Federal Court Finally Says That Gag Order On 11-Year-Old National Security Letter Should Be Lifted Already

Time To Say Goodbye To All Pre-1972 Music?

from the PAY-US-screams-the-recording-industry dept

Tue, Sep 15th 2015 9:30am — Mike Masnick

As we've been covering over the past few years, there's been a big battle going on over the copyright status of "pre-1972 sound recordings." That may sound like a weird thing to be arguing over, but it's due to a weird bit of history in US copyright law. You see, for a very long time, Congress believed that copyright law could not cover sound recordings. However, various states stepped in and either through explicit state law or through common law, created copyright-like regulations for sound recordings. When copyright was finally updated in the 1976 Copyright Act, pre-1972 works were left out of the federal copyright system, even as federal copyright law basically wiped out all state copyright law for everything else. This has created some weird issues, including that some songs that should be in the public domain under federal copyright law are locked up in perpetuity. A simple and reasonable solution to this would be to just move pre-1972 sound recordings under federal copyright law and level the playing field. But, the RIAA has resisted this. That might seems strange, until you realize that the RIAA and its friends saw this weird quirk of copyright law as a wedge issue with which to try to squeeze more money out of everyone.

It started a couple years ago when basically everyone started suing Sirius XM and Pandora for playing pre-1972 music without getting a separate license to do so. Once again, the reasoning here is a bit complex, but prior to the 1976 Act, there really wasn't even any concept of a "public performance right" for sound recordings -- only for compositions. The idea of one for sound recordings only came into existence with the updated copyright law. But what the RIAA and friends are trying to do is to rewrite history and pretend that these various state laws also retroactively meant to include a public performance right, and that these newer services were violating it.

In a series of rulings in the last year, Sirius XM has lost a few of these lawsuits, while winning another one. This has many copyright scholars quite concerned that decades of settled law are being tossed out.

More importantly, we pointed out that this could mean the end of hearing classic songs from the 50s and 60s on internet and satellite radio. But, it appears that the RIAA and friends are not stopping there. Last month they took things up a notch and started suing terrestrial radio stations over pre-1972 music as well.

And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there's no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for -- rather than worth being paid for.

Every few years, the RIAA pushes to have Congress change the law, and to start making terrestrial radio pay a "performance rights fee" for sound recordings as well. But that never seems to get anywhere. So, instead, the RIAA appears to be attacking this via the pre-1972 loophole, and claiming that even though Congress explicitly has said that radio doesn't need to pay, such a promise does not apply to pre-1972 songs. The new lawsuits, from ABS entertainment, aims to be a class action lawsuit for a bunch of pre-1972 music, and has targeted terrestrial broadcasters who also stream online, including CBS, iHeartRadio (previously known as Clear Channel) and Cumulus -- the big three radio broadcasters.

In the meantime, one of the first original cases concerning this issue, against Pandora, has now moved to the 9th Circuit appeals court and a whole bunch of copyright experts have weighed in hoping that the appeals court will reverse the lower court and remind everyone that these state laws never included a public performance right in the first place. Unfortunately, this is the 9th Circuit, which is somewhat famous for its wacky copyright rulings, so pretty much anything goes here. However, should it come out in favor of the RIAA's position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well.

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Filed Under: copyright, copyright act, pre-1972 music, pre-1972 sound recordings, radio, streaming
Companies: cbs, cumulus, iheartradio, pandora, siriusxm

83 Comments

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Baron von Robber, 15 Sep 2015 @ 9:48am

Won't be long till the RIAA tries to copyright and get royalties for Happy Birthday!!.........................DOH!!
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Great_Scott (profile), 15 Sep 2015 @ 9:54am

The stronger your grip...
Bye-bye pre-1970's music. I'll miss you, but not nearly as much as the recording industry.

Hopefully they're so successful in locking up content that they go out of business.
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Anonymous Anonymous Coward, 15 Sep 2015 @ 9:59am

Re: The stronger your grip...
Exactly. It is as if they are planning their own obsolescence. Getting forgotten entirely will surely make up for all that money they plan on collecting.
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Anonymous Coward, 15 Sep 2015 @ 10:19am

So…they’re trying to kill off all the classic rock stations?
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Anonymous Coward, 15 Sep 2015 @ 10:23am

"However, should it come out in favor of the RIAA's position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well."

And if that happens people will not able to listen to it because it is not being played and therefore will not think gee i like that i think i go buy it and if people don't buy it because of not listening to it in the radio in the first place then less money will go to the RIAA etc. Well, i hope the RIAA will end up pleased with themselves when less people buying pre 1972's music.
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John Cressman, 15 Sep 2015 @ 10:24am

Good riddance!
Get rid of all of the pre-72 music! That'll show those mean, nasty radio stations...

And once the newer audience can no longer hear them on te radio and no longer wants to buy them on iTunes, then maybe the artists will rise up and smack down the RIAA... with their walkers!
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Anonymous Coward, 15 Sep 2015 @ 10:26am

But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Here's a brilliant comment on that, which is of course censored here at Pirate Bay West:
https://www.techdirt.com/articles/20150626/15490831475/siriusxm-finally-wins-case-over-pre-1972 -music-promptly-settles-such-cases-with-riaa.shtml#c183

So, while you characterize the 9th as wacky, better get ready for yet another decision that I agree with. Your track record on predicting similar court cases is well below flipping a coin.

Have to click to see comments the fanboys censored?

Get all the text and none of the ads with the new Techdirt Lite!
https://www.techdirt.com/?_format=lite
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Anonymous Coward, 15 Sep 2015 @ 10:29am

Re: The stronger your grip...
The recording industry is not interested in cultural curation, even though they assert they "own" these cultural artifacts. The bottom line is, more money is made on new product than older product. In an ideal world (for them), music would be locked up and made inaccessible after, say, five years.
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DCL, 15 Sep 2015 @ 10:31am

The revolution...
The revolution may be televised but not without licensing fees.
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jackn, 15 Sep 2015 @ 10:37am

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
You shouldn't end your sentences with a preposition.
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Anonymous Coward, 15 Sep 2015 @ 10:41am

"If we don't own it we will sue until we do"
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Anonymous Coward, 15 Sep 2015 @ 10:43am

Re: Good riddance!
Why would the Artists rise up, they probably haven't recouped yet, so they will not lose any money.
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Anonymous Coward, 15 Sep 2015 @ 10:45am

Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Well, if you want to be pedantic, strictly speaking a "preposition" is a word in front of another that it references. Anything that ends a sentence cannot be in front of anything else in that sentence and so, by definition, is not a preposition. A more correct rule would be "You CANNOT end a sentence with a preposition". This "law" of grammar is more myth than reality.
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Anonymous Coward, 15 Sep 2015 @ 10:51am

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
which is of course censored here...

Censored implies we would be unable to read it, in which case linking to it would be futile at best, ignorant at worst.

What you meant to say is "reported" which is not the same as censored (it can still be read if I choose to unhide it).

I know you know the distinction - you're just being deliberately obtuse...which is why I reported this comment as well.

Go fuck yourself.
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Rich, 15 Sep 2015 @ 10:52am

Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
I hate to agree with a troll, but he's right. Along with the "rule" about splitting infinitives, it was make up around 19th or early 20th century by two grammarians in an attempt to make English more like Latin (where such things are impossible). Before that, writers did this all the time.
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Rich, 15 Sep 2015 @ 10:53am

Re: Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Expect for it "not being a preposition" nonsense, because it still is. The rule being a myth is what he's correct about.
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Anonymous Coward, 15 Sep 2015 @ 11:03am

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Get all the text and none of the ads with the new Techdirt Lite!
https://www.techdirt.com/?_format=lite

But the ads supply a source of revenue for the site - why on earth would you suggest to use the lite version instead, and thus depriving the site owners the revenue they need to keep this site running?

It's kinda like stealing, no? Or facilitating stealing...

Hypocrite much?
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Anonymous Coward, 15 Sep 2015 @ 11:07am

Re: Re: Good riddance!
Not just why, but how? Ain't enough Celebrex & Viagra in the world to get most of those guys to rise up.
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Anonymous Coward, 15 Sep 2015 @ 11:15am

Re:
We need more stories like the Happy Birthday one.

And since pretty much all music is derivative, ESPECIALLY popular music from the 50s and 60s, it should be possible to invalidate many of the copyright claims on this music -- outside of specific recorded performances. When it comes to the performances themselves, I think what we need is the modern equivalent of Sha Na Na to go in and reproduce all the Chubby Checker et al recordings in a modern studio, being careful to make it sound as close to the original recordings as possible. Should be doable with modern vocal editing tech, and would have the added benefit that we'd end up with multi-track digital masters instead of just the old mixed-down vinyl masters.
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PRMan, 15 Sep 2015 @ 11:17am

Re:
And then people will buy more copies of all the current trash they are trying to peddle.
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PRMan, 15 Sep 2015 @ 11:19am

Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
It's only hypocrisy if it's not in their favor...
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jackn, 15 Sep 2015 @ 11:21am

Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
no fucks given
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Anonymous Coward, 15 Sep 2015 @ 11:31am

Christmas songs will be hit the hardest
Yay, if the RIAA is successful that means we won't have to listen to all those stupid old Christmas songs the dominate on the radio around the holiday season. The top 10 holiday seasons are all pre-1972, except possibly 1.

https://xkcd.com/988/

As for the rest of song genres, I honestly can't think of a single one I hear on the radio that's pre-1972. So I doubt I'd even notice if they'd disappear to.

At best for the RIAA this will just push purchases away from old songs and towards newer songs made to replace the old (especially among Christmas music). But most likely it won't make up for the money they lose in sales of old songs that will be forgotten.
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Anonymous Coward, 15 Sep 2015 @ 11:32am

Re: Christmas songs will be hit the hardest
Correction, the top 20 Christmas songs are all pre-1972. I made a typo. :(
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Anonymous Coward, 15 Sep 2015 @ 11:34am

Re:
No, they're taking the idiot signal and running with it so fast that Usain Bolt lost to it in the 100m sprint.
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Anonymous Coward, 15 Sep 2015 @ 11:38am

SO the main purpose of the riaa seem,s to be to sue startups and reduce music in the public domain .
And reduce the range of music paid on radio .
Most radio stations may choose to stop playing pre 72
music rather than getting involved in legal battles with the riaa .
theres plenty of non american based radio stations on the web that play classic rock ,pre 72 .
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Anonymous Coward, 15 Sep 2015 @ 11:43am

How does this not promote "piracy" from those who are left with limited options if the RIAA gets its way? At a minimum, I'm sure there are those who would do things in response to this to thumb the RIAA in the eye.

I used to pay for music, but they corrected me on that due to these type of moves. Thanks RIAA!! You taught us well.
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jackn, 15 Sep 2015 @ 11:46am

Re: Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
You shouldn't use blind THISs or THATs.
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Anonymous Coward, 15 Sep 2015 @ 11:51am

Re: Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
No offense, but all rules/guidelines in language are 'made up.'
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Anonymous Coward, 15 Sep 2015 @ 11:51am

Re: Re: Christmas songs will be hit the hardest
Really? The songs themselves might be pre-1972, but we're talking about performances in this article. That refers to the actual recordings. Most times I've wandered through a mall or tuned in a radio station in December, it's been modern recordings of the old standards that have been playing -- and THESE are all covered under modern copyright.
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Anonymous Coward, 15 Sep 2015 @ 11:52am

Re:
They make more money from suing pirates than they do selling music.
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Anonymous Coward, 15 Sep 2015 @ 11:52am

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Alas your track record on predicting court outcomes is roughly zero. You may now commence giving yourself coitus.
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Anonymous Coward, 15 Sep 2015 @ 11:53am

28 Years
Let's get our heads screwed on straight, and just go back to the original copyright term of 28 years. There is no need for it to be any longer than that.

You get:
1 14-year term
1 14-year renewal (not automatic)

There. No loopholes, no silliness. In either 14 or 28 years, it goes into the public domain.
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David, 15 Sep 2015 @ 11:54am

Good move
That which isn't heard, won't be bought. They will just eliminate any value to their back catalogs.
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Anonymous Coward, 15 Sep 2015 @ 12:02pm

Re: 28 Years -- Orphaned Works
Anything out of print (pressing, cutting, writing in blood, whatever) should be surrendered to public domain. If it's not worth keeping in production, it's not worth keeping protections on it. That should be one of the trade-offs for getting copyright protection in the first place.
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Anonymous Coward, 15 Sep 2015 @ 12:16pm

The only problem with the RIAA using state law is that they seem to forget that Federal law trumps local and state laws when they cover the same area, such as copyright law. If congress has decreed that terrestrial stations don't have to obtain a 'performance rights' license, then local and state law cannot require that terrestrial stations to pay for such 'performance rights'.
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Morgan Wick (profile), 15 Sep 2015 @ 12:34pm

Re: 28 Years
But! But then big corporations won't be able to monopolize properties for eternity!
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Anonymous Coward, 15 Sep 2015 @ 12:38pm

Re:
Number of albums I bought from 1993-2003: 500+
Number I've bought since the first RIAA suit: 0

MP3 changed everything. The RIAA labels could have chosen to adapt, but they chose litigation instead. I chose not to pay their lawyers to sue fellow listeners. To the RIAA: FOAD already.
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Anonymous Coward, 15 Sep 2015 @ 12:44pm

Re: Re: The stronger your grip...
The bottom line is, more money is made on new product than older product.

Not necessarily. From the label's perspective, these older recordings may be more profitable. The payouts are probably not covered under the royalty agreements with the artists. Even if the artists are owed money, many are dead, with wills that may not clearly define who gets the money, and the rest the label can conveniently "forget" to pay until the artist sues.
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Anonymous Coward, 15 Sep 2015 @ 12:45pm

Re:
No, they are convinced that the radio stations are sitting on piles of money that they don't know what to do with, and the RIAA is being helpful by taking that problem off their hands.
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Anonymous Coward, 15 Sep 2015 @ 12:53pm

Re: Re:
So, take a recording that has no performance rights attached to it and replace it with a soundalike version that most definitely does have performance rights attached???

That's sounds like a great work-a-round

Also for those who grew up in the commonwealth in the 70's, isn't this guy describing 'Top of the Pops' records? (minus the near naked girl on the cover)
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Anonymous Coward, 15 Sep 2015 @ 12:54pm

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Actually I would say that Mike has a decent record of predicting court outcomes, even when going against what the shills around here claim.

Who are you that we may assess your track record.

The shills still refuse to admit that they were wrong about Prenda law back when they used to absolutely insist that they would win. Mike got it right. I'm still waiting for the shills to muster up the integrity to admit that they were wrong but they never will. At least when Mike is wrong, which seldom happens, he faces up to it. The shills have no integrity whatsoever.
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Anonymous Coward, 15 Sep 2015 @ 12:54pm

Re:
Federal law didn't exist.
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Anonymous Coward, 15 Sep 2015 @ 1:03pm

I think part of the problem is that in what the RIAA and their primary labels consider an ideal world, there would be a few thousand classic albums' worth of material, and a couple thousand current and recent releases, and that's all anyone would ever hear or want or buy. They hate music discovery. They hate small indy acts and niche genres. They hate backlists and the long tail. The despise Pandora and all other forms of Internet radio, and they hate any music acquisition channels (probably including retail channels) that make it easy for people to get a hold of almost any recording they might want.
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Anonymous Coward, 15 Sep 2015 @ 1:14pm

Re:
No, they're trying to make large amounts of money from them.

Killing them is only the certain side effect of their actions.
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RD, 15 Sep 2015 @ 1:22pm

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
"Have to click to see comments the fanboys censored?"

Not actually censorship, since its not a single controlling authority blocking your comments, but rather the collective *opinion* of the *users* of the site.

Not that facts and truth have a single damn thing to do with you anyway.
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Anonymous Coward, 15 Sep 2015 @ 1:32pm

Re: 28 Years
"no silliness" - the renewal is an unnecessary silliness, it inserts uncertainty into what you want to be a simple situation.

for example:
x= 12 years old, is it public domain? NO
y= 40 years old, is it public domain? YES
z= 16 years old, is it public domain? I'm not sure, let me check against a database and I'll get back to you.
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Carlos Solis (profile), 15 Sep 2015 @ 2:02pm

If the copyright agencies around the world could have a saying about it, it would be time to say goodbye to all pre-1914 everything basically. Personally, I can't in good conscience consider anything after that date as public domain, not considering the copyright laws around the world.
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cpt kangarooski, 15 Sep 2015 @ 2:12pm

Re: Re: 28 Years
No, it's very important.

Copyrights should only be granted if, and to the extent that, they are in the public interest by acting as an incentive for authors to create and publish works which they would not create and publish otherwise. After all, if a work would be created and published regardless of copyright, we may as well not grant it; no need for a quid pro quo when you get the quid for free.

While it's impractical to do this perfectly for all works, we can shift most of the burden to the authors to identify for us which works need copyrights and for how long. This is best done by only granting protection to works if they're properly and timely registered and by requiring renewals so that we can grant long terms of protection to works that require it, while only granting short terms to works that don't.

It adds a small amount of work, but given a good online database and strict registration and notice requirements, it's not onerous. After all, it worked ok for copyrights for almost 200 years, and similar requirements are in in effect for parents and trademarks, not to mention all manner of other business regulations.

And what's the alternative, after all? If we can't grant the right amount of copyright, all that's left is to grant too little. Too much is simply too harmful to be tolerated.
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Anonymous Coward, 15 Sep 2015 @ 2:32pm

Re: Re: Re: 28 Years
Do you actually have any real evidence that copyright promotes the creation of the protected items? The fact is, none of Shakespeare's works had copyright protection.

About the only example I can think of is GPL software, which was created to get around copyright - ironic, that.
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Anonymous Coward, 15 Sep 2015 @ 2:55pm

Pre-1972 music will disappear because it will have to be paid for like post-1972 music? LOL uh no.

The site has turned into The Onion.
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Anonymous Coward, 15 Sep 2015 @ 3:18pm

Re:
No, for post-1972 music there is mandatory fee-free licensing (for the performance - composition is different). Because the law change didn't take pre-1972 music into account, there is no such thing for it. The RIAA members can charge what they want for it and they are not exactly noted for their moderation.

BTW, it's usually better to ensure you're not saying something stupid before you sneer at others. (Hmm, I really must try that some time...)
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Anonymous Coward, 15 Sep 2015 @ 4:03pm

Who needs book burning fundamentalists when you have the RIAA?
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Anonymous Coward, 15 Sep 2015 @ 4:04pm

Re: Re:
So...

Pre-1972 music will have to be paid for. Instead of being ripped off for free by tech companies.

That's what I said.

You're an idiot.
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cpt kangarooski, 15 Sep 2015 @ 4:37pm

Re: Re: Re: Re: 28 Years
Do you actually have any real evidence that copyright promotes the creation of the protected items?

Well, it needs to be creation and publication. Creation alone wouldn't be sufficient. But in any case, no. We really do need some solid research on this subject. However, it seems likely that for some works, among many types of works, copyright is a necessary incentive for creation and publication.

Still, if it turns out that it isn't, I'd be happy to see copyright abolished. The important thing is that we do what's best for the public, given the facts.

Re: Shakespeare, note that he never published his works during his lifetime. His friends did that afterward, and as a result may have missed some, leading to the age-old suspicion that there are 'lost' Shakespeare plays. Further, because it was not in his interests to meet the demand that existed for copies of his plays, pirate publishers printed unauthorized copies instead, which were often rife with errors that ill-served readers at the time. Some degree of copyright might've been useful for him. Nothing like we have now, of course, but a modest amount.
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Anonymous Coward, 15 Sep 2015 @ 4:58pm

Like the currency we use the "product" only has value as long as the populace thinks it does. God help them if the populace ever comes out of it's coma. Then the guys will all have to go back to chasing ambulances.
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Anonymous Coward, 15 Sep 2015 @ 6:04pm

Re: Re: Re:
Because John Lennon still needs to be paid, right?
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Anonymous Coward, 15 Sep 2015 @ 6:28pm

Re: Re: Re: Re: Re: 28 Years
Shakespeare's work was published during his time. They wore published in the form of plays the same way Britney Spears and Eminem are published in the for of music.
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nasch (profile), 15 Sep 2015 @ 6:42pm

Re: Re: Re: Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
No offense, but all rules/guidelines in language are 'made up.'

Most of them describe how the language is normally used. That one was imported from a different language for reasons that had nothing to do with English.
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nasch (profile), 15 Sep 2015 @ 6:48pm

Re: Re: 28 Years -- Orphaned Works
Anything out of print (pressing, cutting, writing in blood, whatever) should be surrendered to public domain.

It's simpler to just massively shorten copyright terms. Then you don't have to find out if something is in print* in order to use it, just check the copyright date (most effective when combined with opt-in copyright so that if there is no copyright date available/registered, it's public domain).

* only to find out later that the multinational conglomerate full of rabid lawyers that owns the copyright puts out five copies a year to one store in East Nowhere, Oklahoma to retain the copyright
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nasch (profile), 15 Sep 2015 @ 6:56pm

Re: Re: Re:
Pre-1972 music will have to be paid for. Instead of being ripped off for free by tech companies.

In case anyone else is fooled by this shitroll... This is about radio stations (think FM, not HTTP), not "tech companies", and nothing is being ripped off.

"And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there's no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for -- rather than worth being paid for."
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Karl (profile), 15 Sep 2015 @ 7:16pm

Re:
Pre-1972 music will disappear because it will have to be paid for like post-1972 music?

Except that, for terrestrial radio, post-1972 music does not have to be paid for.

At least, not to the sound recording copyright holders. And since pre-1972 sound recording copyright holders, unlike post-1972 copyright holders, have a claim against radio stations (and bars, and restaurants, and live venues...) that has no statutory limits or rates, those radio stations (&etc.) will simply stop playing music rather than be sued for whatever amount the sound recording copyright holders want.

They're paying nothing now, and it doesn't take a genius to see that they'll stop playing the music before they risk being sued for trillions of dollars.
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Karl (profile), 15 Sep 2015 @ 7:22pm

Re: Re: Re:
Instead of being ripped off for free by tech companies

Uh, the people who have been "ripping off" these songs "for free" have been every business who plays these songs, and they have been doing so for as long as copyright has existed.

While it's amusing to see you trying to steer this to an anti-tech viewpoint, it's an outright lie.
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Karl (profile), 15 Sep 2015 @ 7:24pm

Re: Re: Re: Re:
Incidentally, the only people who have been paying sound recording royalties have been "tech companies" like Pandora or Spotify.

If anything, charging terrestrial radio for sound recording royalties will benefit "tech companies" - because it levels the playing field, which has been unfairly biased against Internet radio.
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Anonymous Coward, 15 Sep 2015 @ 7:40pm

Re: Re:
Bars, restaurants and live venues pay a flat annual fee for music rights. It covers the composition only, and not the 'mechanical' royalty that is held in a sound recording. So they've been paying pre 72 songwriters all along.
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Anonymous Coward, 15 Sep 2015 @ 9:06pm

I don't get it .. If I were any of these Radio Stations Pandora and/or other streaming or broadcasting companies, I'd create a a coalition and stop playing music from any Artist under the RIAA's thumb ..blacklist any and all Members, Artists.. there's plenty of Indie Artists out there that would appreciate their music being pushed to the main stream.
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cpt kangarooski, 15 Sep 2015 @ 9:14pm

Re: Re: Re: Re: Re: Re: 28 Years
"Publication," in a copyright context, means that physical copies were made and were distributed to the general public. A theatrical performance is not considered publication; a script distributed to a limited number of actors, etc. would not be considered publication either. Something like the First Folio, which was sold to anyone who paid for a copy would be. Of course, that didn't come out until after Shakespeare had died.

Now, I would support an enlarged view of publication, inclusive of public performance or display, for certain purposes, but that's not how it works in this field at this time.

For reference, here's the definition of publication in the Copyright Act:
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
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Anonymous Coward, 15 Sep 2015 @ 9:35pm

It's not the RIAA
There seems to be a lot of unnecessary angst and confusion on this site caused by the blanket use of RIAA to mean the recording industry, or just big labels, or just the evil labels, or -in this case - ABS Entertainment, who are the ones actually filing the suit.
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Anonymous Coward, 15 Sep 2015 @ 10:14pm

Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
and I think there is a difference between not liking the outcome and predicting a different outcome. I think one of the criticisms that Techdirt has is that these laws are often so ambiguous and the rulings are often so vague and general that they create a lot of undesired unpredictability. One example is fair use.

Where the law is more clear Mike has a pretty good track record of predicting the outcome. Where the law is ambiguous, such as here, Mike isn't really making a strong prediction exactly because the law is ambiguous. Instead part of the criticism that Mike is posting forth, part of the point of this entire discussion, is to point out the ambiguous nature of these laws and rulings and the undesired unpredictability this creates.
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Anonymous Coward, 16 Sep 2015 @ 12:06am

Re: Re: Re: Re: Re: 28 Years
Well, it needs to be creation and publication.

Look back through history and you will find that copyright is a phenomenon of the publishing industry, and has it roots in the printing industry. The problem it solved was the problem of using an expensive batch process. A printer had to print as may copies of a title as he though would sell, before selling the first copy. If another printer beat him to market with copies of the title, the printer could be left with every copy he printed, which is ruinous to his business. Under these conditions, controlling who can print a title in any market makes sense, as did its extension to recording where copies are made through batch processes.
Copyright has never been needed to encourage creativity, neither has money been a particularly strong incentive. That is why publisher use contracts that are totally biased in their favour, there are more people seeking their services to reach an audience that they can actually deal with.
These days most of the creativity is based on self publishing using the Internet, with creators making money from voluntary contributions from their fan base.
Remove copyright, and a few mega-corps might go under, if they cannot adapt and sell services to creators, while culture could bloom because people would have no fear of remixing, and making derivative works.
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PaulT (profile), 16 Sep 2015 @ 12:53am

Re: Re: Re: Re: 28 Years
"Do you actually have any real evidence that copyright promotes the creation of the protected items?"

The original concept of copyright came about because people were creating works and had them copied by others immediately, often without attribution, and even to the point where the copies were better known and distributed than the original. This, of course, dissuaded some from creating other works, or at least from disseminating them in public.

That's why I don't personally advocate a complete abolishing of copyright (at least not without some other mechanism immediately in place) - corporations would happily take independent art in the same way and use their bigger reach to outgross the original artist.

"The fact is, none of Shakespeare's works had copyright protection."

...and debate rages to this day as to whether Shakespeare was actually the author or if another person wrote them uncredited. True or not, a copyright notice would likely have settled that debate centuries ago!

"About the only example I can think of is GPL software, which was created to get around copyright - ironic, that."

Not entirely true. All FOSS licences depend to some degree on copyright, they just replace the default copyright licence with something more open. Without the basic application of copyright, they would be defacto public domain and the licences useless.
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PaulT (profile), 16 Sep 2015 @ 12:55am

Re:
No, there's a difference.

The Onion is a satire site. Techdirt is the site you deliberately misconstrue and lie about whenever you can't argue with any of their points based on what they actually say.

Now, try addressing the actual argument, paying attention to what's actually been written. Go on, even you can understand the basics.
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PaulT (profile), 16 Sep 2015 @ 12:57am

Re: Re: Re:
"That's what I said."

..and it's as much a half-assed lie and strawman attack as everything else you said.

We know what you're saying - we also recognise it as a lie.
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andy, 16 Sep 2015 @ 2:47am

clarification
Maybe that is what the lawmakers should be doing, make it clear that any radio station does not have to pay any fees for broadcasting any content. And ensure that the wording covers internet radio so that the big mpaa thieves and charlatans lose out on income from online streaming which they refuse to support in any way other than doing so to bankrupt any start-up that wants to provide a service they the copyright holders and manipulators refuse to admit people want.I am sure the lawmakers would find that 99% of people support radios as a way to hear music for the first time and then go on to either buy it or torrent it.
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nasch (profile), 16 Sep 2015 @ 6:59am

Re: It's not the RIAA
There seems to be a lot of unnecessary angst and confusion on this site caused by the blanket use of RIAA to mean the recording industry, or just big labels, or just the evil labels, or -in this case - ABS Entertainment, who are the ones actually filing the suit.

"RIAA" is often shorthand for "RIAA member labels".
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Anonymous Coward, 16 Sep 2015 @ 7:17am

Re: Re:
One theory. Another is they piss off more fans who will then go out of their way to make sure not to send any money their way any more.

Oh, The Pirates!
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Anonymous Coward, 16 Sep 2015 @ 7:24am

Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
Have to click to see comments the fanboys censored?

You really don't get it, clicking the community created warning before reading crap posts is a desirable feature. (For normal people)
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Anonymous Coward, 16 Sep 2015 @ 8:10am

Re: Re: Re: Re: Re: 28 Years
The original concept of copyright came about because people were creating works and had them copied by others immediately, often without attribution, and even to the point where the copies were better known and distributed than the original.

Actually the printing industry was in existence for 270 years, between Gutenberg's invention of movable type in 1439 to the Statute of Anne in 1709, without authors having any copyrights.
The fist controls over what were printed were imprimatur which was an official authorization from authority to a printer, permitting the printing of works. That is the granting of a right to produce copies that was not an authors right, but rather a right of church and state to act as censors.
This also had a side benefit of regulation which printer had control of which titles when it came to producing copies. When the printers of England lost this control over production of copies, the tried several times to get copyright as a printer right, and failed, and eventually came up with the idea of an authors right that could be transferred to them as a means of getting the law that they wanted passed. So despite all the political spin and justification, copyright has little to do with benefiting creators, but rather as a means whereby publishers can control markets.
Prior to digital technology, production of cheap copies of a work required that thousands, or tens of thousands of copies were produced via batch process, before the first copy was sold. With such production the risk to a producer is that somebody else will beat them to market with copies of the same work, satisfying demand for the work, and leaving them with lots of unsold copies, and the risk of bankruptcy if it happens to them too often. That is the problem that copyright solved, and not the incentivizing of the creation of new works.
The creation of new works has never been a problem, but rather the creator faced huge obstacles in getting a publisher to take on their work and put it before an audience. Look round the Internet, and you will see that there are many creators of work out their that are finding enough of an audience to keep them creating. Some even manage to make a living off of their creativity, but that is secondary to telling their stories to an appreciative audience.
As for attribution, Homer is known for the stories that he collected and recorded, as are the Brothers Grimm. They could not attribute the original creators because their names were lost in the mists of time, and they may or may not have liked what the story tellers who relayed their stories had done to their works.
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Anonymous Coward, 16 Sep 2015 @ 10:23am

Re: Re: But state laws are not the whole of the law: the over-arching common law rights are clearly expressed in decisions against Sirius.
It's funny how he calls his response 'brilliant' as if he's a self declared genius.
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Karl (profile), 16 Sep 2015 @ 10:56am

Re: Re: Re:
So they've been paying pre 72 songwriters all along.

True, but this article (and my comment) is about the sound recording copyright holders. (By the way, "mechanicals" usually refer to the royalties paid to songwriters whenever a song is reproduced "mechanically," say a CD or download.)

These are the people who have been suing under various state laws (both "common law" and statutory).

They have to do this under state laws, because under federal law, they do not have a copyright in public performances (other than for Internet radio).
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Anonymous Coward, 16 Sep 2015 @ 11:34am

Re: Re: Re: Re:
You very specifically mentioned bars, restaurants, and live venues.

(by the way 'mechanicals' ONLY refer to the copyright that is held in the sound recording, it is paid to the OWNER OF THE MASTER TAPE . They are never paid to the songwriter unless the songwriter is also the owner of the master tapes.)

These aren't the people who have been suing at all, those people were Flo and Eddie, these people are ABS Entertainment.
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Anonymous Coward, 16 Sep 2015 @ 11:40am

Re: Re: It's not the RIAA
I Know that.

But ABS isn't a record label, or a member of the RIAA.
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Karl (profile), 16 Sep 2015 @ 3:55pm

Re: Re: Re: Re: Re:
You very specifically mentioned bars, restaurants, and live venues.

All of which can be sued by the sound recording copyright holders, just like terrestrial radio stations are here. (Like terrestrial radio, they don't pay anyone but songwriter PRO's like ASCAP or BMI for the music they play.)

These aren't the people who have been suing at all, those people were Flo and Eddie, these people are ABS Entertainment.

Flo and Eddie are not (just) songwriters, and they are not suing as songwriters. They are (also) the copyright holders of the recordings (the "masters").

The basis of their suits, like the basis of ABS Entertainment's suits, is that they (as sound recording copyright holders) have public performance rights under state statutes or common laws. (Laws which are preempted by Federal copyright statutes for post-1972 sound recordings.)

(by the way 'mechanicals' ONLY refer to the copyright that is held in the sound recording, it is paid to the OWNER OF THE MASTER TAPE . They are never paid to the songwriter unless the songwriter is also the owner of the master tapes.)

That's not how the term is usually used. See e.g. this FAQ by HFA:

A mechanical license grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CDs, records, tapes, ringtones, permanent digital downloads, interactive streams and other digital configurations[...]

A mechanical license DOES NOT grant the right to:

- Reproduce sound recordings, also known as “master use rights”.

Master use rights are required for previously recorded material that you don’t own or control. HFA doesn’t issue master use licenses. Master use rights can only be obtained from the owner of the master recording, usually a record company.
- https://www.harryfox.com/license_music/what_is_mechanical_license.html
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