Woman Fined $220,000.............

[oldbuckster]

Well, here come the Record Companies, Illegal Downloads just cost her almost a Quarter Million Dollars........Big Business at it's Finest !!!! Funny, I can burn a copy for myself, but I can't burn a copy for a friend...............Oh My, where are we headed ?????

[jacksonbart]

beware of ASCAP, BMI and SESAC.

[Duke Spinner]

legalized extortion ... ASCAP

[pauln]

This should get interesting when the musical philosophers come on board...

In order to claim that a piece of music was copied and/or distributed one has to define what that piece of music really is...

Is it the stream of digital coding? All all the original bits required for it to be the same song? What if some are missing or incorrect?

Is it the specific waveform of the song? Is that the wave form before or after digital conversion? How closely does it have to match the original or how far off can the "copy" be to be claimed to be the "same" thing?

How does preventing someone from performing or distributing a piece of music not violate free speech and expression protected by the first ammendent to the US Constitution?

When I taught my brother how to play Stairway To Heaven did I break the law?

If they try to use the "sounds like the same song" approach, what about Country & Western music? ...half of all those songs sound like the same song.

[oldbuckster]

The story is on aol.com ................... This has been brewing along time. Music that has been released and sold is fine, but I understand about stealing songs and selling them before the artist has released his/her work is wrong.......When albums were $3.00 each you never heard a word about recording, everyone at one time had either a cassette recorder, or Reel to Reel, and made tapes for friends.............even up to $10.00, you never heard a complaint, now at almost $20.00 and up for CD's and DVD's, now they cry about recordings...............give me a break !!!!!!!!!!! When is enough,enough ???????

[Travis In Austin]

This should get interesting when the musical philosophers come on board...

In order to claim that a piece of music was copied and/or distributed one has to define what that piece of music really is...

Yes, but that is pretty easy. You play the song to the jury, and then you play the copy. The jury decides if it is the "same." You can argue all day about code, waveforms, bits, bites, etc. If 12 people who are not smart enought to get out of jury duty think it is the same, it is the same.

Is it the stream of digital coding? All all the original bits required for it to be the same song? What if some are missing or incorrect? See above

Is it the specific waveform of the song? Is that the wave form before or after digital conversion? How closely does it have to match the original or how far off can the "copy" be to be claimed to be the "same" thing?

See above

How does preventing someone from performing or distributing a piece of music not violate free speech and expression protected by the first ammendent to the US Constitution?

Because if the music is copyrighted, the 1st Amendment does not get around copyright law. The constitution protects your right to think, and to say what you think. It does not allow you to lie about someone as in slander or liable, or steal their ideas as in copyright and patent law.

When I taught my brother how to play Stairway To Heaven did I break the law?

No, you did not make an illegal copy, and you can play the song to anyone who will listen. Until you charge to play the song, or play the song in an establishment that makes money, like a resturant, nightclub or radio station. The songwriters felt that if you were making money off of their song they deserved a little cut. Go figure.

If they try to use the "sounds like the same song" approach, what about Country & Western music? ...half of all those songs sound like the same song.

That goes to plagerizing, one artist stealing anothers. It is decided the same way, by a jury.

[Daddy Dee]

Does anyone know what figure she was offered to settle and avoid trial?

I'm not casually dismissing piracy as a legal and moral issue, but the "damages" to the recording industry sound exorbitant and exaggerated to me.

Pretty much sick here of the recording industry. The DRM on the Napster tunes that I PURCHASED prevents me from playing the tunes I supposedly own the license for because.... Napster tech support doesn't have a clue. One Napster tech told me I should just be glad my problem wasn't as bad as some people whose DRM license system fails alot more often than mine.

[djk]

"legalized extortion ... ASCAP"

You got that right!

A few years back they nailed a clothing store chain that had local radio playing. They wanted a fee equal to what a radio station would pay. Same story for a hole-in-the wall club for bands playing 'cover' material, same fee as a radio station. Muzak got its start as the way to avoid this extortion, they only play their own arrangements, the fees about 1/10th (and this includes rental of the equipment too).

One problem is they don't want to deal with small transactions. This is of course, stupid. There are companies out there that charge 1% ( $0.25 minimum) on a transaction, and they make money at it. You send them a PayPal for $5 and they tell you when you run dry. About 50,000,000 people sending you $2 a month must not be enough money ($1.2B a year).

[Marvel]

A good friend of mine works for ASCAP. He has as much as admitted to me they work by threats and intimidation. He travels around and finds businesses which are playing the radio, playing CDs, tapes. THen he tells them they need to pay a fee or go to court. He is a songwriter and member himself, but says you will not benefit much at all unless you are an artist who sells in the millions.

[oldtimer]

I thought the airwaves were free? If you can receive the signal you are free to hear it. Also, if the broadcaster has already paid the fees to put the material out there for anyone to receive it, the logic for collecting from the end user is just not there, and should never have a chance in court. I would even think about a counter suit to collect fees from those thugs for exposing my customers to their material if they want to play that game.

[Daddy Dee]

djk,

That is most interesting on the force behind Muzak. I always thought elevator music was the oddest phenomenon.

Still sort of a mystery. I always wondered about the technolog/gear actually playing Muzak.

[Mr. RF62]

I think its B.S!!!! I'm a Disc Jockey(File Jockey), and I get asked all the time about it. But I buy the Greatest Hits of the artists to try and cover my *** a bit.

Leaving legal issues to juries is dumb, there is prolly a way around that as well, and it would be no good if you get a bunch of jurers that download as well.

Dumb.

[Travis In Austin]

I thought the airwaves were free? If you can receive the signal you are free to hear it. Also, if the broadcaster has already paid the fees to put the material out there for anyone to receive it, the logic for collecting from the end user is just not there, and should never have a chance in court. I would even think about a counter suit to collect fees from those thugs for exposing my customers to their material if they want to play that game.

The airwaves are free. As a former nightclub owner in Las Vegas I am all too familar with ASCAP,but they cannot charge someone for playing the radio in their business becasue the radio station has paid the royalty to ASCAP and they are not allowed to collect it twice. However, if the store plays CD's, etc. then ASCAP, or whoever the royalty rights company is, can collect the royalty. So now, if you want commercial free music in your business, either piped in the store, or on while people are on hold, you use XM. XM has paid ASCAP so you don't need to, because you have paid XM instead of an advertiser. If songwriters don't get paid, who is going to write the songs? I think what people are upset about is the formulas that were created a long time ago. It was a compromise between performers (who think they should get the royalty), song writers, record companies, distrabution networkds, radio stations, etc.

By the way, if you want to help that lady pay her judgement, here ya go. Only on ebay.

http://cgi.ebay.com/Donate-to-Jammie-Thomas-who-has-to-pay-RIAA_W0QQitemZ180166837902QQihZ008QQcategoryZ306QQssPageNameZWDVWQQrdZ1QQcmdZViewItem

[Travis In Austin]

I think its B.S!!!! I'm a Disc Jockey(File Jockey), and I get asked all the time about it. But I buy the Greatest Hits of the artists to try and cover my *** a bit.

Leaving legal issues to juries is dumb, there is prolly a way around that as well, and it would be no good if you get a bunch of jurers that download as well.

Dumb.

Buying the greatest hits might get you around liability for stealing the songs, but it won't get you around liability to ASCAP for playing the songs if you charge a fee for people to listen to you. There are two seperate issues at play here. I don't know the specifics about the lady who got the big judgement against her, I am going to try and get more facts about that, but from what little I read she was nailed for sharing music on the internet. They were filing similar lawsuits against UT students here in Austin but we got the federal judge to shut that down until until a test case had gone all the way through. I think this one is getting a lot of coverage because she did not settle, and it is a big (record?) judgement. RIAA represent the record companies and helps account for and collect their cut of the CD/Record price. They are like ASCAP, but ASCAP is for song writers.

The second issue is liability for playing a song. Do you have to pay someone (ASCAP) if you play a song in a business, sing it on stage, etc. So if you rip off the song (illegal copy) and use it in a commercial enterprise without paying ASCAP, or BMI, or whoever, then you could be looking at being hit with two seperate lawsuits.

Travis

[BEC]

Lots of guilty folks on this one.

[djk]

"As a former nightclub owner in Las Vegas I am all too familar with ASCAP,but they cannot charge someone for playing the radio in their business becasue the radio station has paid the royalty to ASCAP and they are not allowed to collect it twice. "

As you can see, you needed a blanket license to have music in "bars, grills, skating rinks, baseball stadiums, funeral parlors, etc." and "A case in point would be clothing stores such as the Gap chain...These stores use the music from already-licensed radio stations ...ASCAP's legal forces prevailed on the "double-dip" licensing concept"

LICENSING STRATEGIES

At this time, the licensing strategies for the three U.S. performing rights societies are similar. The bulk of the licensing effort concerns the application of the blanket license. The blanket license allows the music user unlimited access to the collectives' licensed repertory, for a contractual period of time, in exchange for a profit participation in the music user's economic growth. The following discussion will break down each component part of the aforementioned sentence.

The blanket license allows the music user...

The music user is defined as any organizational entity that wishes to use music, in a public performance form, for a commercial or non-commercial business purpose. This broad characterization includes radio stations, local commercial television stations, network television, public radio and television stations, cable television, background music services such as MUZAK, bars, grills, skating rinks, baseball stadiums, funeral parlors, etc.

ASCAP defines its music user market through strategic litigation initiatives. A case in point would be clothing stores such as the Gap chain. ASCAP defined this relatively new market as commercial establishments deploying industrial radio speakers for use as a sales inducement. These stores use the music from already-licensed radio stations for a different motive; the music is used not as a source of private entertainment but rather to stimulate a sales environment for the product. ASCAP's legal forces prevailed on the "double-dip" licensing concept. BMI followed ASCAP's market lead.

..an unlimited access to the collectives' licensed repertory...

The concept of unlimited access to the licensed repertory is the heart of the blanket license strategy. ASCAP and BMI (and to a lesser extent, SESAC) maintain that the ease of access accommodates the music user's need to gain instant permission for copyright use and thus provides a true service to the licensee community. Blanket licensing, according to the societies, eliminates the structural impediment resulting from transactional licensing. Most importantly, it allows ASCAP, BMI and SESAC to minimize their administrative costs in providing a licensing structure for the music user community. As we shall see later, these virtues are now seen differently by the music user in a vastly changed, technologically-enhanced, and cost-containment conscious entertainment economy.

...for a contractual period of time...

The significance of this statement is twofold: (1) it ties up the licensee with the repertory for a period of time, allowing the collectives to enjoy a stable economic relationship; (2) it ties up the copyright holder to the individual collective representing its works. ASCAP refers to this phenomenon as "licenses in effect." When ASCAP negotiates a license agreement with a user group (traditionally, broadcasters and other music user types form negotiating committees that represent the industries' interests), it promises to that group that it represents the song catalogs owned by its writer and publisher members. ASCAP's membership rules allow a writer or publisher to resign at a fixed point each year, but the songs attributable to the catalog, as represented to the music user in a negotiated agreement, must stay with ASCAP through the duration of the agreement with the music user.

...in exchange for a profit participation in the music user's economic growth.

The blanket license calls for a negotiated fixed percentage of the music user's gross revenue (allowing for some deductions) as consideration for the unlimited access doctrine. Each industry group negotiates with the performing rights societies based on its valuation of the use and importance of music in its operation.

The most intensive music user, the radio broadcasting industry, pays the highest rate (approximately 2.5% of gross revenues) for each of the 8,500 stations currently in operation. This fixed rate facilitates a simpler enforcement strategy by eliminating the need for customized agreements with each station. The societies regularly audit the reported financial disclosures to determine the gross revenue base. The local television industry negotiates similarly but in recent years has been battling ASCAP for a viable alternative to the blanket license. All other music users are also licensed through a percentage-of-gross formula. The glaring exception had been the commercial television networks which had been paying on a flat sum basis. Pending the decision of a recent rate determination hearing between ABC and CBS against ASCAP, this flat sum licensing practice may end soon.

[djk]

While the landmark judgement against The Gap was recently overturned in appellate court, an aggressive new ASCAP campaign against all manner of retail stores that play the radio or CD's for shoppers is underway.

Any organization that fails to buy a license is at risk of being sued by ASCAP on behalf of the copyright owner.

Even parades and political fund-raisers with a marching band have been sued.

Even aerobics instructors who use music have been notified by ASCAP of their need for licenses for the dance music they use in exercise programs!

A small nightclub might pay anywhere from $200-700 per year to ASCAP alone.

If you use the music, either you pay their fee or they sue you if they catch you using it without the license. And they can charge you penalties up to $20,000 + legal fees per infraction!) ASCAP has teams of lawyers who do nothing else and who are extremely well-versed in the technicalities of the law, and a tavern owner and a small-town lawyer have essentially no chance of winning a lawsuit. Legal right to do this has been established over a series of court rulings and legal precedents, and so far no one has been able to win a lawsuit against ASCAP for infringement of copyright by "public performance."

Note that even though a record company that manufactures a recording pays the owner of the copyright royalties, the radio station that plays it must pay again for their ASCAP license; and a restaurant or store that plays that radio station to entertain their customers must pay a third time.

There are some types of organizations that are exempt from needing ASCAP licenses. These exemptions are the following:
1)religious organizations (during worship only)
2)non-profit educational institutions
3)record stores and other establishments where the primary purpose of playing the music is to sell it
4)government bodies (state and federal)
5)state fairs and agricultural events
6)certain veterans and fraternal organizations during charitable social functions (added in 1982 in a last-minute legislative session)
7)various "non-commercial" and charitable performances that have no admission charge, commercial intent or paid performers
8)movie houses

[Travis In Austin]

Note that even though a record company that manufactures a recording pays the owner of the copyright royalties, the radio station that plays it must pay again for their ASCAP license; and a restaurant or store that plays that radio station to entertain their customers must pay a third time.

That is because the radio station is paying someone different (songwriter) then the record company pays (artist).

You are overstating the playing the radio requirement. It is very difficult for ASCAP to be able to charge a business for playing the radio, and they have lost on this many, many times. This is from ASCAP's own site:

1. I'm interested in playing music in my restaurant or other business. I know that I need permission for live performances. Do I need permission if I am using only CD's, records, tapes, radio or TV?

Yes, you will need permission to play records or tapes in your establishment. Permission for radio and television transmissions in your business is not needed if the performance is by means of public communication of TV or radio transmissions by eating, drinking, retail or certain other establishments of a certain size which use a limited number of speakers or TVs, and if the reception is not further transmitted (for example, from one room to another) from the place in which it is received, and there is no admission charge. Your local ASCAP licensing manager can discuss your needs and advise how ASCAP can help you.

Keep in mind this is from the ASCAP site, and they are going to take the position most favorable to them. Congress clarified the issue of playing TV and Radio back in '99 because of over-reaching by ASCAP, and it is clear they are very limited in being able to charge for playing a radio broadcast.

By the way, I don't think I have ever heard of ASCAP suing a marching band. ASCAP does not sue performers, or collect from performers. They collect from business owners, promoters, etc., the person who derives the benefit from the music.