Music As Torture: Are Musicians Whose Music Is Blasted At Gitmo Compensated For Public Performance?

from the wondering... dept

Tue, Jul 8th 2008 6:55am — Mike Masnick

A little over a year ago, we reported on the news about US military officials playing loud rock music as "torture." Basically, they would blast loud music over and over again at folks who they thought would be annoyed by it. When we wrote about it, we were wondering if the US government actually paid royalties on the public performance of the music. Apparently, we're not the only ones questioning that. Howard Knopf discusses a musician who is (reasonably) upset that his music is being used in this manner, and questions whether or not the various collection societies are getting their cut of these rather public performances.

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Filed Under: copyright, performance rights, torture

50 Comments

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Anonymous Coward, 8 Jul 2008 @ 7:10am

Likely not an infringement under US Copyright Law. Moreover, there is the problem of the hurdles imposed by 28 USC 1498(b) and (c).
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Crosbie Fitch (profile), 8 Jul 2008 @ 7:50am

The right to life
This is like wondering whether Chinese dissidents due for execution have given permission for their organs to be harvested.

No cold hearted bastard should give a toss whether royalties have been collected from use of their work for torture. The first thought should be to petition for the human rights of the torture victim.

Even when rights to life, privacy, or truth aren't impacted, for all copyright infringements, consider that even this suspends the public's natural right to cultural liberty.

Rights first. Royalties last. Privileges never.
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SteveD, 8 Jul 2008 @ 7:51am

Hold on a second...
Hold on a second; someone is actually more concerned with royalties from tourture then the fact that a western nation is involved in torture?

If the US can set up Gitmo so it gets to pick and choose which human rights laws to follow, its a little nieve so think potential copyright violation is going to keep anyone up at night.
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CM, 8 Jul 2008 @ 8:02am

When did the common use definition of torture turn into something as pathetic as loud obnoxious music used to get information.

I mean, if preventing a criminal from having Basic Cable eventually got someone to talk, would that be torture?

Im aware that there are plenty of flaw in my logic here, but common, loud music all day and night is annoying, and probably would break me after a while, but people need to stop throwing around the torture word for anything less then wooden shard inserted between the fingernails.

"Is it safe?"
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Laughing my ass off, 8 Jul 2008 @ 8:05am

was any money made in this performance?

There is your question and answer.
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SteveD, 8 Jul 2008 @ 8:16am

Re: CM
When loud music is used in combination with stress-positions or sleep deprivation the definition is a little less fuzzy.
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Ortzinator, 8 Jul 2008 @ 8:27am

Ugh
Anything beyond asking nicely is considered torture these days.
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CES, 8 Jul 2008 @ 8:28am

DJ
I'm pretty sure local party DJs don't pay royalties every time they go out and play gigs. Point of the matter is the music was paid for and then played over speakers to the public. Musician already got their money - no need to get paid twice.
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club gitmo, 8 Jul 2008 @ 8:31am

Re: Re: CM
torture
–noun
1. the act of inflicting excruciating pain, as punishment or revenge, as a means of getting a confession or information, or for sheer cruelty.
2. a method of inflicting such pain.
3. Often, tortures. the pain or suffering caused or undergone.
4. extreme anguish of body or mind; agony.
5. a cause of severe pain or anguish.

It does not fit the dictionary definition of torture as far as I can tell. There is no excruciating pain or severe anguish. It may be annoying as hell, but without some sort of actual pain I find it a bit of a misnomer to call it torture. Perhaps the correct word might be torment.

torment
–verb (used with object)
1. to afflict with great bodily or mental suffering; pain: to be tormented with violent headaches.
2. to worry or annoy excessively: to torment one with questions.
3. to throw into commotion; stir up; disturb.
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James, 8 Jul 2008 @ 8:32am

Wait...
...if its meant to be torture why aren't they playing Brittney Spears???
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Anonymous Coward, 8 Jul 2008 @ 8:34am

OH NOES!
Horrible Travesty! Someone get Bobo's Manager... Err, I meant Bono's Manager, McGuinness on the phone. The internet isn't ruining music, the Terrorists are!
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bailey, 8 Jul 2008 @ 8:41am

Re: Re: Re: CM
It does not fit the dictionary definition of torture as far as I can tell. There is no excruciating pain or severe anguish. It may be annoying as hell, but without some sort of actual pain I find it a bit of a misnomer to call it torture. Perhaps the correct word might be torment.

If you are only using that as a definition then Sleep Deprivation would fail the test(even though it can lead to death.) and quite possibly water boarding since you aren't feeling actual pain as much as the psychological effects of drowning.
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Anonymous Coward, 8 Jul 2008 @ 8:43am

You expected royalties to be paid to artists? Well, the best indicator of the future is the past.

To get to this point, let's research how much royalties were paid out to:
1) People sued in any RIAA-sponsored lawsuits
2) People sued in any Label-sponsored lawsuits
3) People sued in any ASCAP-sponsored lawsuits
4) Blank media taxes
5) Efforts to find Lost artists (Artists that labels literally lost track of)

Judging from the look of things, Ed McMahon isn't delivering a million dollar check to anyone except those that are involved in the legal side.
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Anonymous Coward, 8 Jul 2008 @ 8:54am

Re: Wait...
The whole discography of Cannibal Corpse over and over might move from the torment range to the torture range hehe.
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Hulser, 8 Jul 2008 @ 9:05am

Re: Hold on a second...
Hold on a second; someone is actually more concerned with royalties from tourture then the fact that a western nation is involved in torture?

Perhaps the musician in question is more concerned about his royalties than the fact people are being tortured -- probably not -- but I think the point of Mike's post is how absurd the current model is. Specifically, if the recording industry thinks that it deserves money when the sound of a radio in a restaraunt's kitchen spills out into the dining room or that it can charge a bar owner for access to an entire catalog of music because a live band played one cover song, then it's not so absurd (from their standpoint) that they get compensated when their music is used in toruring people. It's pointing out that, using the music industry's own rules, using music as torture doesn't excuse you from having to pay up, which just shows how absurd the rules are.
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Chronno S. Trigger, 8 Jul 2008 @ 9:08am

Re: Re: Re: CM
Go with definition #3 of torture. "extreme anguish of body or mind; agony". That's how the Chinese Water Torture is called torture.
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Sarcasm, 8 Jul 2008 @ 9:17am

Re: DJ
no need to get paid twice.

You're obviously just a freetard that thinks everything should be given away.
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suckerpunch-tm, 8 Jul 2008 @ 9:27am

I think I am missing the boat on the whole concept of royalties being paid on music that is played.

If I buy the CD (or whatever) haven't I paid for the right to, ummm, play it? Why do musicians need additional money after I have already purchased it? What did I pay for, just the plastic?
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Alimas, 8 Jul 2008 @ 9:31am

I don't think the torture aspect is actually the music.
No matter how bad it is.
If your in a prison with guards that hate you and your head is covered and they are playing music very loudly in your area - your concern isn't the music its the sounds of whats going on around you that the music is covering up.
This seems like only half the torture method made it out to the public, the other half involves when the prisoner gets attacked by some physical force during his disorientation and then is left in the noise, scared to death of another attack he can't detect.
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Alimas, 8 Jul 2008 @ 9:32am

That And..
I think the artist is just pissed his music is involved in torture and might be just hoping to get them to stop using the music or atleast his songs specifically.
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Crosbie Fitch (profile), 8 Jul 2008 @ 9:37am

Re: Re: Re: Re: CM
There is actual pain (try inhaling water sometime). You are actually drowned. The only difference is that your lungs are emptied and you are resuscitated before brain death occurs (if your torturers prefer the continuation of your life - usually to repeat the 'waterboarding').
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Hulser, 8 Jul 2008 @ 9:45am

Re:
I think I am missing the boat on the whole concept of royalties being paid on music that is played.

You're not missing the boat. The whole thing comes down to the definition of "public performance". If it's public, then ASCAP wants its cut.

But based on the linked articles, David Gray, the musician in question, isn't the one demanding royalties. It's Howard Knopf, the author of the blog linked to in Mike's post, that theorizes that using music as torture at Guantanamo might be considered a "public performance" by ASCAP using its own absurd rules and tortured logic -- no pun intended -- of some of its previous lawsuits. In short, Mr. Knopf is pointing out that ASCAP has tried to broaden the definition of "public performance" to such ridiculous levels, that even using music to torture someone would fit their new definition.
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Raven, 8 Jul 2008 @ 9:55am

Music as torture
If it was my music, and they were using it as a torture at Gitmo..I would be extremely pissed off. The royalties not withstanding, I would not want my music used as a torture.
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Taking one for the team, 8 Jul 2008 @ 9:56am

Why not...
I get taxed twice. If the gov't can get away with it, why shouldn't a corporation be allowed to seek royalties?
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snurfle, 8 Jul 2008 @ 9:58am

I don't think that $.50 (or fiddy zent or whatever he's called) gets royalties when my neighbors blast his music 'till 3 in the morning, so why is gitmo any different?
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Taking one for the team, 8 Jul 2008 @ 9:58am

Re: Music as torture
How is Rock considered torture? I would kill myself if I heard NKOTB.
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eleete, 8 Jul 2008 @ 10:01am

Re:
By your reasoning, file sharing is legal too, no one charges for those either. Thank you for the freedom, but you are wrong.
Did police in the UK being harrassed about listening to their radios too loud make money? Did the person filming their kid with Prince playing in the background make money? Good going Counsel
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Hulser, 8 Jul 2008 @ 10:03am

Re:
I don't think that $.50 (or fiddy zent or whatever he's called) gets royalties when my neighbors blast his music 'till 3 in the morning, so why is gitmo any different?

This point is, if ASCAP and the rest of the music industry had their way, any public performance would require payment, where "public" is basically defined as anything other than a person listening to music on their headphones quietly enough that no one else can hear. But the MO of the music industry is to go after the easiest, richest target. So, your neighbors are safe...for now.
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eleete, 8 Jul 2008 @ 10:03am

Re: Re: DJ
And you're obviously one who enjoys a system of welfare for musicians.
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eleete, 8 Jul 2008 @ 10:06am

Torture !
The only purpose of the RIAA and MPAA is to torture its customers. Hopefully they fight it and lose
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Anonymous Coward, 8 Jul 2008 @ 10:08am

Fair Use?
All the torture stuff aside, isn't this the equivalent of playing a CD for a few friends? Just because there are people around to hear a CD being played does not make it a "public performance" such that royalties need be paid (despite the mess those British cabbies got themselves into). If interrogators need to pay royalties, then so would I when my neighbor can hear my stereo through my party wall. That doesn't sound right.
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Michael, 8 Jul 2008 @ 10:16am

It's not torture- it's just a huge annoyance. The loud music makes it hard to sleep, hard to think, impossible to concentrate, and you get tired. You lose your will. But it's not torture. It's been done in Army mock POW camps for years, to our own troops undergoing training. It's reasonably effective in wearing people out, but it's certainly not torture.
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Anonymous Coward, 8 Jul 2008 @ 10:34am

Re: Re:
Wow, could you know any less about PROs? Probably not.
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Butterflies and unicorns, 8 Jul 2008 @ 10:37am

Hugs and lollypops
It's culture! Welcome to America, Gitmo Friends!
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Hulser, 8 Jul 2008 @ 10:48am

Re: Re: Re:
Wow, could you know any less about PROs? Probably not.

And could your criticism be any more generic? Do you have a specific issue with what I said? I'll admit to a little hyperbole, but the basic point of my post stands, that Performance Rights Organizations, like ASCAP, are stretching "public performance" beyond rational limits. For example, does anyone other than ASCAP believe that it's OK to charge girl scouts for singing songs around the campfire?
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Anonymous Coward, 8 Jul 2008 @ 10:54am

i bet they played nickelbak
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JS Beckerist, 8 Jul 2008 @ 10:57am

Re: The right to life
Without getting into a huge flamewar...why should someone who has killed or tortured others be given any rights?

The right to life implies that they themselves would give the same liberties if the shoe were on the other foot, and they clearly would not.
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Uncle Deercamp, 8 Jul 2008 @ 11:50am

paid
We get checks all the time.
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some random guy, 8 Jul 2008 @ 11:50am

Re: Wait...
> ...if its meant to be torture why aren't they playing
> Brittney Spears???

Actually, one of the songs in question is David Gray's "Babylon". I sure wouldn't want to hear that more than once per millenium.
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chris (profile), 8 Jul 2008 @ 12:02pm

Re:
was any money made in this performance?

There is your question and answer.

doesn't matter and here's why:

downloading music is stealing, so not paying for something is the same as stealing it.

downloading music causes the industry to lose money, therefore not making money is the same as losing money.

er go, not paying for the rights to music is the same as stealing them, so gitmo is stealing money from artists, which i am sure we will all agree is terrorism plain and simple.
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DCX2, 8 Jul 2008 @ 12:25pm

Re: Re: The right to life
Look up the Chinese Uighurs.

Look up the name "Dilawar" - a 22 year old, innocent Afghani cab driver.

Look up how many people in Gitmo were collected by Pakistani or Afghani "bounty hunters" vs. "captured on the battlefield".

Not everyone the US detains in the War on Terror is a terrorist.
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Anonymous, 8 Jul 2008 @ 12:47pm

Re: DJ
Except that the artists and musicians think they should get paid when you buy their music, then get paid again if you actually listen to it. And if you listen to it where your neighbors might hear, then they want a performance license, as though the actual musicians jump out of the CD and start performing live, right there before your eyes. Greedy fucks.
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Anonymous Coward, 8 Jul 2008 @ 2:08pm

Short Answer: NO!
While I certainly wont argue the fact that the RIAA is contemptable... I like the angle the writer takes here (which in my opinion is a comical view of the RIAA). The RIAA has very strong ties into the Democratic & Republican Party. This torture issue is one the Dem's are championing like some sort of epic crusade. If the MSM (Mainstream Media) picked up on the story I am sure the RIAA would jump at the chance to try and come off as the good guy by outlawing the use of music for torture. Then behind the scenes they would not press the issue legally at all. They wouldnt dare damage their strong political connections for any amount of money. What should or should not be done does not matter (unless you wish to discuss ethics). The RIAA reaches deep into Washington. They make the law. They dont follow it.
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Anonymous Coward, 8 Jul 2008 @ 2:35pm

Re: Hold on a second...
Thank you Mohammed. Maybe you should do some real research and learn bout Gitmo instead of reading the DailyKos or listening to John Stewart.
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cheddar, 8 Jul 2008 @ 3:46pm

Re: The right to life
Uh huh, the poor babies.. Such torture, the villany of it all! Loud music is so terrible..
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Anonymous Coward, 8 Jul 2008 @ 7:52pm

Re: Re: Re: Re: Re: CM
No, you can't claim that waterboarding actually drowns the person, nor can you say that the lungs are filled with water. The idea is apparently to create the sensation of drowning, not actual drowning.

Pretty sure that not all artists would object to using their music for torture. I'm convinced that some genres really do intend to annoy.
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Crosbie Fitch (profile), 9 Jul 2008 @ 6:27am

Re: Re: Re: Re: Re: Re: CM
See what MALCOLM NANCE says on the subject: As a former master instructor and chief of training at the U.S. Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, I know the waterboard personally and intimately

In the media, waterboarding is called "simulated drowning," but that's a misnomer. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning.

Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

How much of this the victim is to endure depends on the desired result (in the form of answers to questions shouted into the victim's face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs that show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow-motion suffocation with enough time to contemplate the inevitability of blackout and expiration. Usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch. If it goes wrong, it can lead straight to terminal hypoxia - meaning, the loss of all oxygen to the cells.
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andro, 9 Jul 2008 @ 7:55am

What about Court of Claims?
I believe the artists and their representatives would be able to make a claim against the U.S. in the Court of Claims. The DoD is an executive branch agency and there are clearly defined rules regarding federal use of property without compensation to the property owners. In the unlikely event that should fail, I would think SCOTUS might have some thoughts on the 5th Amendment. Think of it: 2 choices: 1) the US violated copyright, therefore owes the artists compensation; or 2) the US did not violate copyright by broadcasting copyrighted material without a license.
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Anonyomoose coward, 17 Jul 2008 @ 4:36pm

US Govt not bound by copyright law?
I'm not sure that a claim of copyright infringement or failure to pay royalties would fly in court. If it was an official act of the US Government, as opposed to an individual's "rogue" action, then I don't think the United States Government is bound by copyright law, just as works created by the United States Government are in the public domain -- they belong to the people.
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Anonyomoose coward, 17 Jul 2008 @ 4:45pm

I stand corrected - maybe
http://cendi.gov/publications/04-8copyright.html#511

5.1.1 Does the U.S. Government have any special rights to use copyrighted material?

No, the U.S. Government can be held liable for violation of the Copyright Laws. Congress has expressly provided that a work protected by the Copyright Laws can be infringed by the United States (28 USC § 1498(b))117. The exclusive action for such infringement is an action by the copyright owner against the United States in the Court of Federal Claims for the recovery of monetary damages. However, there is no contributory copyright infringement on the part of the Government because it hasn't waived sovereign immunity rights. (John C. Boyle, 200 F.3d 1369 (Fed. Cir. 2000)118.

But then...

Additionally, there may be limited exceptions in the case of National Security where the public interest results in a privilege to the Government for use of the copyrighted work without the express consent of the copyright owner. (Key Maps, Inc. v. Pruitt, 470 F. Supp. 33 (S.D. Tex. 1978)) For further discussion, see "Application of the Copyright Doctrine of Fair Use to the Reproduction of Copyrighted Material for Intelligence Purposes"120 by Major Gary M. Bowen. The Army Lawyer (DA Pam 27-50-332), July 2000.

I'm sure this would qualify as a "case of National Security". Go directly to jail. Do not pass Go.
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