Club Owner Has To Pay $40,000 Because A Cover Band Played 10 Songs
from the yikes dept
In the past, we've covered some of the ridiculous claims that come out when ASCAP goes around suing restaurants, bars and clubs for performing music without securing a license first. The idea that having music playing in a restaurant without a license somehow causes "irreparable injury," seems ridiculous. If anything, having songs played in public places where people can hear them is likely to get those songs more attention, providing more opportunities to make money for the musicians behind the song. In the latest twist on this theme, Stephen writes in to let us know that the former owner of a night club in Vail, Colorado has agreed to pay $40,000 because a cover band performed 10 cover songs at his club, without him paying the required ASCAP fees. Note that the band itself didn't have to pay anything. The thing is, he got off cheap. ASCAP could have tried to charge him up to $30,000 per song. Again, it's unclear how this benefits anyone (other than some lawyers). All it does is make it a lot less likely that venues will want to play songs licensed via ASCAP. It's short-term thinking that destroys long-term value.
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Ye gads...
Why are they such fools?
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off topic
oh and on-topic: cheez, wtf is wrong w/ these record co execs? you'd think they'd suffocate w/ their heads so far up thier asses. but no.
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Comon
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So....
I'll open with 17 cents.
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Righteous Indignation is Misplaced
Get the law straight: ASCAP has to plead "irreperable injury" under the law of injunctions, it's not that they think their business will be harmed more or less than if songs were played free, rather it's the fact that you can't un-ring the bell (or, in this case, un-play the song).
Get the business straight: it might be best to let some songs be played free, but ASCAP has to enforce their license terms occasionally (and publicly) if they ever intend to enforce their license at all. Always letting every bar, club, arena, radio station, etc play music free might be a fun model, but it's certainly not a business model. You can disagree with the idea of chargging for music, but if they are going to charge for music then they have to occasionally enforce against those who will ignore the law.
Get the business straight (2): Randomly enforcing on a large scale is far more efficient than enforcing every violation for nickels and dimes. ASCAP decided that instead of suing every single bar that plays one song without paying. The litigation costs are immense. Given that a top-tier lawyer bills at $300/hour, I'll bet that ASCAP will lose money on this by the time all is said and done. But, it's a lot less expensive to sue one bar for $30,000 than to sue 100 bars for $3000. See the Law & Econ literature on optimal deterrence to get a more nuanced view on this.
Get the business right (3): Since ASCAP's strategy is to make a very large and public suit occasionally rather than to sue every violator, Techdirt has just played into their strategy by publicizing this suit. Way to go.
In short, Techdirt (again) trades short-term righteous indignation for long-term value. I certainly wouldn't trust my corporate intelligence to a company that doesn't understand optimal deterrence. I reccomend readers similarly think critically before falling into Techdirt's default smug indignation.
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Re: Righteous Indignation is Misplaced
Copyright, Intellectual Property, are outmoded systems. Time to change them.
I choose to ignore them.
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Re: Righteous Indignation is Misplaced
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Choose to ignore?
How brave of you. Truly an act of civil disobediance worthy of a medal.
Too bad simply disagreeing with a law doesn't give you the right to ignore it. I think speed limits are outmoded systems, but I pay the same ticket as anyone else when I get pulled over.
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Re: Righteous Indignation is Misplaced
Get the law straight: ASCAP has to plead "irreperable injury" under the law of injunctions, it's not that they think their business will be harmed more or less than if songs were played free, rather it's the fact that you can't un-ring the bell (or, in this case, un-play the song).
Does that make it any less ridiculous?
Get the business straight: it might be best to let some songs be played free, but ASCAP has to enforce their license terms occasionally (and publicly) if they ever intend to enforce their license at all.
Indeed. Again, that doesn't make it any less ridiculous. I've pointed out pretty clearly why enforcing that license is a short-term strategy that harms long term business opportunities.
lways letting every bar, club, arena, radio station, etc play music free might be a fun model, but it's certainly not a business model.
I would disagree and the basic economics says that it absolutely is a business model.
but if they are going to charge for music then they have to occasionally enforce against those who will ignore the law.
But if the actual end results are that they're shrinking their market and harming their business, then no, they shouldn't enforce the law.
Get the business straight (2): Randomly enforcing on a large scale is far more efficient than enforcing every violation for nickels and dimes.
This is true, but that doesn't make it either right or fair. Paying $40,000 for having a cover band play seems pretty unfair no matter how you look at it.
The litigation costs are immense.
Why should that matter? There is no reason why ASCAP needs to litigate. If it's expensive, then it suggests that they're doing business badly.
But, it's a lot less expensive to sue one bar for $30,000 than to sue 100 bars for $3000. See the Law & Econ literature on optimal deterrence to get a more nuanced view on this.
I understand that, but you should do a little literature reading yourself on how overly aggressive lawyering backfires badly...
Get the business right (3): Since ASCAP's strategy is to make a very large and public suit occasionally rather than to sue every violator, Techdirt has just played into their strategy by publicizing this suit. Way to go.
Yes, we've also publicized how ridiculous it is so that hopefully businesses start changing their models and politicians start changing laws to better reflect reality. That seems like a fair tradeoff.
In short, Techdirt (again) trades short-term righteous indignation for long-term value
How so? By pointing out how ASCAP's short-term strategy is long-term suicide? By pointing out how ASCAP's strategy SHRINKS the music market? I don't see how that hurts long-term value. I'd argue the exact opposite.
I certainly wouldn't trust my corporate intelligence to a company that doesn't understand optimal deterrence. I reccomend readers similarly think critically before falling into Techdirt's default smug indignation.
Your loss. Luckily plenty of companies trust us because they know we'll give them an honest and clear and detailed assessment of what challenges their business is facing and how to go about beating those challenges. We back up everything we say and companies find that valuable. There are certainly some folks who prefer to hear that their failing business model is "just dandy" and there are lots of research firms you can pay to hear that sort of thing. Those companies will never be our customers anyway -- nor will they last very long. The ones who actually want to survive past the next few challenges do come to us and they're pretty damn happy about what we give them.
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Quick response
Yes, in fact. It seems that "irreperable injury" is a legal "magic word" rather than an actual argument. You argued that it was ridiculous that they really think they are being irreperably injured.
It is NOT ridiculous to use the right magic words when you are pleading a copyright suit.
It IS ridiculous to take the magic words that are part of a pleading document and hold them up as evidence of a business strategy or lack of thought.
To take the example one step farther: if copyright suits required putting the word "MIKE RULES!" at the top of every page, it would hardly be ridiculous for a company/organization to put the word at the top of the page, even if it had nothing to do with the content of the lawsuit. It would be silly for a site like Techdirt to make fun of them for writing "MIKE RULES!" at the top of the page, even if Mike does not in fact rule.
> Why should that matter? There is no reason why ASCAP needs to litigate. If it's expensive, then it suggests that they're doing business badly.
I know that you disagree with copyright generally. But if you accept that the only purpose of ASCAP is to enforce copyrights of participating musicians, how else are they supposed to enforce the terms of their license?
Step-by-step: (1) Band signs up with ASCAP. (2) Somebody plays songs from Band without a license. (3) ASCAP sends nice letters. (4) ????
If (4) doesn't include the possibility of litigating, then ASCAP could never ever do business. The threat of litigation is what keeps cover bands (and bars) honest.
It'd be like saying that if your mortgate company has to foreclose on your house then they are doing something wrong. It's quire possible that they did choose to lend to an untrustworthy lender and did do something wrong. BUT, if you took away the ability of mortgage companies to forcelose then nobody would pay their mortgage. The threat of litigation at the end of the road is what keeps you paying your house (or car, or student loan) bills on time.
I'll happily admit that ASCAP has been heavy-handed. There are plenty of stories of trivial violations (playing a few bars of a song, rather than an entire performance) resulting in nasty letters from lawyers. But you are attackng them for the wrong reasons.
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Re: Re: Righteous Indignation is Misplaced
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Re: Quick response
Wait, you want us to believe it's okay just because the law requires a "magic word?" Do you understand how silly that sounds?
It IS ridiculous to take the magic words that are part of a pleading document and hold them up as evidence of a business strategy or lack of thought.
No. It's not ridiculous. Because it shows how far out of touch the law is with reality. That's an important point.
if copyright suits required putting the word "MIKE RULES!" at the top of every page, it would hardly be ridiculous for a company/organization to put the word at the top of the page, even if it had nothing to do with the content of the lawsuit. It would be silly for a site like Techdirt to make fun of them for writing "MIKE RULES!" at the top of the page, even if Mike does not in fact rule.
Yes. It would be ridiculous for obvious reasons -- and pointing out that it's ridiculous would make a tremendous amount of sense.
Just because the law says you need to do something doesn't make it any less ridiculous when you compare what the law says you need to do with reality.
I know that you disagree with copyright generally. But if you accept that the only purpose of ASCAP is to enforce copyrights of participating musicians, how else are they supposed to enforce the terms of their license?
I don't "disagree with copyright." I think that the industry is better off ignoring copyright since it can grow its business much faster and bigger without it.
As for ASCAP, you focus way too narrowly here. I think the important point is that the music industry should realize it doesn't need ASCAP -- and, in fact, that ASCAP is doing a lot of harm to its business.
The point of ASCAP isn't, as you say, to enforce copyrights. The point of ASCAP is to be a function of the music industry to help it grow and make money. However, if it's doing the opposite, then why defend it?
It's like saying that the point of the makers of horse-drawn carriages is to sell horse-drawn carriages -- so they absolutely should prevent automobiles from ever hitting the market. That sort of logic doesn't make sense in the business world.
It'd be like saying that if your mortgate company has to foreclose on your house then they are doing something wrong.
But ASCAP isn't like the mortgage company, that actually makes a transaction to provide additional value. ASCAP is a function of the music industry as a whole -- and its one that does more damage than good by shrinking the overall market.
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I respectfully disagree
Sure, maybe fans would buy more FOB tracks from iTunes (or download them off bittorrent), but under current law I can also sell my covers on iTunes. With no source of revenue left, FOB dries up and folds. The world is poorer by one post-emo rock band. It's entirely an empirical judgment (about which we have no evidence) whether the world is better with knock-off cover bands replacing the original artists on tour. It's an extreme example, but at least under current law the bands that play covers have to compensate the original artists (who voluntarily associate themselves with ASCAP).
It's in fact very weird (and anti-copyright) that current law has a mandatory license for covers. It's not a fair use question: a band is making full commercial use of the entire creative work. It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror. I'm going to guess that you would sue if I were to site-skim the entire content of Techdirt and post it on my own site with advertising all over it, even if I attributed the content to Techdirt. (If not then let me know -- I'd be happy to run the experiment.)
I think the proof of the folly in your argument is that hundreds upon hundreds of bands do voluntarily choose to associate themselves with ASCAP. The few that do agree with you are free to allow cover bands to play their songs. I think Magnatune (based on Berkeley) is close to this model, as are the jam bands that allow free taping/trading.
I don't want to belabor this poitn all morning, so I'll let it go after this round. You get the last word if you want it. Have a good day and thanks for discussing this intelligently and civilly.
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Re: Quick response
Irreparable Injury
Any harm or loss that is not easily repaired, restored, or compensated by monetary damages. A serious wrong, generally of a repeated and continuing nature, that has an equitable remedy of injunctive relief.
It's not a magic word any more than 'rape' is a magic word girls say after they have sex with a guy and regret it later. If they can't prove that they meet the definition, they shouldn't be suing. I can't imagine how a cover band playing some songs in a bar hurt the artist in any way shape or form-- so, it's less suing for damages and more a public demonstration to other bars for "this is what will happen to you unless you pay our music tax!"
Now, what I don't understand is why the bar owner got the fine, when the cover band did the deed. Maybe, just maybe, it's because cover bands don't have $40,000 to be taken from them, and bar owners do.
The entire system is a sham, and needs to be revamped, if not altogether removed.
As a side note, if *enough* people don't like a law they can ignore it-- keep in mind that there are several states that it is illegal to get a blowjob in-- I'm *sure* people all pay attention to *that* law. For the people, by the people.
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Re: Quick Response
Not after Lawrence v. Texas. Blowjobs (and sodomy of all combinations of two individuals) are free and legal in all 50 states. Any laws on the books to the contrary were rendered unconstitutional by Lawrence, and thus null and void.
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Re: Re: Quick response
If people never get to hear the music, they don't like the music, therefor the music makes no money. People don't just know about music, they hear it for themselves. Sometimes it's cover bands, sometimes it's internet radio stations.
If the ASCAP is going to cut down on the amount of people who listen to the music to uphold dated practices and models, then they're better off gone. What money is lost from a cover band making YOUR songs more well known? Some of those people probably went home and researched the song because they wanted more of it.
Laws are upheld to support and maintain society and it's progression, not impede it. You (The Brothers) obviously don't care though, as long as we go with what has worked before, right?
Stop focusing on how much money is lost now, and think about how much could be made in the future. A true business model does just that.
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In response to The Brothers...
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Thanks Brothers, your check is in the mail
Check is in the mail.
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Re: I respectfully disagree
That, my friend, is ludicrous.
If Fall Out Boy were any good, and had any good fan base, they wouldn't pass up an original version of a song for a cover.
And obviously you don't go to shows often, because to go to one show and not the other... why? That makes no sense! Go home.
"Sure, maybe fans would buy more FOB tracks from iTunes (or download them off bittorrent), but under current law I can also sell my covers on iTunes. With no source of revenue left, FOB dries up and folds."
First off, FOB folding up because of covers. Mhmm... That's a silly scenario. The band would obviously suck if that occurred.
Second, this is a different argument all together. If you're going to sell a recording of a cover song, that would be a legitimate case for them to sue, because it's something a user could hear over and over and would in fact cause financial damages. A show is a one time deal, leaving people wanting more (which they're most likely going to get from the origin that the cover band). So, it's not applicable to your argument.
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Re: So....
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Mike isn't that hypocritical
Correct me if I'm wrong but I believe this has already been argued, Mike's response was approximately "skim it if you want but wouldn't it be much easier if you just used our rss feed? Go ahead, either way people will figure out the real source and it's only more publicity to us." So you see that's exactly what he is saying - except about the royalty part - the extra traffic (if any) is payment enough and if you cover a demographic etc that Techdirt doesn't then it certainly doesn't harm them - in fact it helps to expand the market they are in thus benefiting them.
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Re: Re: So....
Of course, I only know what we got out of the deal - I have no idea how much ASCAP got, and I'm sure it's far more.
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Re: Re: Quick Response
At any rate, replace "there are several states that it is illegal to get a blowjob in" with "it is illegal to hang things on your rear view mirror" to keep my point intact.
:P
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Re: Re: Re: Quick Response
:P
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Re: I respectfully disagree
Funny thing, though. Oasis's record label didn't sue No Way, Sis!, despite their being a reasonably popular cover band at the height of the Brit Pop boom. People were still willing to pay ludicrous prices to see Oasis live, still bought the records, still joined the fan clubs, etc etc, and getting the live music vibe just made them like the songs more.
It's almost as if they increased the popularity of the music and allowed Oasis to make more money from it.
Hang on, that sounds familiar... has someone suggested that on here before?
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Re:
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ascap is a joke!!
abstract10.com
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wow.. amazing..
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Re: wow.. amazing..
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...and yet again....
All this is doing is hurting the people who love playing music for other reasons than just sheer profit.
I don't know of any band thats ever complained because some local cover band is playing a song of thiers.... The pros that I've spoken with and jammed with through the years seem to think that it's a compliment.
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Re: wow.. amazing..
ASCAP, BMI and SESAC have been around for decades and have always required venues obtain performance licenses. Any business that profits from a musician's intellecttual property must have a license and that includes your local doctor's office if he uses a music-on-hold system.
I challenge any of the dopers on here to create anything the public wants and let's see them give it away. Oh yeah, you'll have to provide the bandwidth to download it if it's digital, or the printing costs if it's not.
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Billy said it best
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I'm curious what history will say about all of this. "The recording companies of the past refused to accept the new technology and faded out of existance."
hmmm, who knows?
I know one thing - business models may need to change... The concept of new technology and easier to use media will not change, that will continue to be a steady flow. It seems the best innovations are sometimes done under pressure anyway.
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Re: ...and yet again....
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suing at random
The law cannot be applied selectively. Either they sue everyone or no one. Otherwise the law has no teeth.
In addition, one might say this strategy could lead to them to suing on a basis of, say, racial bias, targeting only black clubs, but it's more likely their suits are only in defense of the largest bands, who might be able to put the most pressure on them and who earn ASCAP the most money.
If I were a songwriter, I would ask ASCAP whether my property was being defended as zealously as that of Zep and VH. Certainly I didn't see ASCAP chaining the doors of my local elementary school, whose annual pageant included a version of "Secret Agent Man."
Of course, I would also ask whether the suit had something to do with the Zep cover band being lesbian.
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Re: Re: wow.. amazing..
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Re: Re: ...and yet again....
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Re: ...and yet again....
The fact that he left his band behind hurt the band members. The fact that he did not include them in his bio was a slap in their faces.
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Close, but no cigar...
And forty grand for ten songs isn't?
Pot. Kettle. Black.
I understand the need to compensate composers for their efforts, but this seems just a trifle heavy-handed.
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ASPCA??
American Society for Prevention of Cruelty to Animals?
:)
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Re: Re: Re: ...and yet again....
I wonder if Marilyn Manson pays licensing to do covers? I know for a fact that they do covers, I've even heard them cover Type O Negative (a much less known band).
From what I've seen of cover charges and what cover bands get paid, I'd say don't quit your day job or you won't be able to afford to play at most venues. Unless you are a popular cover band you won't make minimum wage on cover charges, and if you have more than four band members then you're practically playing just to cover instrument upkeep while praying a scout sees and like you.
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Re: Righteous Indignation is Misplaced
I have seen people cover popular Christian music in churches. Would the churches be equally as subject to such fines, or are non-profits exempt? If a business can claim it is not taking a profit on a night that such an incident occurs, can they get the same exception, or does "intent to profit" then come into play?
Can live performances be protected under our right to free speech in the US, or does that whole profit margin actually negate such Constitutional rights?
Sounds to me like ASCAP just needed some spending money...
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I've said this b4
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Ha!
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Lawbreaking
Now, I'm not equating music with human rights, but the point is if a law is truly ridiculous, speak or act out against it.
Read this http://archive.southcoasttoday.com/daily/08-96/08-23-96/b02li056.htm
and see how you feel afterward.
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If you think ASCAP is going to make a profit off of a $40K lawsuit you've clearly never been involved in litigation.
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If the owner got a license he'd have saved about $
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Re: I respectfully disagree
This analogy makes sense only if all ASCAP music were freely available to anyone at any time in the same way that Techdirt content is.
Last I checked, ASCAP music isn't freely available, and this fact forms the base point presented here earlier. ASCAP litigation of free distribution points is a negative business model because it severely impedes product recognition in the free market.
On the other hand, I'm not losing any sleep over lawyers bleeding the ASCAP or RIAA into a dry husk.
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My plan is to go after people (clubs, networks...)that "cover" jokes and comedy bits without paying royalties.
Look out Mencia, you are first on the list.
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Re: wow.. amazing..
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Re: Re: Quick Response
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when a restaurant plays music, id think its wrong it has to pay any fee. Cause the music isn't the reason why customers go to said restaurant.
but when a club gets a band to perform the clubs income comes from said music so who ever owns the rights to those songs is entitled to there cut.
and thats were the ASCAP comes into play here (if the musicians gets his cut or not thats an other story)
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Re: Re: Re: Re: ...and yet again....
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Re: wow.. amazing..
Actually I'd argue that ascap is making money on the work of another person. The band actually played the songs themselves, put their own feel into it, whether they intended to or not. All ascap does is demand money whenever someone plays some elses song.
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Are you saying that the band doesn't profit from this? That's ridculous. Live music in general will draw a larger crowd, not which songs they play (although admitedly the songs they are know to play are also a draw). If anything the songs the band play make the band a bigger deal, and hence more profitable by playing what they play. If they play it well, they will get more gigs. My opinion, is that teh bands should pay the fees, and use that as leverage for what they charge, the bar or club owner for what they perform. That at least would induce the original goal behind intellectual property and copyright by encouraging these bands to come up with original material. They won't do that so long as they are not responsible for what they play.
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Re: Close, but no cigar...
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so
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quick reply..
Spork - yeah Type O Negative is a smaller, lesser known band than Marilyn Manson. Roadrunner records isn't exactly a large label :)
The Man - that is a great idea actually. I bet Comedians would pay for a similar service to protect thier work. good luck with that. ;)
Stephen - I don't think that the line quotedd is snide or dismissive. You do have a small point that they should chase everyone, but then again, the cops should ticket every speeder too, but sometimes they just issue a warning. You have a problem with that too? Just asking :D
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TEchdirt rip-offs
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Stupid
As for clubs/bars, a pub in Portland, OR had this same thing happen where a band played a cover song and the RIAA is hounding him. He almost had to close his business because the fees they wanted were so high!
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I found the entire post snide and dismissive, not that one line in particular, but the post did raise some good points.
Your speeder analogy is flawed because it suggests that ASCAP might have let the bar owner off with a warning. To use that analogy, I'm saying ASCAP is only going after certain speeders and fining them, while letting others go. In NJ, that attitude leads to tickets for "driving while black" and the governor having to beg for a ticket for not wearing his seatbelt after getting into a huge accident.
Here's what I'd like to know: Does a venue have to pay ASCAP if a band performs its own ASCAP songs?
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Clarification
1) The RIAA has jurisdiction over RECORDINGS as given to them by their members. Nothing else. The have jusrisdiction over Britney Spears' recording of "Baby...one more time".
2) However, If I had written the song, "Baby...one more time", It is the Jurisdiction and duty of ASCAP to tell Britney to pay me royalties for that use. ASCAP protects the Writers.
3) If I sell albums of my favorite Bon Jovi songs, that I recorded myself singing and instrumentally performed myself, I can do that. No matter if it sounds almost identical to Bon Jovi's recordings, the RIAA cannot prevent me from distributing those albums. However, Bon Jovi (who writes most, if not all of their own songs) has the right to sue me for their due right to use roalties.
4) the other important note. ASCAP does not have the authority to grant/deny permission for performance of a song. The performance venue (in the case of a live performace) or the recording studio (in the case of a recorded album) is required to pay fees to ASCAP for the right to perform said song. They pay the fee and they have the inherant right to allow performance. There are multiple options, one can pay a per song per use fee (commonly done with smaller recording studios) where they pay per copy sold/performed. or they can buy a blanket policy (done by clubs, churches, etc) in which they can perform any song, unlimited times, within the list of works under said policy.
I hope that clears a few things up..... Thanks for your intelectual understanding of the issue.
PS. I only referenced Britney Spears as she was one of the only artist that I could think of that everyone knows, but doesn't write her own music (I could have used any of the the teeny bopper artists of the late 90's, but chose the beautiful, bald one)
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RE: Stephen
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Re: Stupid
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As a musician myself, dealing with SOCAN (the Canadian equivalent), I see absolutely nothing wrong with this. I assume ASCAP is quite similar. Here's how it works -- every establishment that plays music pays licensing fees to SOCAN. This isn't just live music. Even playing CDs in a coffee shop they're supposed to pay fees. These fees are generally quite reasonable. They also collect money from radio stations, so you it doesn't cost you anything to put on the radio. SOCAN samples radio playlists, they sample what's being played at bars, and try to approximate how much market share a given artist has at a given point in time. The system of course isn't perfect, but it is entirely non-profit, and the money goes directly to the artist.
Anyways, they're not paying a $40k fine for this one cover band. That's just the incident they got caught with. If you ride the subway, you gotta buy a ticket. Deal with it.
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TechDirt Rip Offs
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Re: I respectfully disagree
This is a bizarre statement. Have you looked at the cover band market lately? They tend to help promote bands quite a bit. Bands that actually get cover bands tend to be a lot happier because it shows how big they've become. It helps promote their music. It actually gives them more incentive to create more music.
I agree that in general it's good if FOB can get their music out further. But, I know that FOB puts on a crappy live show. My big corporate-backed band could put on a much better live show with the same music. Fans of the FOB experience would come to my show rather than the FOB show. FOB would get nothing from my FIB tour. Zip, zero, zilch.
Again, I'm wondering if you've paid attention to the real music world. People want to go see the real thing and will pay a tremendous premium for it. If the cover band puts on a better show, then that's great, but it's quite unlikely to harm the original.
It's entirely an empirical judgment (about which we have no evidence) whether the world is better with knock-off cover bands replacing the original artists on tour.
What do you mean there's no evidence? Look at the world of cover bands today.
. It'd be like saying that I can make a full copy of Techdirt without permission so long as I pay a fixed royalty to you. Your proposal would say that the market for Techdirt is better off if I can copy Techdirt for free and put my own advertising on the mirror. I'm going to guess that you would sue if I were to site-skim the entire content of Techdirt and post it on my own site with advertising all over it, even if I attributed the content to Techdirt. (If not then let me know -- I'd be happy to run the experiment.)
At least once a week someone seems to make this suggestion and at least once a week I respond in the same way:
No, I will not sue. There are many sites that already do this (around 7 to 10 last I checked). In fact, we have an RSS feed to make it even easier. Here's why it's dumb, though:
(1) Those sites never get any traffic. It's a waste of your time and bandwidth.
(2) If people do discover those sites, it takes them about 3 minutes to realize the content actually comes from Techdirt. Then most people come to Techdirt instead, realizing they can get the original content faster here. So it helps us. Thanks.
(3) People also realize that if they read Techdirt here they can actually engage with the authors, which they simply can't do on your site.
(4) Finally, it destroys your reputation, because people start wondering why you would simply copy Techdirt content rather than actually adding value. You can copy my content all you want, but if you destroy your own reputation that's hard to get back.
So, basically, copying our content ends up being bad for you and good for us. Why would I complain? Go for it! As I said, a bunch of sites already do this. I'd appreciate it if you let me know what site you do this on. It's fun to watch them.
I think the proof of the folly in your argument is that hundreds upon hundreds of bands do voluntarily choose to associate themselves with ASCAP
Right, because that's the way people like you insist it needs to be done. As more people find out that it doesn't need to be done that way, you may start seeing a shift in the other direction.
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Re: wow.. amazing..
But the original band IS being compensated. They're getting extra publicity and more people thinking about their songs which can easily lead to more money elsewhere. The fallacy is that promoting something isn't compensation.
If you worked at McDonald's and I stood on a busy street corner selling maps to your McDonald's, would you complain? I've made money on your work, but I've done so by helping to promote your business. You'd probably be thrilled. Why not in this case?
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Re: Re: wow.. amazing..
Actually, we're running a very successful business advising companies, but if you want to speak from a position of ignorance, that's your choice.
ASCAP, BMI and SESAC have been around for decades and have always required venues obtain performance licenses. Any business that profits from a musician's intellecttual property must have a license and that includes your local doctor's office if he uses a music-on-hold system.
No one denies they've been around for decades. That doesn't make them any more reasonable.
I challenge any of the dopers on here to create anything the public wants and let's see them give it away. Oh yeah, you'll have to provide the bandwidth to download it if it's digital, or the printing costs if it's not.
You are reading this site for free, aren't you?
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Re: TechDirt Rip Offs
Well, first off, we don't sell "content." We sell a service where we *create* new, custom useful analysis for our customers. There's no "subscription" to a general feed or anything like that. Since the content is entirely custom, the value is usually to that customer and that customer alone.
However, in our contracts, we do allow our customers to do what they want with the content, even if that means selling it to other parties. We had a customer that did exactly that. They had a number of financial institutions that were their customers, and they repurposed the content we created for them and gave it to their customers. It worked out great. We made plenty of money for our analysis, and the company that resold it made a profit as well.
The best part was that this expanded our business quite a bit. Many of the customers of that other company later came to us and asked us to do additional custom work for them. Win - win.
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Licenses
(I read the OA so I am basing this on "Public venues that play ASCAP registered songs, which number in the millions, need to pay an annual fee for a license to do so.", I didn't look it up further, so I am not sure what I am going to say is how it works in the US, but I know how it was/is in Europe from when I used to live there.)
I am assuming, from the wording as well as how it is in Europe, that the club/concert venue would even need a license if Led, not Lez, Zeppelin would be playing...(maybe ASCAP wouldn't sue in that particular case, but still, I think/assume that they could): that just nicely illustrates the dumbness of the current situation...
Over time, a lot of IP related laws and rules have been perverted by greed, just to squeeze out the last buck possible, which is stupid, as blind greed always is, but I digress...
Copyright or whatever you want to call it, should safeguard an IP holder from "loss of income" as I see it.
It should not cover an IP holder having any right to deny anybody reproducing, using, or making a profit from his IP, (not even when your subsequent use of somebody's IP is merely to ridicule him/it...he can still always sue you for defamation or whatever else might be appropriate). There should be a fixed rate, depending on the kind of IP and the loss sustained.
To use the brothers' example: if FIB would make a cover CD with songs from FOB, FOB should be allowed/able to prevent FIB from doing this, but they should get paid, let's say a "license fee" for every song/copy sold, because it is foreseeable that people might not buy the original album by FOB. This amount should equate to what FOB would get from the sale of a copy of their own released CD.
As far as performances go, unless FIB would be performing themselves within a reasonable radius of where FOB might be performing, people going to an FIB concert will conceivably not cost FOB any money...because if FOB puts on a crappy live show, people will stop going to their crappy live show, because it is crappy... the decision(s) they make is not: am I going to this crappy show or to that good/better show? but: am I going to this crappy show? No. am I going to this good show? Yes.
Anyway, there is no loss to FOB. Or generally speaking, there is no loss to the owner of the IP.
Will a venue, a bar, a restaurant,... make more money by playing music (or having live performances) than when they don't? Of course. Does this cost the IP owners any revenue? Let me rephrase that question: would the IP owners have more revenue if said venues, bars, restaurants,... didn't play their music? the answer is obvious: of course not.
I know car analogies are always popular, so I figured out one so I could include it :-)
Once I buy a car and drive it as a taxi, all fairs are mine, the car manufacturer doesn't have a right to a cut.
In short: IP owners should be paid a (fixed) rate when others use their IP in a way that foreseeably is resulting in a loss of income for the IP owners that they would receive if those others did not use their IP.
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Agree, but where to do we go from here
What's your long term vision/goal/strategy for the TD collection? How do you suggest getting local congressional leadership to consider some of these points, and provide visibility to some of these ideas and get the wheels turning for change, real change?
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ASCAP licensing costs $40k
Interesting that it balooned 40k. ASCAP should consider another alternative that does not utilize the legal process, because this is surely how the costs grew so quickly.
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Fury and Furious
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Re:
In your opinion.
ASCAP and SOCAN don't get a dime, eh? Now you've really lost all credibility. (cue music for the backpedal boogie)
There's an old principle in common law known as "unjust enrichment" which generally says that it is unjust for a civil plaintiff to recover more than actual damages. That's why, for example, if someone puts a door ding in your car in a parking lot you probably successfully sue them for a billion dollars as "punishment".
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Re: Re: wow.. amazing..
Mike, your analogy isn't exactly the same is it? a more correct analogy would be if you had a restaurant on the other side of town named McDogal's or something and had simliar looking imagery and a similar menu. Now your offering basically the same thing as the Original, with a slight change. a "Cover" of it. Making money off of another person's trademarks or copyrighted items (even if it is because your a huge fan of the Big Mac(c) and want to make yor own. You would be sued out of existance within a month. I agree that cover bands can be beneficial to the original store, just not THAT beneficial. The cover band is riding on the coattails of the original band.
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Re: Licenses
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Re: Re: Re: wow.. amazing..
Now if some hamburger joint wants to make a hamburger similar to some other's they can do so so long as they don't try to make people think that they actually are the other. There are hamburger joints all over the US that sell similar hamburgers and yet they aren't all suing each other.
You seem to be confusing issues of trademark with issues of copyright. They aren't the same.
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Not an "economics of free" theory application
Music in bars and restaurants is not an application of your "compete-with-free" theory. Composers and authors can and do prevail in insisting that they are paid a reasonable fee for the use of their material. The audits and procedures are in place to reach this result. If the songwriter is not paid then there is no performance opportunity for the live performer unless they 100% control all their own original copyrights (rare). My back of the envelope calculations are that the bar owner is paying about .02-.03 cents per person per night of music to the songwriter through ASCAP. By paying this fee the market is blanket cleared for all live performances. So that payment permits the live performance rather than restricts it. It creates live performance events and then allows the other parts of your "economics of free" to work.
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Re: Not an
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RE #70
Yes, ASCAP can take this to an extreme. I worked for a company that was doing some customer service work for them. One day, someone from ASCAP called up and they could hear faint music in the background. Turns out that someone had the radio on and later that day every personal radio was taken away.
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omg
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Re: Re: TechDirt Rip Offs
But you, as the rights holder get to make that choice. You choose what's in the contracts you use.
You're suggesting that composers should not have the right to make the choice to give their work away or to sign with a licensing agency. You want to make that choice for them.
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Re: Re: wow.. amazing..
Again, why do you get to decide how others want to be compensated for your work.
The rights holder gets to decide what is fair compensation.
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In 90, I meant "their work", not "your work".
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@#89
ASCAP, on the other hand, represents the original writers. They stick up for the ones who arrange words into a song. Sometimes this the artist, but sometimes not, in the case of many pop songs being churned out these days.
If you ever work in film, you'll need to deal with both of these beasts, but if the studio (riaa) won't grant a license, then you could have a coverband sing the song for you.
The process is too complex and too many variables which is why most TV shows and films score their own music.
This is why I come back to IP needs to focus more on licensing practices rather than this 'He stole it' ideaology which is self propetuating, damaging, and only benefits the lawyers.
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For the 'ASCAP needs to exist people'
Other than 'they have more money than any random band'?
I look forward to the 'defenders of the ASCAP' to answer that.
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Re: So....
A pity too... I like the older music created by both bands. Too bad for them. P2P ftw!
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Mind your own business!
To the gentleman who attacked me saying that it was only my opinion that the fees are generally "quite reasonable": Here is the schedule of fees to be paid to SOCAN in Canada (remember, I was only speaking of SOCAN, not ASCAP, so if something is very different in the US just say so): http://socan.ca/jsp/en/resources/tariffs.jsp
In the case of live entertainment, the bar needs to pay 3% of what it paid the band to be there to SOCAN.
Furthermore, let's read the FAQ: http://socan.ca/jsp/en/about/faq/index.jsp
It explictly says that it gives all its royalties to the members.
Finally, why is the bar owner sued? That's like asking why the bar without a liquor permit gets in trouble if I'm the one drinking the beer. They pay the band to perform there, in turn it is their responsibility to have the proper licensing to facilitate that.
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Those are very interesting documents. Here is the ASCAP link: http://www.ascap.com/licensing/. I found their definition of "public performance" an good balance of reasonableness, although they don't define "small":
"A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative. However, there are a few limited exceptions, (called "exemptions") to this rule. Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast). Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt."
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Actually, what's interesting that most people don't realize is that the fact it's a cover band is irrelevant. Even when my band performs 10 original songs, it is important that the bar pays their SOCAN fee. When the bar pays us $500 at the end of the night for our performance, they are paying us strictly for the performance -- regardless of if we played our own music or not. But to get paid for composing the music and writing the lyrics, that still goes through SOCAN. In theory, every $500 gig you play (of your own songs), you should have $5 less fees = $3 to $4 coming to you from SOCAN. I'm not a huge serious musician, but I do enjoy my ~$50 once a year :).
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Organizations like ASCAP and SOCAN have been around for over a century, and the rules have never really changed much! Isn't talking about a band playing at a bar a bit out of scope for this blog?
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Re: Mind your own business!
ASCAP doesn't guarantee anything.
RIAA doesn't guarantee anything.
Everything on TD I've read in the past year has been about the lifecycle of an idea, sometimes it's expressed through lyrics. But it's all the same. Because your someone who is smart enough to file a piece of paper ahead of everyone else, no one can build upon the ideas you have?
This landgrab ideology will not survive longterm. Unless my name is Bill Gates, I can't license "Start Me Up"? (Windows 95 Reference)
For crying out loud...
IP is about claiming property. As a business, entreprenuer or owner of that property, your goal should be to license it so you don't have to escalate it to legal.
Let me make it more clear- the business is setup for you, all you need to do is setup a scalable framework which will allow end users to license your content or idea.
This is where ASCAP and RIAA don't understand the model.
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Re:
No.
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Everyone on TD is a poo-poo head
ASCAP doesn't guarantee anything.
RIAA doesn't guarantee anything.
Everything on TD I've read in the past year has been about the lifecycle of an idea, sometimes it's expressed through lyrics, sometimes it's the idea of wireless email.. Patent, copyright, PerformanceMark... It's all the same. But because your someone files a piece of paper ahead of everyone else, no one can build upon the ideas you have?
This landgrab ideology will not survive longterm. Unless my name is Bill Gates, I can't license "Start Me Up"? (Windows 95 Reference) (This license cost MS $1,000,000, simply because they said "It'll cost him a million dollars" probably when drunk, stoned et al)
For crying out loud...
IP is about claiming property. As a business, entreprenuer or owner of that property, your goal should be to license it so you don't have to escalate it to legal.
Let me make it more clear- the business is setup for you- all you need to do is setup a scalable framework which will allow end users to license your content or idea.
This is where ASCAP and RIAA don't understand the model.
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More Ranting by IC
Virtually all companies require, as part of your hiring paperwork, an exclusive right to review and gain ownership to any Copyrights or Patents you file while your working for them.
In my mind, this goes totally against personal ability to innovate.
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Re: Mind your own business!
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Re:
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I won't speak for ASCAP, but SOCAN is exactly that. You pay an annual fee based on how you used other people's works in your business. The composers, sonwriters, etc get paid. Scalable from $0.04 per day to whatever.
What does this have to do with anything we're talking about here? OK, so if you wrote a song for a company and signed away your rights to it, they'll get paid instead of you. Hopefully you were appropriately compensated for giving up that right when you went into business. But I can certainly attest to the fact that I have never signed any authorship rights away. And if my work could be performed around the world and profited from without any attribution to me, then yes, that would restrict my motivation to innovate. Either way, I'm keeping my day-job.
They cover their operating expenses, and give the rest to members. No need for quotes. Go write a song and you can become a member too. Not backpedaling on anything. Can you stop being snippy and juvenile in your comments to me?
One more thing I just learnt: as far as live performances go, fees are only collected if the club charges over $6 for cover
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Re: Re: Re: Re: wow.. amazing..
how is it faulty? do most cover bands not play the music of the band they are covering? do they not take a similar name, or thier name from a song? do they not tend to mimic the original band in appearance?
so if lez zepplin covers led zepplin, then McDogal's covers McDonald's right? No I am not confusing copyright and trademarks. You can't copyright a hamburger - and I was using Mike's McDonald's example. So my analogy was spot on. Cover using a similar product and appearance to mimic the original. thanks for your input though! Mike.. nothing to comment back?
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You can't copyright a hamburger, but you can copyright your brilliantly unique recipe. If people want to mimic your special hamburger following your copyrighted recipe, they are free to do so, but you have the right to ask them to give you a 1% cut of their profits.
In the live cover band scenario, performance rights are automatically granted to the artist, however, royalties still need to be paid. The onus is on the club owner because it's a hellof a lot simpler and economical to track down one person for $500 than 100 people for $5 each. If the club owner wants to dock $5 from the pay of each band claiming ASCAP fees, that's more than fair.
If you're gonna ride the train, you need to buy a ticket. You can't cry and plead ignorance to the law after you get caught riding for free.
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Re:
Folks, don't listen to Maciej. Go ahead and keep making your hamburgers. As much as Maciej might want it, there is no ASCAP of hamburgers that is going to come demand $40,000 dollars from you for doing so. And when Maciej tries to justify a club owner having to pay $40,000 because a cover band played 10 songs, well, just remember the source.
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Re: Re: Re: Re: Re: wow.. amazing..
By the way, the shift key on your keyboard seems to be broken.
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ASCAP
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America cannot afford to have the music industry collapse.
18 years olds are dying in Iraq and Afghanistan, thinking they are defending our freedoms. But our freedoms are being stripped from us more and more. Invasive, warrantless molestations at airports - and now, cover bands being illegal. Land of the free? Not anymore. :(
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Royalties
What do you sell for a living? Do you get paid for it? How about if everything you create I take and use for free and give you nothing. My family was in entertainment for, well as long as I have been around, long time, they always paid BMI/ASCAP for rights even if we did not make money on a deal. Why? Because we know that others in the industry deserve their pc. If something is popular the "writer" should be paid every time it is used. The amount of self entitled, it should be free for me, mentality in this country is amazing to me. Ever wonder why we are so deep in debt - look in the mirror.
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Everyone saying ASCAP is greedy is a bunch of idiots
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Re: Re: Re: Righteous Indignation is Misplaced
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Re: Re: wow.. amazing..
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