consent of Beatport or the applicable
copyright holder, and except as provided in this Agreement, no
Content may be transmitted, distributed, translated, publicly
displayed, uploaded, published, recorded, retransmitted, rented,
sold, distributed, digitized, endorsed, reproduced, altered to make
new works, performed, or compiled in any commercial way. Some
of the Content is "Products," which is certain Content made
available by Beatport for streaming, purchase and/or download. The
Content is only for your personal, noncommercial use, except for
those Products provided for by Beatport Sounds.
161
These clauses are highly problematic because they do not align with Beatport’s reputation as the
place for professional DJs to purchase high quality music audio files to include in their sets.
162
First, according to the terms, the music purchased may not be performed or publicly
displayed.
163
This not only goes against Beatport’s advertised purpose, it does not allow DJs, many
160
Id. at ¶ A.27. Privacy.
161
Id. at ¶ A.2. Content and Products; (emphasis added).
162
Music Business Worldwide, BEATPORT LINK STREAMING SERVICE IS NOW AVAILABLE IN THE PUBLIC
BETA OF PIONEER DJ’S REKORDBOX SOFTWARE, https://www.musicbusinessworldwide.com/beatport-link-
streaming-service%E2%80%8B-is-now-available-in-the-public-beta-of-%E2%80%8Bpioneer-dj%E2%80%8Bs-
rekordbox%E2%80%8B-software/ (last updated July 3, 2019).
163
Beatport Terms and Conditions, ¶ A.2. Content and Products, BEATPORT, https://support.beatport.com/hc/en-
us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
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of whom are professional DJs, to perform the high quality sound files that they purchased
specifically for performances.
164
Second, this clause does not allow any of the music purchased
or streamed from the website to be altered to create new or derivative works.
165
DJing is an art
form that requires taking sound recordings, manipulating them, and playing multiple sound
recordings over one another at the same time. Abiding by this clause is nearly impossible for any
DJ using content purchased or streamed from Beatport. Third, the clauses do not allow any of the
content purchased or streamed from Beatport to be transmitted, retransmitted, recorded, or
reproduced.
166
These restrictions not only have implications for the Beatport user, but also for third
parties to this agreement. For example, if a music promoter who hires a DJ to perform at a music
festival and the promoter wants to live stream the performance for viewers on YouTube, the DJ
would not be able to maintain its agreement with Beatport for multiple reasons. First, the DJ set
could not be transmitted or retransmitted to YouTube. Second, the DJ could not maintain the
agreement if the set were recorded for on-demand viewing at a later time. Third, reproduction of
any of the content purchased on Beatport would occur in transmission, retransmission, and
recording of the DJ set. Although written consent can be given by Beatport or the copyright holder,
receiving consent each time a DJ would like to perform music that was purchased on Beatport is
not reasonable for the DJ, the copyright holder, or Beatport.
The second sentence of the above section states that content purchased or streamed from
Beatport is meant only for the user’s “personal, noncommercial use”.
167
This clause defies
164
Under each plan’s details, the file type is included, and Mp3s of any kind are not typically considered “high
quality” due to the compression. See Markkus Rovito, What Format Should DJs Buy Music In? A DJ’s Guide To
MP3, FLAC, WAV (Nov. 8, 2017) https://djtechtools.com/2017/11/08/format-djs-buy-music-djs-guide-mp3-flac-
wav/.
When playing on high-end nightclub systems, lossless file formats sound better. See id.
165
Beatport Terms and Conditions, ¶ A.2. Content and Products, BEATPORT, https://support.beatport.com/hc/en-
us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
166
Id.
167
Id.
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Beatport’s reputation as the place to buy “club-ready” audio files, but also goes against the
advertised and promoted purpose of purchasing a Beatport Link subscription.
168
According to
Beatport Link’s introduction videos, the subscription plans are built for DJs with different
experience levels.
169
The introduction videos for the Beatport Link subscription show a woman
learning to DJ in her bedroom and later on performing for a few friends at a house party.
170
Performing music at a house party can still be considered private, non-public performance use of
the content purchased or streamed from Beatport. However, the introduction videos that promote
Beatport Link+ and Beatport Link+ Pro show multiple DJs performing at nightclubs and other
public events.
171
According to the general terms of the Beatport user agreement, performing the
music purchased or streamed from Beatport in the advertised manner would breach the user
agreement and would give Beatport the right to terminate the user’s account.
172
The discrepancy
between how Beatport advertises content use and how the general terms of use do not allow public
performance of the same content may have false advertising implications.
The proper use of the content purchased or streamed from Beatport is re-stated in the
“Limitations of Content Usage and Copyright” section of the general terms of use.
173
The section
states the following:
Except as otherwise provided herein, you may not copy, reproduce,
modify, rent, lease, broadcast, download, transmit, distribute or
otherwise disseminate any Streams or Downloads or other Content
168
Dan White, A DJs Guide to Audio Files and Bitrates, DJ TECHTOOLS (Sep. 26, 2012),
https://djtechtools.com/2012/09/26/a-djs-guide-to-audio-files-and-bitrates/.
169
Beatport, LINK- Beginner DJ, YOUTUBE (Dec. 18, 2019), https://youtu.be/uR4vcon-KvU.
170
Id.
171
Beatport, LINK - USB DJ, YOUTUBE (Dec. 19, 2019), https://youtu.be/mHdxOkQjGXo.
172
Beatport Terms and Conditions, ¶ A.2. Content and Products, BEATPORT, https://support.beatport.com/hc/en-
us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
173
Beatport Terms and Conditions, ¶ A.17. Limitations of Content Usage and Copyright, BEATPORT,
https://support.beatport.com/hc/en-us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
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contained on the Site except for your own personal, non-commercial
use, unless otherwise provided for herein. Any unauthorized
copying, distribution, use or sharing is not permitted by this
Agreement or applicable provisions of the United States Copyright
Code, and is in violation of U.S. and international copyright and
intellectual property laws.
174
The terms reiterate the limitations placed on the content purchased and streamed through
Beatport’s services. The following section titled “Prohibited Uses of Content” again reiterates that
the user is not allowed to make derivative works or copies of the content purchased or streamed
from Beatport.
175
However, the section emphasizes its prohibition on distribution of the works by
specifically mentioning file sharing. The sections state the following:
YOU MAY NOT UPLOAD DOWNLOADS OR STREAMS TO
THE INTERNET. PEER-2-PEER FILE SHARING IS STRICTLY
PROHIBITED. Any other manner of network file sharing and
transfer of Downloads, Streams or Previews to devices for such
purpose is expressly prohibited and is a violation of U.S. and
international copyright law.
176
Beatport needs to emphasize the importance of banning P2P file sharing because its digital
distribution of music is prone to illegal file sharing.
Beatport does not have its own music player that functions in the same way that Apple used
iTunes. iTunes sold copies of lower-quality audio files and used file types that Apple could track
174
Id.
175
Id.
176
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
65
using iTunes and other computer software.
177
Beatport includes metadata in each audio file that it
sells including information that allows Beatport to identify who the original purchaser was of the
song.
178
Unfortunately, the metadata is easily removable by users which allows users of the
website, including DJs, to share high quality audio files of the songs purchased from Beatport.
179
Further in the general terms is a section titled “Violation of Intellectual Property Rights”.
180
This section includes the steps that the user allows Beatport to take if Beatport is notified or
suspects that the user is violating intellectual property rights by using Beatport’s services or
content.
181
As discussed before, the music purchased on Beatport is for personal use only and is
not permitted to be used for public performance, live streams, or recordings.
182
If music purchased
or streamed from Beatport is used outside of personal, non-commercial use, Beatport would have
the right to suspend or terminate the user’s account.
183
Terminating or suspending the account
would deny the user access to music purchased on the platform.
184
In the following section, the
terms state that Beatport had the right to share user information with authorities to enforce parts
of the agreement, including the intellectual property provisions.
185
Lastly, the general terms of use discuss indemnification, waiver, and liability.
186
The terms
require the user to indemnify Beatport and those associated with Beatport for all causes of action
177
Adam L. Penenberg, Digital Rights Mismanagement, SLATE MAGAZINE (Nov. 14, 2005),
https://slate.com/technology/2005/11/how-apple-cashes-in-on-piracy-prevention.html.
178
Beatport Pro Mac, Getting Started, BEATPORT, https://www.beatport.com/mac/gettingstarted.html (last visited
Apr 17, 2020).
179
Id.
180
Beatport Terms and Conditions, ¶ A.30. Violation of Intellectual Property Rights, BEATPORT,
https://support.beatport.com/hc/en-us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
181
Id.
182
Id. at ¶ A.2. Content and Products.
183
Id.
184
Id. at ¶ A.30. Violation of Intellectual Property Rights.
185
Id. at ¶ A.31. Enforcement of These Terms.
186
Id. at ¶¶ A.33. Indemnity and Waiver, A.35. Governing Law, A.37. Disclaimers and Limitations of Liability.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
66
for the user’s breach of the user agreement.
187
It is not until the last paragraph of the terms where
Beatport waives all liability in connection with use of its website or services.
188
Beatport Link Terms of Use
Beatport Link likely has its own terms because the user is interacting with Beatport by
paying for a service that is only usable through third party partner services, and there is a monthly
fee paid to Beatport after the initial trial period. According to the Beatport Link terms “If there is
any conflict between those general terms and conditions and these LINK Terms, these LINK
Terms shall apply for your use of the LINK service.”
189
This gives the seven sections that make
up the Beatport Link terms power over the thirty-seven sections of general terms.
Beatport Link is dependent on third party programs, such as Rekordbox, to function as a
streaming platform for DJs.
190
Due to this reliance, the Beatport Link terms do not allow Beatport
to be reliable if a third party platform decides to no longer be compatible with Beatport Link.
191
If
a third party program were no longer compatible with Beatport Link, the terms include that
“Beatport will attempt to preemptively notify all LINK subscribers via email. If you have opted-
out of email communication, you may not receive the notification.”
192
This means that some users
may not be notified prior to a third party no longer supporting the user’s paid subscription to
Beatport Link, and the terms indemnify Beatport from that notification responsibility.
After discussing third party programs and subscription fees, the Beatport Link terms have
a four-sentence section called “Your Use of LINK”.
193
The section states the following:
187
Id. at ¶ A.33. Indemnity and Waiver.
188
Id. at ¶ A.37(f) Disclaimers and Limitations of Liability.
189
Id. at ¶ D.1. LINK Terms and Conditions.
190
Id. at ¶ D.2. Third-Party Partner Applications and Devices.
191
Id.
192
Id.
193
Id. at ¶ D.4. Your Use of LINK.
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67
LINK enables you to listen to full streams of tracks from Beatport’s
catalog of content via the interface of certain Partner Company’s
products. Your subscription to LINK will grant access to LINK
wherever it is available. Beatport Sounds content will not be
available on LINK.
Any content by a Supplier that has expressly opted out of the LINK
subscription service, will not be available. Beatport is not
responsible for content that is not available to LINK subscribers and
your only remedy in such situations is to choose not to renew your
subscription the following month.
194
Aside from the subscription details, these are the only parameters given for a user’s use of Beatport
Link.
195
First, the section states that the tracks from Beatport’s Catalog are meant to be “listen[ed]”
to.
196
Although much of DJing is listening to music, using the phrase “listen” does not incorporate
the interaction that DJs have with the music that is being played or that is being prepared to be
played. Using a phrase like “listen” implies that the user is meant to use Beatport Link like a
traditional music streaming service, however, Beatport Link is advertised as a subscription for
streaming music for use in DJ sets.
Next, it is notable that record labels who distribute music through the platform have the
right to opt-out of its music streaming through Beatport Link.
197
Each record label that opted-in
194
Id.
195
Id.
196
Id.
197
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
68
receives a proportionate amount of money for the amount of times its records were played out of
all of the overall streams on the platform.
198
Some record labels may not want to include their
music on Beatport Link because the label may make more money from selling music on Beatport
to a small but dedicated fanbase. If the music is available to stream, the fans can still listen to the
music, but the record label will receive significantly less money than it would have from a digital
purchase.
The next section in the Beatport Link terms discusses the prohibited uses of the service.
199
The first paragraph states “Content streamed on LINK is intended for your personal use only. Use
of LINK for public performance purposes will require additional licensing, which is not included
as part of your subscription.”
200
As discussed in the general terms, the music purchased through
Beatport is meant for personal non-commercial use. The Beatport Link terms are meant to preempt
the general terms when applied to Beatport Link, however, the Beatport Link Terms do not specify
between commercial and non-commercial use.
201
Therefore, the general terms regarding non-
commercial use apply to Beatport Link.
202
This means that professional DJs cannot use Beatport
Link in a commercial or professional setting without breaching Beatport’s and Beatport Link’s
terms of use.
For example, a DJ would break the terms of use if the DJ were hired by a venue or a
promoter to perform a DJ set and the DJ used Beatport Link during that set. The paragraph also
recognizes that DJs require further licensing to publicly perform music streamed through Beatport
198
Peter Kirn, No, Beatport's subscription will not kill music - here's how it really works, CDM CREATE DIGITAL
MUSIC (May 17, 2019), https://cdm.link/2019/05/no-beatports-subscription-will-not-kill-music-heres-how-it-really-
works/.
199
Beatport Terms and Conditions ¶ D.5. Prohibited Use of LINK , BEATPORT, https://support.beatport.com/hc/en-
us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
200
Id.
201
Id. at ¶ A.2. Content and Products.
202
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
69
Link, however, it does not give instructions to the user on how to obtain those rights.
203
Instead, it
is up to the user to understand that performances at venues or on platforms require the hosting
venue or platform to have the correct license for each song played; the terms only state that public
performance rights cannot be obtained through Beatport.
The following two paragraphs of the “Prohibited Use of LINK” section of the Beatport
Link terms discuss the amount of devices permitted for a single account and account sharing
restrictions.
204
Beatport allows a Beatport Link account to be connected to up to five devices, but
will only support four concurrent streams at one time.
205
This means that five separate devices
with a compatible third party application can be signed into a single Beatport Link account at the
same time, but only four songs can be streamed from a single account at one time.
206
The amount
of songs streamed at one time is likely limited to four because standard professional DJ equipment
typically has between two and four CDJs and a mixer with up to four channels, each channel
dedicated to a different CDJ. The next paragraph gives Beatport the right to suspend or terminate
accounts based on account sharing, but limiting a subscription to four concurrent streaming songs
discourages account sharing because if more than two people are using a Beatport Link account
on two different systems, each person will have a maximum of two songs to stream at once, which
is the minimum required for a DJ to play a set.
207
The final two sections of the Beatport Link terms discuss access to past purchases on
Beatport and Beatport charts.
208
First, when a user purchases a Beatport Link subscription, the user
is given an automatic subscription to Beatport Cloud at no extra cost. Beatport Cloud allows users
203
Id. at ¶ D.5. Prohibited Use of LINK.
204
Id.
205
Id.
206
Id.
207
Id.
208
Id. at ¶¶ D.6. Beatport CLOUD Accessbility, D.7. Beatport Charts and Plays.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
70
to download a purchased song from the user’s account an unlimited amount of times.
209
Beatport
Cloud is important because it allows users to re-download music that the user had not initially
brought along for a DJ set.
210
The next section informs the user that streams through Beatport Link
do not have an impact on Beatport Charts that show the popularity of a song and if Beatport
believes plays are made only to increase a song’s revenue share of the subscription fee, those plays
will not be applied to a song’s streaming revenue.
211
Both of these ensure a song’s popularity is
not falsified through fraudulent streaming practices, and the terms state that “Beatport will not
share any data that was the basis for such decisions.”
212
Overall, Beatport’s terms of use run into two major issues. The first is that Beatport is
known for distributing high-quality versions of songs that are performance ready, however, any
content purchased through Beatport is meant for personal, non-commercial use. Second, Beatport
Link Pro and Beatport Link Pro+ are marketed as music streaming programs for DJs to use during
public performances, but the terms of use do not allow DJs to use the music beyond personal use.
The Beatport Link terms allow DJs to publicly perform music in personal use non-commercial
settings, however, this type of performance is not how the professional DJ Beatport Link
subscriptions are marketed.
Rekordbox’s End User Agreement
Rekordbox’s end user agreement (“EUA”) is brief and only has a single set of terms for
the program. However, Rekordbox has a tier-based subscription service that unlocks more features
209
Id. at ¶ D.6. Beatport CLOUD Accessiblity.
210
beatportcloud, BEATPORT, https://www.beatport.com/get-cloud (last visited Apr 18, 2020).
211
Beatport Terms and Conditions ¶ D.7. Beatport Charts and Plays, BEATPORT, https://support.beatport.com/hc/en-
us/articles/215996708-Terms-and-Conditions (last updated May 13, 2019).
212
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
71
within the program.
213
The lowest tier is free and comes with basic analysis, DJ, and export
tools.
214
The top-tier subscription costs $9.99 USD per month and includes lyric features, video
features, live remixing effects, DJ and export tools, as well as cloud music storage library syncing
capabilities.
215
The lyric feature in the top-tier subscription is the first copyright concept covered
in the program license section of the EUA and it has unique copyright implications compared to
solely playing or streaming a song.
216
The lyrical feature is meant for personal, non-commercial use and the EUA does not allow
the user to “reproduce (other than as authorized for your own personal usage), publish, transmit,
distribute, publicly display, rent or lend, modify, create derivative works from, sell or participate
in the sale of or exploit in any way, in whole or in part, directly or indirectly, any of the Lyrics so
provided.”
217
While DJing as a profession takes many forms, concert and club based DJs do not
generally display lyrics to songs during a performance. However, DJing as a profession takes place
beyond nightclubs and concerts. Many DJs perform for parties and events such as corporate events,
b’nai mitzvot, or sweet sixteen parties. It is more common to display lyrics to songs during these
performances, and if the DJ used Rekordbox’s database of over 2 million songs to display lyrics
during one of these performances, it would violate the EUA.
218
The EUA specifically addresses
“karaoke” and “sing-along” rights, and makes the user recognize that these are not part of the
license granted by purchasing the top-tier subscription.
219
213
Rekordbox Software End User Agreement, (April 2020) https://rekordbox.com/en/download/. The EUA used for
this analysis is the most recently available version as of April 16, 2020. AlphaTheta no longer owns Pioneer DJ, and
therefore Rekordbox, but is still named as the owner of Rekordbox in the EUA.
214
Plan, REKORDBOX, https://rekordbox.com/en/plan/ (last visited Apr 18, 2020).
215
Id.
216
Id.
217
Rekordbox Software UAE, supra note 214.
218
Id.
219
Id.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
72
The final paragraph of the program license section is titled “No Support.” This section
states that “AlphaTheta has no obligation to provide support, maintenance, upgrades,
modifications or new releases for the Program or Documentation under this Agreement.”
220
This
means that if the user faces any issues with the program AlphaTheta is not required to support the
customer in any way. AlphaTheta’s lack of duty is then amplified in the next section stating that
the EUA is “WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AND YOU AGREE
TO USE [REKORDBOX] AT YOUR SOLE RISK.”
221
These two sections together are
AlphaTheta’s attempt to completely remove any expectation of AlphaTheta beyond providing the
Rekordbox software.
222
The last section of the EUA addresses the “Restriction to Infringements of Copyright
Protected Data Owned by [a] Third Party.” The section discusses copyright infringement in broad
strokes by stating the following:
When using the program, You must agree on the following:
(a) To follow copyright protection laws, rules and regulations
designated in every country and international treaties;
(b) To legally obtain music data used in the Program;
(c) Not to bypass or decode Digital Rights Management technology
implemented to the data.
In addition, you may not copy music data beyond the extent of
private use. You may not give or transfer music data to third party.
You may not share or intend to share the media or storage used to
220
Id. at 25.
221
Id. at 3.
222
In section 8 of the EUA, AlphaTheta limits its liability to have essentially no liability and limits the amount of
collectable money to the amount of money paid to the company or its subsidiary programs.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
73
save music data with others. You may not save music data to media
or storage which allows access to third party. You may not provide
live distribution of such music data to third party.
223
The language used to address copyright infringement is likely broad because it needs to cover
jurisdictions across the world rather than being aimed at a single jurisdiction. The terms are vague
as to what “music data” means. Contextually, music data appears to mean the analysis that
Rekordbox does of any sound recordings. The EUA likely addresses music data rather than music
because Rekordbox does not supply any music, and the only information it supplies to the user is
the program’s analysis of the music provided by the user or selected by the user from a streaming
platform’s catalog.
Overall, the EUA terms do not reference the sound recordings that Rekordbox is meant to
analyze and interact with. The only references to music are the lyric service provided by
Rekordbox for a paid subscription and the analysis data created by Rekordbox when analyzing
sound recordings provided by the user or provided by a compatible streaming service. According
to the EUA, aside from the lyric service, there is no implied or expressed restriction on using
Rekordbox for commercial purposes.
Conclusion
Overall, the partnership between SoundCloud and Rekordbox and the partnership between
Beatport and Rekordbox need to be analyzed individually. Both SoundCloud and Rekordbox have
requirements regarding personal non-commercial use, but the companies interact with the concept
differently.
223
Id. at 9.
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
74
Beginning with SoundCloud, the terms are explicit that the platform is meant for personal
non-commercial use, and has taken steps to ensure that copyrights are not infringed. First, if a
SoundCloud Go+ user integrates SoundCloud into Rekordbox, the user loses key functions
including recording a set that includes music streamed from SoundCloud. Disabling this function
protects SoundCloud from liability for copyright infringement.
224
Although digitally recording a
set through Rekordbox is not the only means of recording a DJ set, disabling this function requires
the DJ to take steps beyond SoundCloud or Rekordbox’s control to record a set.
Next, SoundCloud’s play count for music streaming through SoundCloud Go+ is combined
with songs streamed through the Rekordbox integration.
225
This means that a stream through the
Rekordbox integration pays the same amount and type of royalties that are paid for a stream made
through the SoundCloud platform. No additional royalties need to be paid to rights holders because
the user agrees that the use of SoundCloud’s catalog will only be for personal use. By integrating
with Rekordbox, SoundCloud is not changing any part of its streaming service, instead, it is
allowing the subscriber to stream the catalog through a different medium for personal use.
Lastly, SoundCloud advertises the partnership with Rekordbox in a manner that does not
go beyond the term’s intended use of the SoundCloud Go+ subscription. Information about the
partnership published by Rekordbox or SoundCloud focuses on use of the platform integration and
subscription fees.
226
Although the partnership is meant for DJs, the SoundCloud Go+ terms and
the partnership advertising is not misrepresented as a professional tool for commercial use.
224
See generally, Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
225
SoundCloud Help Center, How much will I be paid for SoundCloud Monetization?, SOUNDCLOUD,
https://help.soundcloud.com/hc/en-us/articles/360010335033-How-much-will-I-be-paid-for-SoundCloud-
Monetization (last visited Apr 17, 2020).
226
Pioneer DJ, Rekordbox ver. 5.6.1 update brings support for Beatport LINK and SoundCloud Go streaming
services, YOUTUBE (Sep. 10, 2019), https://www.youtube.com/watch?v=WdcfD423ad8; SoundCloud Help Center,
Rekordbox; SOUNDCLOUD, https://help.soundcloud.com/hc/en-us/articles/360035613133-Rekordbox-Integration
(last visited Apr 18, 2020).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
75
Beatport’s terms of use are explicit that purchasing music or streaming music from the
platform is for personal use. The Beatport Link terms notify the user that performing the music
available to the user through Link will require further licensing that Beatport does not provide.
With the possibility of contradiction between Beatport’s general terms and Beatport Link’s terms,
Beatport Link’s terms preempt the general terms which may reconcile DJs public performance
capabilities. Generally, venues pay for a public performance license through PRO’s such as
ASCAP and BMI.
227
If the DJ is abiding by the other terms and properly paying for a Beatport
Link subscription, all of the applicable royalties are paid so long as the performances are not
recorded or transmitted. Public performance royalties are paid mostly by the venue, but in part by
Beatport, the mechanical license is paid for by the Beatport Link subscription pool, and royalties
are paid to the record label for use of the master recording by the Beatport Link subscription pool.
Although public performances are legal through Beatport Link, recording and transmitting
works that were purchased on Beatport or streamed through Beatport Link violates the terms of
use. This means that DJs are not allowed to perform DJ sets that are streamed or recorded through
internet platforms, broadcast or recorded through television platforms, or transmitted or recorded
through radio platforms while using music purchased from Beatport or music streamed through
Beatport Link. These types of performances were not advertised in the introduction videos to the
service; however, it is common for promoters to stream or record DJ sets and it is common for DJs
to stream DJ sets over platforms like YouTube or Twitch.
There are multiple ways in which professional and amateur DJs alike could violate the
terms of use while performing a DJ set using Beatport Link, however there is a legally sound path
227
Why ASCAP Licenses Bars, Restaurants and Music Venues, ASCAP, https://www.ascap.com/help/ascap-
licensing/why-ascap-licenses-bars-restaurants-music-venues (last visited Apr 17, 2020).
CYBARIS®, AN INTELLECTUAL PROPERTY LAW REVIEW
76
available to the user. Overall, Rekordbox’s partnerships with SoundCloud and Beatport are legally
sound and empower DJs to broaden their musical scope through having vast catalogs available at
their fingertips. Like many groundbreaking music technologies, both Beatport Link and
SoundCloud Go+ give users the ability to infringe on copyrights of musicians, but terms of use do
not permit users to commit infringement without violating the user agreement. Beatport and
SoundCloud should continue to evaluate their copyright enforcement tools and determine better
ways to enforce the user agreement and protect the copyrighted works that are the basis of their
music platforms.
Cybaris®
Cybaris®, an Intellectual Property Law Review, publishes non-student articles and
student comments on all areas of intellectual property law, including patents,
copyrights, trademarks, licensing, and related transactional matters.
mitchellhamline.edu/cybaris
Intellectual Property Institute
Cybaris® is a publication of the Intellectual Property Institute at Mitchell Hamline
School of Law.
mitchellhamline.edu/ip
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