Nielsen’s Soundscan Crackdown: The Numbers Are In, And They’re Not Good

2nielsenshock-thumb.jpgLast week, we reported that Nielsen Soundscan–the company responsible for tracking record sales–had sent cease-and-desist letters to two websites, claiming that the sites had illegally published Soundscan data. We thought this was a little strange, because 1) several publications and news outlets that don’t have Soundscan access regularly report Soundscan numbers: and 2) even though we’re not lawyers, we were always fairly certain that you can’t copyright a fact.

As it turns out, legal-watchdog site Chillingeffects.org obtained a copy of one of the C&D letters, which includes actual Soundscan numbers. After the click-through, a document that will depress you in a variety of ways.

Here’s an excerpt from the letter, which was sent January 16th to absolutepunk.net:

Sent via: email

Re: ABSOLUTEPUNK.NET – Notice to Cease and Desist

I am the attorney for Nielsen SoundScan (“SoundScan”), and it has recently come to our attention that your company, ABSOLUTEPUNK.NET, is publishing Nielsen SoundScan’s valuable proprietary data (“Data”) without any authorization or license from SoundScan. Specifically, your web site, www.absolutepunk.net , published the following Data on your web site on January 11, 2007, without permission:

Soundscan Results: January 11th, 2007

Posted on 01-11-07 by Jason Tate

Here are the selective SoundScan numbers for last week (and total sold).

Dreamgirls – Soundtrack : 66,355 (451,993)

Akon – Konvicted: 63,699 (1,221,730)

Daughtry – Daughtry: 55,916 (1,176,949)

Various – Now 23: 48,094 (1,844,522)

Beatles – Love : 44,427 (1,141,062)

Nickelback – All The Right Reason: 38,841 (4,684,196)

Fray – How To Save A Life: 36,426 (1,723,282)

My Chemical Romance – Black Parade: 32,809 (797,160)

Jay-Z – Kingdom Come: 31,904 (1,238,703)

Mayer, John – Continuum: 28,591 (1,218,312)

U2 – U218 Singles: 24,829 (525,520)

30 Seconds To Mars – Beautiful Lie: 22,588 (700,813)

Incubus – Light Grenades: 21,095 (418,981)

Switchfoot – Oh! Gravity : 20,853 (64,027)

Red Hot Chili Peppers – Stadium Arcadium: 20,620 (1,749,574)

Game – Doctor’s Advocate: 20,132 (771,806)

All-American Rejects – Move Along: 19,912 (1,734,310)

Snow Patrol – Eyes Open : 19,855 (825,896)

Killers – Sam’s Town: 18,743 (953,276)

Keep in mind that the amount in parenthesis is the total amount sold. The letter includes five whole weeks of sales data, and then ends with:

Nielsen SoundScan’s Data is the valuable, exclusive, proprietary, copyrighted property of SoundScan and your organization’s blatant disregard of SoundScan’s ownership in and to the Data is a serious infringement of SoundScan’s intellectual property rights under Federal and State copyright laws, and can result in your organization paying statutory damages in excess of $150,000 per infringement.

Notice is hereby given that Nielsen SoundScan views this copyright infringement with the utmost seriousness and, unless you immediately cease and desist from using SoundScan’s Data, and confirm that you have, and will continue to desist from this and any other infringement of SoundScan’s rights in the future, SoundScan shall pursue all of its legal and equitable remedies against you.

Again: We are not lawyers, but mere music geeks who believe that Soundscan figures are an imperfect way to measure the state of the record industry (which, if these numbers are accurate has gone from bad to worse to ledge-jumpingly horrible). But it seems as though this questionable copyright crackdown is meant to take advantage of smaller outlets that lack extensive legal resources, hoping that no one will put up a fight. Maybe Nielsen realizes that the same record labels that pay so much for their sales info are ailing, and so the company is doing whatever it can to cover up the industry’s sad state of affairs. But no matter how many C&D letters they send out, and how many games of legal Whack-A-Mole they play, they can’t hide the fact that the new Switchfoot has sold a mere 64,027 copies.

SoundScan-ing for posted data [Chillingeffects.org]

idolator
  • DavidWatts

    Wow. Chris Daughtry outselling a pointless Beatles retread? If we can’t count on pointless Beatles retreads to sell, what CAN we count on? We might as well start wearing hats on our feet and letting hamburgers eat US.

  • nosebleed

    well, there is nothing punk about posting soundscan results – at all.

    unless it’s to cry sell out in some manner.


    that site prety much deifies any and all artists that are shouldered into the youth market – and bolsters these facts such as scan data to indentify with how big these artists are — i don’t think Cold War Kids care about their sound scans all that much…

    as long as the hype machine keeps churning, and they sell out venues — soundscans aren’t going to be entirely relevant in any “scene” removed from the major POP / FM markets…

    most bands would rather have a full venue at every show – than a top 200 record in billboard if they do consider themselves “punk” by any means

    right?

    or at least.
    i would hope so.


    but what do i know anymore.

    people need to actually buy the records they supposedly love.
    in fact, i know 4 out of 5 people that may read this comment downloaded their “top ten” of the year. and didn’t pay for the records in question.

    so — are you part of the problem or the solution?

    and don’t give some diatribe about buying a ticket to the show equating to the same as stealing their record.
    it’s not.

    it’s pigeon logic.

    you get what you give.

    and most everyone, is shoveling bullshit directly into their mouths.

  • Deadly Tango

    Some quick legal thoughts…

    I generally agree that a fact can’t be copyrighted. It’s well established in the US that the “sweat of the brow” (the effort that goes into establishing or identifying a fact) does not justify a claim of copyright. The line between “fact” and “expression of that fact” can get a little fuzzy sometimes, especially if you’re talking to folks who deal more in EU law (where there are separate protections for database content as opposed to organization).

    A fact can be a “trade secret” and therefore protected under unfair competition laws. The owner needs to treat the fact as a secret (e.g. limiting access, confidentiality agreements), however. Once the “secret” is revealed, the legal protection disappears (unless you can argue that the revelation was wrongful in the first place).

    The strongest claims are in the area of “misappropriation” (by the blogs) and breach of license (by the SoundScan leaker/source). The blogger had no right to post the information because he or she isn’t a subscriber, and the source of the information breached the Nielsen license agreement that allowed access to the data in the first place. Not as much fun as crying “statutory damages,” but likely more supportable.

    Finally, is it possible that the SoundScan numbers are not merely the sum of all reported sales? If there’s something else going on behind the scenes (weighting of reporting sources, interpolations to account for non-reporting sites, etc.), then SoundScan reports may have greater coverage under copyright…

  • 30f

    “the state of the record industry (which, if these numbers are accurate has gone from bad to worse to ledge-jumpingly horrible).”

    Things are definitely NOT looking up in the sales department nor in the music video world. From hip and cool production houses closing to the dimming prospects for all the Gondry (and even Gourley) wannabes out there.

    January is usually not a “big” sales month, but that is ridiculous. It’s almost like Tower Records knew what they were doing.

  • JDR

    that switchfoot number was surprising. I knew they didn’t sell like they used to, but … wow.

    It’s too bad, because it’s not a bad album.

  • MikeBrownDelendaEst

    Finally, is it possible that the SoundScan numbers are not merely the sum of all reported sales?

    Correct – this is not just a tally, since they don’t have access to data from every record selling venue in the US.

  • mackro

    This report speaks more about Soundscan being moot than anything else.

  • mike a

    Sean’s pretty much on the money, but if I remember my copyright law correctly (and that’s not a sure thing), Soundscan can protect its data as proprietary as long as it’s an “original” work. In other words, you can’t copyright the phone book since you didn’t create the phone numbers. But if SoundScan is collecting the data using its own system (which appears to be the case), then there’s a stronger argument in its favor. (Which doesn’t stop letters like this from being obnoxious, of course

    I do question the idea that “once the ‘secret’ is revealed, the legal protection disappears.” Even if that’s true, I’d imagine SoundScan’s user agreement stipulates all kinds of dire consquences should the subscriber dare make the numbers public. Does that not allow SS to keep its protection and place the onus on the customer not to share it?

  • blobby

    I think that from here on out, Sound Scan should be referred to as “SS.”

    Too soon?

  • Deadly Tango

    Mike, we’re on the same page. The copyright part of the C&D may be justified if SoundScan’s methodolgy is sufficiently original that they can claim a copyright in the content of the report. The copyright claim also allows the attorney to bring the “$150k per infringement” threat.

    On the trade secret side, it’s perfectly legal to reverse-engineer and publish. It’s not legal to steal and publish the trade secret. That’s why the real meat of this C&D is either breach of license (for a legitimate SoundScan subscriber who distributed or published data in violation of the subscription agreement) or misappropriation / unfair competition (for someone who has no rights to the data but still obtains and publishes it). There are no guaranteed damages for those claims — which brings us back around to the copyright claim as a way to swing the hammer.

  • hsimmmel

    soundscan numbers ARE definitely weighted – it’s not just the number of units sold. they are not facts – sorry if it works against the site but it’s worth reiterating, soundscan numbers are not facts.

  • mitc1109

    I think the Switchfoot numbers are skewed. According to billboard.com, Oh, Gravity sold 63,000 units in the first week of release so how the total sales could be 64,027 after selling roughly 21,000 in January means someone had it wrong.
    My thought is that if their total is 64000 after three weeks of release (with 21,000 moving in the 2nd week), there is no way it could have sold enough to be the #18 album its first week of release.

  • MyOwnDrummer

    Hasn’t a precedent already been long established? Soundscan data of this kind has been reported in the media for years without objection.