Copyright Talk

Funny how things happen sometimes. Last week I wrote about clubs and other businesses needing to get licenses from the performing rights societies to play copyrighted music. Now we hear that yesterday ASCAP and a number of music publishers filed federal infringment lawsuits against 26 nighclubs, bars and restaurants for failing to obtain the required licenses.

According to the ASCAP press release, all of the businesses (including one in my hometown of Austin, Tx, the self-proclaimed “Live Music Capital of the World) had been contacted numerous times by ASCAP about the need to obtain a license or cease playing copyrighted music. I’m sure at least some of these lawsuits will turn into disputes over whether the club was actually contacted or not, but my past experience is that ASCAP does actually do a pretty good job of outreach with businesses, trying to educate them on the use of music and the need for licenses before taking the fairly drastic step of litigation.

Check out the ASCAP press release to see if any of the clubs are in your town.

American Universities are starting to get their legs under them in the student file sharing battle. In one corner we have big media groups - the MPAA, RIAA, and Hollywood in general. In another corner we have vast numbers of students who allegedly rob the American economy of millions of dollars each year by illegally downloading copyrighted music and movies - while they are in school and supposed to be studying, no less!

And right smack in the middle of the ring, being tossed about and spun this way and that, are the Universities.

But two recent developments indicate the Universities may be finally forming a coherent opinion on their role in the fight. First, we begin hearing that Universities - including U of Wisconsin, U of Washington, U of Kansas, and U of Nebraska, among others - will not assist the RIAA in legal action against their students by voluntarily passing on letters to users of their computer network - users the Universities themselves would have to identify. By getting the Universities to do the research and pass on letters voluntarily, the RIAA has saved legal fees for themselves by bypassing the usual subpoena process.

Then this week we heard about the withdrawal of a section of a proposed bill that would have required certain Universities to install software and actively seek out and stop illegal file downloading or lose federal funding. The story revealed that the sponsor of the measure substituted a much milder section that merely requires universities to provide material explaining the pitfall of illegal downloading and is not tied to federal funding at all. Although there were numerous problems with the original proposal (including the fact that the software the schools would have been required to use is not exactly ready for such a use), but a clear voice of objection from the Universities themselves was definitely instrumental in bringing about the change.

Universities should not be placed in a parental role over their adult students, any more than American workplaces should not be put in such a role over their employees. I’m glad Universities are finally objecting.

Music copyrights are actually a bundle of different rights. One right in the bundle is the right of performance. If a piece of music is performed in public, the owner of the music generally has a right to be paid for that performance. Restaurants, bars, music clubs, and retail businesses that play music in the background, or that have live performers, all must pay for the right to play the music in their business.

Payment is accomplished by purchasing a license from one or more of the performing rights societies. In the US, there are three performing rights societies: ASCAP, BMI, and SESAC. Each of these societies represents thousands of songwriters in the collection of performance royalties. Business purchase licenses that cover the performance of any music in that society’s catalogue. Each society has a detailed rate schedule that takes into account the size of the business and how they use they use the music, and rates are generally quite reasonable - the catch for a business is that when looking at any given rate quote, they will need to anticipate increasing it by three, as most businesses do and should purchase licenses from all three societies in torder to ensure that all music played is covered. SESAC now has a service that provides streams of SESAC only music which may fit the needs of some businesses, and which would lower licensing costs considerably as only one license from SESAC would need to be purchased. This solution will not work for all businesses, but is quite convenient for those that can use it.

There’s an internet tale hanging around that tells the story of a bar that got a call from the copyright manager of the song “Are You Ready for Some Football?” sung by Hank Williams Jr at the opening of the Monday Night Football telecasts. The story goes that the bar was told they had to pay royalties since they showed Monday Night Football on the televisions in their bar. Clever barowner decided just to turn down the volume when that song came on.

The story either is not true, or it’s true but the caller was a scam artist.

It is true that bars and restaurants must pay a licensing fee for the use of copyrighted music in their establishment, whether on a recorded cd, a jukebox, or performed by a live band. But most bars do NOT pay a licensing fee for music broadcast over a television program playing in the bar. The law specifically carves out an exception to the need to pay royalties for

“A food service or drinking establishment [that] (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable); or (2) has 3750 gross square feet of space or more and (a) uses no more than 6 loudspeakers of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; and (b) if television sets are used, there are no more than 4 televisions, of which not more than 1 is located in any 1 room and none has a diagonal screen size greater than 55 inches.”

Tomorrow I’ll address the music licenses that a bar should have.

Here’s an interesting case from Wisconsin. A public schoolteacher was accused of viewing pornographic material on his computer. An investigation was conducted and he was terminated. As part of that investigation, the school created a CD that contained samples of images that were allegedly viewed by the teacher. A local newspaper subsequently requested a copy of the CD under the state’s public information law.

The teacher, who apparently had only viewed the images privately and had never allowed students to view anything inappropriate, wanted to keep the material from being made public. He argued, among other things, that because the material ont he CD was copyrighted and owned by someone other than the school, the school could not release the CD to the public without infringing on the copyright.

Good argument. Open records acts routinely except from disclosure material owned by a government entity if disclosure would constitute copyright infringment. This prevents members of the public from obtaining copies of books and other materials purchased by the government without having to go through an ordinary purchasing channel.

This case has the fun little twist on that concept that lawyers and academics so love to play with. The newspaper who requested the CD asserted that providing a copy of the CD and the images on it would fall under fair use doctrine. The Court agreed. In brief, the images were not copied wholesale from the source, they were assembled as part of an internal investigation, and release would not interefere with the commercial value of the images.

Poor teacher. Here’s the lesson: private viewing of anything on a computer is not really private. Almost everything that is done on a computer can be reconstructed. And, if the computer is owned by a government entity, then all of the information and digital data contained on it belongs to that government entity. And sometimes, what belongs to the governement belongs to the people, whether you thought it was private or not. You can read the actual opinion here.

The Copyright Clearance Center’s new blanket license for Universities is a great idea, as I’ve said before.

California State University at Northridge (CSUN) has declined to use the license, explaining that only about a third of the publishers it currently pays fees to are represented by CCC. Read the story here.

The CCC seems to have a fair amount of clout, judging from the number of publishers and writers it has already signed on to its service. Now if it can only hang on long enough to get a majority of publishers and a better system for locating specific types of material, it could become a huge piece of usefulness in the future.

NPR reported last week that a popular guitar teacher on YouTube had his videos pulled after a complaint of copyright infringement based on his use of popular songs as demonstration songs in his teaching videos. But he apparently had not gotten permission to use the songs.

Demonstrating songs in your living room or teaching studio, one on one to students, is different than broadcasting to the public by way of the internet. Demonstrating a song for teaching purposes does not lead to a stellar performance - but it is nonetheless a performance.

A simple email or letter to the music publisher, along with a description of how you intend to use the song, can avoid all this trouble. Either the publisher says “fine,” in which case you go on along your merry way, or they say “no,” in which case you use one of the other hundreds of thousands of possible songs, or the publisher says “yes, if you do . . . ,” in which case you decide what you want to do.

Any recording or sheet music should give the name of the music publisher, which you can then usually locate through an internet search. Your note should give your name, a clear description of how you want to use the song, including how much of it you will be using, and any details related to the anticipated audience, whether you will be making money and if so about how much, and any other useful information about what you want to do with the song. Thank the publisher for their consideration, and give them clear contact information for yourself so that they can get a reply to you.

It’s just too easy to ask permission. It’s way easier than filming videos that can’t be used.

YouTube will take down video clips that have been posted to their site if they receive notice from a copyright holder that a video infringes the copyright and they want it taken down. This is, in part, because of requirements in the DMCA that must be met in order for YouTube (and other clip services, as well) to be protected from copyright infringement lawsuits. YouTube also takes down other videos for a variety of reasons.

A well written article in USA Today discusses the other side of the take down method of copyright protection.

Some folks are using the take down notification procedure inappropriately. Some notices are sent from people who have a personal beef with the video clip, but no actual copyright claim. YouTube has the discretion to remove such videos even in the absence of copyright problems.

Critics of the take down method cite these situations as problems, alleging a chilling effect on free speech by merely taking the word of one complainant when a legal anaysis would say that free speech - or some other right - would outweigh any potential copyright claim.

The truth is that any rule will have people who attempt to abuse or ignore it. I think YouTube has actually done a pretty good job of balancing the interests at stake. While they are quick to take down videos upon complaint, they have also been quite willing to restore the videos upon receiving contrary information. They appear to be actively involved in the process, assuring that while mistakes are bound to be made in an operation as huge as this one, there is a human touch able to apply common sense when necessary.

I don’t think the situation is as dire as some propose - although I certainly think that a close eye needs to be kept on Disney.

A Florida based business filed a suit for copyright infringement earlier this week. So what? you ask. The business sells erotic products in a virtual computer game world and has sued a character called Volkov Catteneo for selling allegedly illegal copies of a virtual bed that allows game characters to have sex with each other - in a variety of positions.

The game is Second Life, and one of the fairly unique things about this game is that users are encouraged to create their own products, to which they retain intellectual property rights, and trade or sell the items within the game. Apparently, there is quite a lot of real world cash that passes hands between the players. Eros, LLC, the company that makes and sells the sex beds, is one of the more successful, generating nearly half a million dollars off the beds alone - and that’s just one of their Second Life products.

The buzz around the internet is that this is the first virtual copyright suit, becaue it involves a bed that doesn’t exist outside this imaginary Second Life world. But in reality, the suit is just like many other infringement suits. The bed is actually a set of graphics coupled with a piece of software code - both of which are copyrightable. The defendant in this case is so far known only by his character name, so the plaintiff will have to subpoena the owner of Second Life and others in an attempt to determine his true identity, but that happens frequently as well. The Recording Industry of America (RIAA) has filed numerous music infringement suits against nameless college students, and then subpoenaed the Universities for names of IP address users.

Bottom line is that this lawsuit is not unique or first impression, although it is a very interesting set of facts, and so will be written about some more, I suspect. But it’s only likely to give us new and interesting legal outcomes if, as one commentator aptly put it, something weird comes out of a thoroughly bewildered judge.

The problem of how to handle copyright enforcement on file sharing networks (P2P) is still evolving. A development this week underscores that continuing evolution.

Brief background first: Before digital (BD), when everything was hardcopy, tangible property you could hold in your hands, publishers were legally responsible for the material they published. The publisher was required to ensure that no one’s copyright was infringed when they published material, or they would be responsible to pay the consequences. When the P2P sites, including any ISP that hosted bulletin boards, started appearing, they said they were different from publishers, that they were more like a gathering place for individuals - a park, if you will - than they were like a book or music publisher, and therefore did not have either the ability nor the responsibility to monitor copyright infringement.

The courts began to say otherwise, and it looked as if the ISP’s would be treated the same as publishers for purposes of copyright laws.

Then the Digital Millenium Copyright Act (DMCA) was passed by Congress, which specifically said that ISP’s were not responsible for copyright monitoring if they met certain criteria. So ISP’s were generally off the hook for infringing material posted by their users.

The New Development: This week, a court in Belgium took the other approach. Because the ruling interprets a European Union law, it covers all EU countries. The ruling basically says that ISP’s are legally responsible for material appearing on their sites - and that they have a responsibility to take measures to prevent copyright infringment in the same way that non-digital publishers have.

With US and European ISP’s operating under radically different legal requirements, the issue is ripe for more discussion, legislation, and treaties.

Note: the ruling reference above is not available in English. My information is based on a summary of the ruling published by the International Federation of the Phonographic Industry (IFPI).

The new, much higher internet radio rates go into effect on July 15. Two bills are currently in Congress that would roll back the rates to about the previous level.

The debate is heating up, and it is hampered by the fact that it is in fact a complicated issue plagued by a lack of hard facts that are available to the public. Although many of the issues are easily visible and debatable, much of the information used bythe Copyright Royalty Board in making its decision was considered proprietary business information belonging to the radion stations and was not released to the public. So it is difficult for observers to accurately analyze the decision.

The sides in the debate arent’ even clearly defined. Record labels mostly are in favor of the higher rates. Stations themselves are mostly NOT in favor of the higher rates. But some independent labels oppose the higher rates, while individual artists fall on both sides. Consumers mostly don’t care, as long as they get to hear the music they want when and how they want.

Soundscan, the agency that collects royalty fees on behalf of record labels and which has mostly represented their interests throughout the Copyright Royalty Board case and the ensuing twists and turns, has been in talks with a coalition representing the internet radio industry. Late last week, Soundscan publicly issued a compromise offer to the industry. Industry representatives have not rejected it out of hand, but have clearly stated that it is too little too late, and appears designed to shut down negotiations rather than to sincererly continue the process.

But with the raise taking effedct in less than two weeks, and Congress heavily involved at this point, we are pretty much guaranteed to see fireworks shortly after the Fourth, as well as on the Fourth.