Why Radio Stations Probably Couldn't Just Play David Bowie Music As A Tribute: Copyright Law Is Messed Up

from the just-the-latest-example dept

Tue, Jan 12th 2016 8:23am — Mike Masnick

People are quite reasonably upset by the news of David Bowie's passing, with lots of reminiscing and certainly tons of listening to his music. I certainly re-listened to a bunch of his music on Sunday night after hearing about Bowie's death. And, some, such as comedian Eddie Izzard, suggested that "every radio station" should just play David Bowie music for the day as a tribute:

Please could every radio station around the globe just play David Bowie music today - I think the world owes him that.
— Eddie Izzard (@eddieizzard) January 11, 2016

It's certainly a nice idea... but as lawyer Cathy Gellis points out, at least in the US, it's likely against copyright law for many radio stations. The specific issue has to do with those radio stations that also stream online. As you may or may not know, there are a set of rules that you need to follow to be considered a "non-interactive" webcaster, and among those are the "performance complement" rules:

No more than 4 tracks by the same featured artist (or from a compilation album) may be transmitted to the same listener within a 3 hour period (and no more than 3 of those tracks may be transmitted consecutively).
No more than 3 tracks from the same album may be transmitted to the same listener within a 3 hour period (and no more than 2 of those tracks may be transmitted consecutively).

That's not just something that SoundExchange came up with on its own. It's written directly into US Copyright law (at the bottom of the page). At some point, years ago, Congress (or, more likely, a recording industry lobbyist), wrote up rules that said online radio couldn't play too many songs in a row by a single artists, because of the ridiculous fear that if they could, no one would buy music any more.

Now, the rules do say that the performance complement "may only be violated if the service has received specific waivers from the owner of the sound recording copyright" -- so it's possible that the copyright holder on Bowie's music could waive those rules, but it would have to be to a bunch of different radio stations, and it's unlikely they're going to do that.

So, once again, it seems that copyright law is getting in the way of what sounds like a perfectly lovely idea: creating a day-long tribute to David Bowie. No wonder he was so keen on having copyright go away entirely.

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Filed Under: copyright, david bowie, eddie izzard, non-interactive stream, online radio, performance complement, radio, streaming radio
Companies: soundexchange

64 Comments

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Anonymous Coward, 12 Jan 2016 @ 8:30am

The Current in Minnesota certainly played Bowie tracks basically all day, definitely more than 3 an hour, and they stream online as well.

RIP Bowie. :(
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Anonymous Coward, 12 Jan 2016 @ 8:34am

The saddest thing is that Bowie only has an incentive to write new music for 70 more years.
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That Anonymous Coward (profile), 12 Jan 2016 @ 8:38am

See what happens when we don't follow through?
They told us home taping was killing the music industry if ONLY we had taped more we could have had a moment to celebrate an artist who cared more about art than trying to control it.
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W, 12 Jan 2016 @ 8:38am

Re:
Depressing dark humor, but it got a small smirk out of me regardless.
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Anonymous Coward, 12 Jan 2016 @ 8:43am

That's insane troll logic. Here is a sane definition of a "non-interactive webcaster":

1. Everyone connected to the service is receiving the same content at the same time, just like everyone tuned into a single terrestrial radio or television station, and does not accept requests via the web site.

2. There is no 2. Rule 1 is the whole definition.
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Anonymous Coward, 12 Jan 2016 @ 8:43am

Re:
Insightful and Funny votes for you, my friend.
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jupiterkansas (profile), 12 Jan 2016 @ 8:45am

Re:
Just because it's illegal doesn't mean they can't do it. Good luck to any record label that tries to sue a radio station for playing a Bowie tribute.
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Anonymous Coward, 12 Jan 2016 @ 8:48am

Re:
Don't worry, I'm sure he'll keep writing new music from his grave, just as soon as he gets over the shock of his own death.
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Anonymous Coward, 12 Jan 2016 @ 8:49am

If Bowie was so keen on having copyright disappear, why didn't he release his work into the public domain or shorten their copyright?
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Anonymous Coward, 12 Jan 2016 @ 8:58am

You can stop pimping Bowie's death as a way of pushing your silly agenda anytime, slimeball.
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Anonymous Coward, 12 Jan 2016 @ 9:00am

Re: Re:
I've made bad jokes here about pedophiles, mass shootings, terrorist attacks, torture, and more. The comment above was the only one I had second thoughts about before hitting 'Submit'.
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TKnarr (profile), 12 Jan 2016 @ 9:01am

Re:
Because putting it into the public domain would've allowed any record label to pick them up and lock them away behind a compilation copyright on an album, and no copyright holder can change the length of the copyright term written into the law. Oddly, the only way to do this is the way open-source software does it: retain the copyright but with very generous license terms.
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Anonymous Coward, 12 Jan 2016 @ 9:03am

Re:
A law like that would never pass, its too simple.
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Anonymous Coward, 12 Jan 2016 @ 9:04am

Or, you know, you could just go to YouTube and create a playlist of all of Bowie's songs that are on there. No copyright infringement necessary.

That clause in copyright law really seems like a violation of the 1st amendment. Choosing a playlist that consists of a single artist is an act of speech.
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Anonymous Anonymous Coward, 12 Jan 2016 @ 9:09am

Re: Re:
More like it would never pass because it doesn't grease enough wheels.
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Anonymous album side lover, 12 Jan 2016 @ 9:10am

album sides.
I always thought it would be kool to have a station that just plays album sides. I guess that will never happen. Copyright was a good idea until the greedy morons corrupted it.
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Anonymous Coward, 12 Jan 2016 @ 9:14am

Re:
Humm, seems like Bowie might be honored that his death is bringing about a discussion on the future of music/copyright.

It was Bowie himself who once said:
"I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing"
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Anonymous Coward, 12 Jan 2016 @ 9:23am

This is total bullshit because I seem to recall that here in Flint, Michigan, our local radio station, WWCK 105.5 FM, would always play a newly released album at 11pm and play the album straight through. This was back in the 80's, I remember some of those albums: Def Leppard Pyromania, Bon Jovi's Slippery When Wet, Boston Third Stage, Ozzy Osbourne Ultimate Sin and many others.
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Anonymous Coward, 12 Jan 2016 @ 9:26am

Re: Re: Re:
And at least I didn't go with my first idea. I won't even mention that it involved the phrase 'Why didn't he just choose the cake?'...
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Anonymous Coward, 12 Jan 2016 @ 9:27am

Re:
Our local classic rock radio station was playing Bowie for most of the day as well.

We have at least one local station that plays entire albums on Saturday night. I wonder how they do that in light of the "3 track" limit?
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Anonymous Coward, 12 Jan 2016 @ 9:42am

AC, my point exactly. The terrestrial radio stations still continue to play new albums on Saturdays, it was the the one thing that radio stations are known for. It's ridiculous to think that radio station adhere to tha5t idiotic rule regarding copyright law and radio stations don't adhere to it because its a ridiculous concept.
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Anonymous Coward, 12 Jan 2016 @ 9:44am

Re:
This is Major Tom to Ground Control
You nearly made the grade
Now all you need to do
Is write songs to me from you
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Anonymous Coward, 12 Jan 2016 @ 9:51am

The torrent has 42 CDs in total, 580 files, weighs in at 28.53 GB, and is number 10 for lossless (FLAC) music torrents. Those other than family profiting from his passing, how sad. Up yours Congress. We are Ziggy's band.
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Anonymous Coward, 12 Jan 2016 @ 9:56am

Re: Re:
...We have at least one local station that plays entire albums on Saturday night. I wonder how they do that in light of the "3 track" limit?...

Are they sending their one signal out BOTH over-air and internet stream? Because that's the key thing about the regulation being talked about. So long as the signal is over-air OR internet stream BUT NOT BOTH the station is copyright compliant.
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JoeCool (profile), 12 Jan 2016 @ 9:57am

Re: Re:
The limit doesn't apply to over-the-air stations, only to online streamers.
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Anonymous Coward, 12 Jan 2016 @ 10:40am

Re:
YouTube has been bombarded with lawsuits for infringing copyright.
So far they have paid most of the rightholders off if they are sued, but if they have an agreement on something is impossible to say for certain before the video gets removed for infringement...
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That Anonymous Coward (profile), 12 Jan 2016 @ 10:46am

Re:
you first
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Michael, 12 Jan 2016 @ 10:48am

Re: Re:
Because they don't have a history of doing incredibly stupid things?
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Michael, 12 Jan 2016 @ 10:49am

Re:
The second rule looks like it was written by a legislator.
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jupiterkansas (profile), 12 Jan 2016 @ 12:31pm

Re:
1. He wasn't keen on having copyright disappear. He just saw that the internet would clash with copyright law, which it did.

2. Releasing your work as "public domain" is not the same as advocating an end of copyright (or reform of copyright law) because even though he was a leader, it wouldn't change the system. He might make a statement that way but nothing would be gained from it.

3. He could claim his work was "public domain" but legally there's no way to do that. All work is covered by copyright whether you want it to be or not. How long would that public domain status hold up 70 years after his death?
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jupiterkansas (profile), 12 Jan 2016 @ 12:32pm

Re:
The rules only apply to streaming on the internet.
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Glenn, 12 Jan 2016 @ 1:46pm

It was the behavior of the recording industry that convinced me stop buying music back in the mid '90s. I bought a lot of CDs in the late '80s and early '90s when they were becoming "the" physical medium for albums, so I just listen to my own library now (ripped, of course). And I've never downloaded anything, free or fee. They owe everyone everything, and they think we all owe them.
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Peter Termonia, 12 Jan 2016 @ 2:31pm

Rest In Peace Sir David Bowie
we are an online station in Kentucky Louisa and we broadcast a David Bowie day tomorrow ,an entire day David Bowie ,but we are on Radionomy, all our rights are under the Belgium Flag
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Anonymous Coward, 12 Jan 2016 @ 4:50pm

Re:
Seventy years from now, you and your team will be gnashing your teeth.
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Trace the Ace, 12 Jan 2016 @ 6:01pm

Re:
AC, What website did you use to listen to that station back in the 80s, iHeart or Tunein?
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Anonymous Coward, 12 Jan 2016 @ 6:04pm

Re: Re:
As is typical on a techdouche blog when it talks about music, uh, no.

Bowie was one of the most business-savvy artists in the rock biz. He obtained ownership of his album master tapes in the late 80s and became incredibly wealthy licensing and releasing the songs in ways that he deemed suitable.

You know, people paying for his art.

If you want to continue to pretend that copyright does not provide protection and profit for artists, be my guest. But know that you will continue to be mercilessly mocked for such demonstrably incorrect and inane drivel.
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Whatever (profile), 12 Jan 2016 @ 6:13pm

I hope the lawyer ain't getting paid for the opinion, because it blows.

The limitations pointed to apply only on non-exempted transmissions, namely services that are NOT rebroadcasts / streaming of over the air services.

Furthermore, the stations only have to declare it as "David Bowie day" and it would all be a sort of foreground format no different from a documentary or program about a given artist that may have more than 3 songs in it during an hour.

I also think that for any of this to matter, it would require a complaint from the copyright holder or the authorities in the matter. It's extremely unlikely that either would object to tributes paid in this manner.

Me thinks this lawyer needs to lighten up every so slightly.
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Superbman, 12 Jan 2016 @ 7:22pm

How dare these radio stations even think of providing free advertising for the labels' CDs.
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Anonymous Coward, 12 Jan 2016 @ 11:07pm

Re:
No need for silly things like facts when there's an piracy agenda to be fed!
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Anonymous Coward, 12 Jan 2016 @ 11:28pm

Re: Re: Re:
How much of the money gained from HADOPI has been sent to artists?
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PaulT (profile), 13 Jan 2016 @ 12:24am

Re: Re: Re:
"You know, people paying for his art."

Except for the ones he gave away, of course, or the many ways in which the legacy industry blocked him from offering music to paying customers via the most desired methods - which sometimes left customers unable to pay either due to cost or artificial restrictions.

But, hey, why address reality when you can invent an easy strawman fantasy?

"If you want to continue to pretend that copyright does not provide protection and profit for artists, be my guest"

Quote the part where he did that. In the actual words written, not the raving hallucination you're attacking.
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PaulT (profile), 13 Jan 2016 @ 12:25am

Re:
Are you attacking everyone in the media who's been doing this? Or, do you only have a hard on for attacking this site?
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PaulT (profile), 13 Jan 2016 @ 12:26am

Re:
"No copyright infringement necessary."

The major labels will disagree with you there.
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PaulT (profile), 13 Jan 2016 @ 12:31am

Re:
"The limitations pointed to apply only on non-exempted transmissions, namely services that are NOT rebroadcasts / streaming of over the air services."

That doesn't change the point raised at all.

"Furthermore, the stations only have to declare it as "David Bowie day" and it would all be a sort of foreground format no different from a documentary or program about a given artist that may have more than 3 songs in it during an hour"

Is this option available to everyone, or just a subsection of legacy media? Is there precedent for this happening for something like this, or would people just have to "trust" your law interpretation over another's and hope they don't get sued?

"It's extremely unlikely that either would object to tributes paid in this manner."

Most people thought it would be unlikely that YouTube would get sued over videos that they had been authorised to host, or for having an audible song for a few seconds in a video of a kid dancing, but reality is sadly otherwise. These people don't have the best track record of sticking to sensible, logical targets for their lawsuits, and most defendents don't have YouTube's defence resources..

As ever, you attack others, but you offer only your own warped opinion, no citations and no substance. You just expect everyone to believe a known liar, because he says so. Pathetic.
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PaulT (profile), 13 Jan 2016 @ 12:31am

Re: Re:
Why are you people so obsessed with lying?
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Anonymous Coward, 13 Jan 2016 @ 12:52am

Re: Re: Re:
they learned from you.
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PaulT (profile), 13 Jan 2016 @ 1:09am

Re: Re: Re: Re:
...and this would be where you cite anything I've ever lied about. You have my entire posting history available to you in my profile, so it shouldn't be hard.

Unless you're lying yourself, of course?
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Ninja (profile), 13 Jan 2016 @ 3:16am

Re:
Furthermore, the stations only have to declare it as "David Bowie day" and it would all be a sort of foreground format no different from a documentary or program about a given artist that may have more than 3 songs in it during an hour.

Hmm, your distorted world seems quite simple young padwan. Do not underestimate the power of the Copyright.

I also think that for any of this to matter, it would require a complaint from the copyright holder or the authorities in the matter. It's extremely unlikely that either would object to tributes paid in this manner.

Hmmm, like the folks who were developing a movie that would make no money and got shot down by the copyright holder? Like many tributes out there that fans make and get utterly destroyed by the copyright holder (Nintendo came to mind now)? Like Ane Frank's estate fighting tooth and nail to prevent it from being public domain despite its importance? How are you so sure? You truly underestimate the dark side young padwan.

Me thinks this lawyer needs to lighten up every so slightly.

You'd need an entire supernova to lighten up...
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Ninja (profile), 13 Jan 2016 @ 3:17am

Re: Re:
I'd say most printers couldn't see it coming when the MAFIAA sued them as well...
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Anonymous Coward, 13 Jan 2016 @ 5:40am

Re: Re: Re: Re: Re:
He's really serious about that 50 IP addresses thing, isn't he?
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jupiterkansas (profile), 13 Jan 2016 @ 8:27am

Re: Re: Re:
You're the one that said Bowie was keen to make copyright disappear, not me. I'm not keen for copyright to disappear, and neither was Bowie. He simply saw that copyright wouldn't jive well with the internet, and rather than try to fight technological progress, he predicted copyright would lose and decided to think of ways artists could sustain themselves without copyright.

But go ahead and make up your own reality with your petty insults.
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Whatever (profile), 13 Jan 2016 @ 6:18pm

Re: Re:
Ninja, think past the end of your nose, and then you might get the answer.

Let's a say a band is having a record release party, boardcast on radio. During a 1 or 2 hour show, every track from the new album is played, discussed, and so on. It's pretty common.

Consider featured artist programs, interview, and the like, where the music of the artist is featured between interview segments. Again, a very common radio format.

The old time term for this was "foreground programming" or "featured programming" or "showcase" radio programs.

Or consider this sort of "promotional" stupidity: http://www.eonline.com/news/521583/a-california-radio-station-has-been-playing-the-same-nelly-song-f or-almost-24-hours

Yup, same song (not just same artist) for 24 hours, including streaming. Nobody from the "copyright monopoly nazi enforcement department" suddenly showed up and sued them into the ground. Gee, wonder why?

"You'd need an entire supernova to lighten up..."

You need to learn that adhoms add nothing, but they do make you look like a jerk. You can join Paul over there in the corner with the digital dunce cap on.
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Whatever (profile), 13 Jan 2016 @ 6:19pm

Re: Re: Re: Re: Re:
I don't know about the other poster, but I don't think you like, I just think like many, you point to opinion and confuse it with fact. It's a side effect of reading techdirt, I guess!
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bavid dowie, 13 Jan 2016 @ 8:54pm

i love bowie
i love bowie but there's other artists in the world that need airplay. let's play one song on the hour, every hour.
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PaulT (profile), 13 Jan 2016 @ 11:32pm

Re: Re: Re: Re: Re: Re:
"I don't know about the other poster, but I don't think you like"

In English, please?

Funny how you only made an incomprehensible response to this post and not the other posts where I've detailed exactly why you're wrong. I wonder why that is?

"It's a side effect of reading techdirt, I guess!"

You're here more often than I am.
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Whatever (profile), 14 Jan 2016 @ 7:22pm

Re: Re: Re: Re: Re: Re: Re:
"In English, please?"

Can't edit posts here, so I can't correct it. I say I don't think you lie.

"You're here more often than I am."

Not according to the year end stats. Based on that post, you freaking well live here.

"not the other posts where I've detailed exactly why you're wrong"

Mostly because you proved nothing except that you are a loud mouth with an opinion. I don't waste time getting into a debate with you because you are unable to read or consider anyone else's opinions beyond your own. So pointing out where you are wrong is pissing into the wind. I don't waste my time on your nonsense.
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PaulT (profile), 14 Jan 2016 @ 10:54pm

Re: Re: Re: Re: Re: Re: Re: Re:
"Mostly because you proved nothing except that you are a loud mouth with an opinion"

...and you're not? All you do is come in here spouting your opinion as if it's fact, then whine whenever someone questions or tries to debate you. You have no facts, no evidence, you never back up what you have to say, then you whine whenever you're challenged. You're a pathetic excuse for a human being.

I've pointed out where your position is based at the very least on a misunderstanding of the other opinions, if not outright false information. Yet, this is the only one you've bothered to answer.

For example, on the recent posts about Hollywood record breaking, you've mistakenly taken them as posts about simple how much money Hollywood has made. This is incorrect. Half of the point of those articles is that since 10+ years ago, we are having our rights stripped in the name of stopping piracy, because Hollywood claimed their business would be destroyed if it wasn't stopped. Yet, here we are, piracy is still rampant yet box office records are still being broken.

The point is not whether or not profits could be higher without piracy (the point you keep trying to push), but that the industry is in nowhere as much danger as they always claim. Yet, you insist on pushing the barely-relevant point of whether profits could be higher, despite this neither being relevant to the articles nor knowable by anyone on either side, then repeat it on every article after you've been called out.

But, you'll whine about me calling you out yet not have the courage to refute me. If I'm wrong, tell me. Otherwise, I'll just have to go with the verifiable facts that I'm aware of - and they always point to your opinions being objectively wrong.

"So pointing out where you are wrong is pissing into the wind"

Translation: I know I'm full of shit, and I'm too cowardly to enter into an honest discussion.
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Anonymous Coward, 17 Jan 2016 @ 7:14pm

Re: Re: Re:
What is it with you and trying to claim the monopoly on ad hominems? Actually, what is it with you thinking that it's working? Any fool can look into your post history and see your sad appeal to "ad hominem" is a tired, threadbare excuse against getting called out on your bull.
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M. Alan Thomas II (profile), 18 Jan 2016 @ 7:34pm

Re:
Dying relatively young just after your final work comes out is the sort of thing for which I respect copyright surviving the creator. Let's say you've got a 27-year-old artist who's just put out their latest work and had a kid. Then they die in a car crash. Dead people don't necessarily connect with fans well and certainly can't tour. I feel like they should be able to try to have their kid supported through college on their final work—no guarantee that any art is still making money after that long, but that's not the law's problem—especially given that most creators would have reasonably expected to be around and supporting their kid that long and most kids can reasonably expect their parents to support them until they're adults. And then because we don't want to make copyright some sort of incentive to keep having kids or a moral test, we put a flat minimum copyright duration into the law without asking who the heirs are and how deserving they are.

Similarly, I don't want a flat expiration-on-death even for older works, because publishers might not want to publish new editions / retrospectives of old or sick creators if they're afraid that they won't have the rights long enough to earn out production costs. (Publishers aren't perfectly logical here, but the law should be designed to encourage them to not screw over old and sick creators regardless of what we think of their logic.) Of course, that only requires extended duration for a few years after death, and a flat copyright term wouldn't have death problems at all.

There's also an argument to be made for ensuring that any spree-buying in the wake of a beloved creator's death goes through licensed channels rather than a fly-by-night publisher who swoops in to make cheap memorial editions of suddenly-public-domain works before the creator's body is even cold.
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PaulT (profile), 19 Jan 2016 @ 1:27am

Re: Re:
I'm not sure that anyone here really advocates for instant expiry of copyright upon the death of the author. But, we also cannot sustain the current trend, which edges toward infinity with corporate profits being placed far above any public or artistic consideration. there's a happy medium between the two that's possible and which allows an artist's estate to collect the final rewards of a renewed public interest following his death without effectively locking the work up for eternity.

The comment you're replying to is a sarcastic illustration of why the current situation is bad, not a call for instant copyright expiry. Put it this way - with life+70 years, a child who is born on the same day that Bowie died, and who then dies at the same age that Bowie died (69), would not live to see Bowie's work enter the public domain. If you accept the original purpose behind copyright (to encourage new works), that's counter-productive.
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FRM, 3 Feb 2016 @ 9:25am

Royaly can be an issue in the industry.
David Bowie allowed Chris Hadfield to use Space Oddity in the space to make the video and publish it on youtube. It was a huge news. Probably that was one of those moments when people just discovered what impact royalty have.
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Anonymous Coward, 18 Apr 2016 @ 4:06pm

Kshe St. Louis plays complete albums every Sunday night. Has got years.
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Anonymous Coward, 18 Apr 2016 @ 4:13pm

Sorry meant has for years. Copyright must be a myth. Look it up. Kshe.com called Seventh day. People talking about only three songs per hour or copyright. All BS. Tell your station to grow a pair.
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Skeeter Sanders, 23 Aug 2018 @ 10:15am

DMCA Restrictions on Memorial Tributes Violate First Amendment
The Digital Millennium Copyright Act is far more than "Messed Up," as the headline in this article suggests. It is actually unconstitutional when its restrictions on the number of songs by a single artist that can be played on any one radio program -- either over-the-air or online -- are imposed on programs that are one-off memorial tributes to artists who have recently died.

It was never the intent of the DMCA to prohibit radio stations from devoting an entire program -- or an entire day -- to a memorial tribute to a deceased artist. To apply the restrictions on such specials would clearly impose a "prior restraint" on stations, in clear violation of the First Amendment.

Even the RIAA acknowledges this, which is why no station has ever been fined for violating the DMCA when it broadcasts or streams a memorial special and no such crackdown is ever likely to occur in the future.
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