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.

RE: Boing Boing: Wil Wheaton: So, ASCAP to *license* podcasts? Readers respond.