Rattle wrote:
] ASCAP only has the right to license public performance of
] non-dramatic works. This is outside the scope of PROs.
]
] Podcasts are not broadcasts, or more specificly, not public
] performance.
] However, a PRO is not able to license the mechanical copy.

Did you read my posts? I agree with you totally in principal and this is what I said initially, but it turns out ASCAP is claiming that ANY digital transmission of a sound recording is a public performance regardless of whether the transmission is actually played. They are collecting from online music stores for their SALES.

Decius wrote:
] Did you read my posts? I agree with you totally in principal
] and this is what I said initially, but it turns out ASCAP is
] claiming that ANY digital transmission of a sound recording is
] a public performance regardless of whether the transmission is
] actually played. They are collecting from online music stores
] for their SALES.

A very brief discussion I had with my copyright law professor today seemed to indicate the opposite, however it is open to debate. We didn't talk long about it, I'll bring it back up next week.

Hmm.. I'm going to have to sit down with sec 106 and 114 and think about this. In the meantime, a rant with where I'd think it stands right now.

I had been under the impression that the reason the online music stores were paying PRO royalties was due to the fact they had the preview features available, which are a stream and not a download, hence performance (and not covered by in-store play exclusions). That doesn't appear correct. I am completely unaware of the details of the stores' agreements with the PROs. Its likely that the ambiguity was left in place rather then battled out due to the stores desiring not to stir the shit any further then necessary, and just get their show on the road.

They can claim whatever they want, and the stores can play along, but that does not mean its valid. In the case of podcasting, it got its name because the intention was to create radio style programs for later playback on iPods. This does not imply public performance in any way, quite the contrary. The "cast" part of the name does imply broadcast, but I can see ways to counter that. MP3 being used Shoutcast style can be both a stream and a download, but the intent with podcast is different. Although it could also be claimed that the content qualifies as a performance simply because its possible can be streamed. Do we need a file format where playback can't take place until the last part of the file has been downloaded? We probably already have one... However the law doesn't give a shit about anything I said in this paragraph..

Sec 106(6): in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

At least the liability isn't on the user end. Its clearly the producer. The source of the digital stream is what strikes sec 106(6). If that work transfered contains a protected work, the podcast's creator is the point of infringement and would be liable.

The crux may is the "to preform ... by means of". That implies the digital transfer itself is the public part, not the actual performance. The actual performance is likely private, but the transfer is digital. Sec 114 tosses in some language about "subscriptions" that might apply to RSS feeds, which complicates matters further. I believe that a happy side effect of this all is that if you buy music from iTunes (or anothe... [ Read More (0.3k in body) ]

Rattle wrote:
] Its likely that the ambiguity was left in
] place rather then battled out due to the stores desiring not
] to stir the shit any further then necessary, and just get
] their show on the road.

Maybe you're right. I don't get that at all. You'd think an effective arguement could be made that congress didn't intend to extend performance this way, but maybe they are worried that the judge will get snowed under the technical detail. Its also possible that they don't so much mind paying ASCAP where the RIAA is really the organization that is causing them most of the problems.

] Although it could also be claimed that
] the content qualifies as a performance simply because its
] possible can be streamed.

Thats going to be a key question. When I download your mp3, its possible that my browser plugin might pop up and play it. Does that mean I'm streaming?

On the one hand you could craft the law so that it says that streaming is when you are transmitting a format that is a streaming only format, and downloading is everything else. On the other hand you could craft the law so that is says that any time its possible that someone could have automatically played the file, its streaming, even if its also a download. Then you'd need special DRM that requires the file be downloaded before its played, which is fucking stupid.

I think we should go back to basics. A radio transmission is a public performance because you are sending out photons that can be picked up at will by a large number of people. Sending one file to one person in an interactive service is not a public performance. You can't have a private public performance!

] Sec 106(6): in the case of sound recordings, to perform
] the copyrighted work publicly by means of a digital audio
] transmission.
]
] The crux may is the "to preform ... by means of". That
] implies the digital transfer itself is the public part, not
] the actual performance.

Thats probably their reading. Its not mine. Its possible to perform the work by means of a digital transmission, but the fact that you are digitally trasmitting the work does not necessarily mean you are performing it.

] I believe that a happy
] side effect of this all is that if you buy music from iTunes
] (or another store that pays the PROs), you can preform it in
] situations where you would normally need PRO licenses, but
] don't have them.

I don't think so, because PRO licenses don't transfer.

] You can play the radio because it
] got the coverage via the radio station's license(s). The
] courts ruled (can't remember what case) that they can't hit
] you up twice.

I don't think this would work. You've paid the PRO for the digital transmission. The playing of the song is a separate performance and so you have to pay again. In the case of radio its the same performance, so it can't be billed twice.

] In the end, being a mechanical copy isn't what you really want
] if easy clearing of rights is the goal anyway.

You're absolutely right about that, but one can foresee the need for new kinds of statutory licenses in all of this.

] If its being able to play a
] 20-30 second clip of a song and recommend a band, then its
] worth fighting for. Criticism, comment, and news reporting
] are covered under s107 fair use, usage such as Wheaton was
] concerned about is already clearly covered.

I think he is playing the whole song.

] If Shakespeare existed in
] the Copyright environment of today, woul the great bard have
] wanted to kill all the lawyers more, or less. :)

I think if Shakespeare were alive today he'd be a homeless guy on heroine in a gutter in LA.