BMG, Aggressive Champion Of Copyright Enforcement, Accused Of Copyright Infringement By Jehovah's Witnesses
from the can-I-get-a-witness? dept
Readers here will not need to be reminded that BMG, a prolific music label, is also a prolific enforcer of copyright. BMG has been party to some of the most notable instances of copyright enforcement, from its lawsuit against Cox, to its use of Rightscorp to troll internet users and lie to them, up to and including taking down news videos of President Obama singing an Al Green song. There are plenty more examples after those, leaving anyone perusing them with the distinct impression that BMG super-duper respects the strictest enforcement of copyright laws, presumably in order to protect creators of content.
But that wouldn't seem to be the case if the accusations from the Jehovah's Witness affiliated Watch Tower Bible and Tract Society are true. See, BMG is the publisher for artist Aled Jones' album Blessings, which is essentially a collection of religious songs from a wide variety of faiths. Jones included a Jehovah's Witness song, kicking off a shit storm.
The problem lies in a song on the album called “Listen, Obey and Be Blessed”, a work owned by the Watch Tower Bible and Tract Society, the supervising body and publisher for the Jehovah’s Witness religious group. The appearance of this song on a commercial album immediately raised alarm bells among the religion’s followers who, through their teachings and knowledge of their faith, knew this track shouldn’t have been used in this manner.
And so a lawsuit was filed. BMG is listed as the defendant alongside various John Does, all of whom Watch Tower accuses of violating its copyrights on the song. The group has a copyright registration on the song via a song book it constructed. Watch Tower also is the only authorized entity for licensing the song, which it has only licensed to other parts of the Jehovah's Witness organization. Watch Tower also reached out to Aled Jones prior to the album's release informing him that he didn't have permission to use the song. At that point, BMG responded, indicating it had a license from GEMA, the German rights society. And that, friends, is where things get really weird.
Despite the claims from both music outfits, Watch Tower insists it never approved licenses. This appears to be supported in a response from GEMA, which told the religious group that BMG UK had asked for a license but the request was denied because GEMA had no rights to license the work.
The buck was then passed to BMG in the US, who were apparently in the process of obtaining a compulsory mechanical license to use the song. However, Watch Tower says the necessary procedures weren’t followed so that licensing opportunity failed. As a result, BMG is guilty of copyright infringement and causing reputational damage to the entire religion.
I mean, if BMG published the album including the song before it had gone through the process to obtain the mechanical license then... yeah. I suppose there's a chance that at trial BMG could come up with some kind of evidence that it had procured a proper license for the song, but it sure seems like if such evidence existed it would have been presented prior to the lawsuit being filed at all.
Which would make BMG, fervent protectors of copyright, nothing but a bunch of dirty ol' pirates. Hypocrisy of this kind is by no means rare, but it still always amazes me how much you can rely on the most ardent enforcers of copyright eventually being found out to have violated copyright themselves.
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Filed Under: aled jones, copyright, jehovah's witnesses, listen, obey and be blessed, piracy
Companies: bmg, watch tower bible and tract society, watchtower
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Religion and copyright working together? Heaven help us all.
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You need a reminder?
And of course, by no measure should the statute 13 & 14 Car.II, c.33 be considered the earliest of that genre. Utmost exertions for the better suppression of heretical, schismatical, blasphemous works have an impressive history leading towards those rolling phrases of 1662.
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That is an entirely different tradition of copyright, but yeah.
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No. It's not an entirely different tradition. The tangled history does lead to the statute 8 Anne c.19 (1710).
We haven't argued this one out at Techdirt in quite a while, have we? Not sure I'm totally up for it today, but if a suitable adversary should happen to appear…
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"Religion and copyright working together? Heaven help us all."
As I keep saying, "Copyright" is just the spiritual successor of the medieval church's old heresy law - exclusive license granted to a caste of stakeholders to write down, interpret, or read in public, a certain type of text...
And that was even before Mary Queen of Scots formulated the political-religious censorship statute Queen Anne would later rename "copyright" in the care of the guild of stationers.
Copyright is, essentially, just the enforcement mechanism of religion with the actual godhead removed.
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I’ll thank you to not call copyright an “atheist law”, thanks. 😛
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I think perhaps you know that I disagree on that front as well. The fact that we may, with unmistakable clarity of evidence and absolute surety of pedigree, trace elements within the modern, current 1976 Copyright Act directly back into the 1637 Decree of Starre-Chamber Concerning Printing, does not mean that the 1976 Act is nothing more than the successor to the 1637 decree.
— Nor may we support, by some loose analogy, any implication that the 1637 decree is nothing more than the preceding Star Chamber decrees of 1586 and 1566.
That notion is just as facile and wrong as the contrary position taken by those who glibly assert some immaculate conception to the statute of the 8th year of Queen Anne, chapter 19 — and thence proceed to mark that landmark as the head and fountain of all modern copyright.
Over the long span of years, there are three major allied powers: we may call them Church, State, and Press. Their interests align, but with sure differences. Especially in the critical years between the final lapse of the 1662 Licensing Act, expiring without renewal in 1695, and the passage of the new statute in 1710, we must emphasize that the interests of the Worshipful Company of Stationers are primarily economic.
Without state censorship, the booksellers worried about going broke.
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"The fact that we may, with unmistakable clarity of evidence and absolute surety of pedigree, trace elements within the modern, current 1976 Copyright Act directly back into the 1637 Decree of Starre-Chamber Concerning Printing, does not mean that the 1976 Act is nothing more than the successor to the 1637 decree."
Hence my use of the word "spiritual". In that copyright is just another iteration of Authority being able to suppress speech because it's convenient, politically advantageous, or very lucrative.
The catholic church stated that copying and interpreting the bible was heresy, unless a certified stakeholder - ordained priest - was doing it.
The middleman industry serviced by copyright insists that no information is to be copied or interpreted (derived) unless stakeholders - ordained priests, as it were - certifies it first.
In both cases the organization vested in maintaining the monopoly on copying and interpretation use hyperbolic threats of the sky falling to justify utterly disproportionate penalties and demand government authority abolishes or circumvents legal principles and human rights in order to search out heretics and impose penalties.
Copyright is censorship law after it's been retooled to serve private rather than governmental interests. That is the correlation between Queen Anne's original statute and the 1976 Act - legislation adapted for the time period in question, intended to create a monopoly on middleman distribution of information.
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On this, while, among many other matters, I am indeed vaguely aware of the Council of Toulouse in the 13th century, for instance — on this, I'm just going to somewhat cryptically make note of the fact that I've consulted the reference given by:
Gutenberg's life: 3. The years of the Bible, British Library
That reference, on p.196, gives both text and translation of the passage of the 1455 letter from then-future-Pius II to then-Cardinal Juan de Carvajal.
(Of course, that 1455 letter is years before Martin Luther.)
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Incidentally, Samuelson & Wheatland, in n.24 on p.447 (p.10 in PDF) briefly discuss what they consider a non-correlation between the '76 Act and its predecessors.
(Citations omitted.)
Placing the various provisions in historical context, though, I'm simply unsure right now whether I'm more inclined to agree with the other “courts, commentators, and litigators” (n.19; p.444 (p.10 in PDF)) who see the Stationers Company regulations as “direct predecessors to the current statutory damage provision” in the '76 Act.
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Sorry. Should be (n.19; p.444 (p.7 in PDF)).
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Justice Thomas's opinion for the court in Feltner v Columbia Pictures (1998) observes:
(Citations omitted.)
In this case, he goes on to cite Millar v Taylor (K.B. 1769) as pertinent authority.
It's perhaps noteworthy that, in citing Millar, he does not see fit to mention the 1774 decision of the Lords in Donaldson v Becket (U.K.). Nor does Justice Thomas mention his own court's 1834 decision in Wheaton v Peters. Perchance that particular trilogy is so-well known in copyright circles that one may cite Millar as good authority of law — and not even relegate the two later cases to a footnote.
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Oh, just btw, please don't confuse Mary Tudor (1516-58; Mary I of England, “Bloody Mary”) with her younger cousin, Mary Stuart (1542-87; Mary I of Scotland, “Queen of Scots”).
The 1557 corporate charter to “The Masters and Keepers or Wardens and Community of the Mistery or Art of Stationary of the City of London” was granted by letters patent from Philip & Mary.
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I don't get it.
Isn't the idea behind compulsory mechanical licenses that the © owner of the song composition gets paid but they can't veto whenever somebody covers their song? If that's the case, how is that the Jehovah's Witnesses have a case here?
And if that's the case, wouldn't that throw the idea of making cover songs into legal jeopardy?
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Re: I don't get it.
I could get a license is no defence for driving without a license.
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Re: I don't get it.
The buck was then passed to BMG in the US, who were apparently in the process of obtaining a compulsory mechanical license to use the song. However, Watch Tower says the necessary procedures weren’t followed so that licensing opportunity failed.
Based upon that quote it sounds like BMG only bothered to start the process to get a compulsory license after the fact, and even then they botched the process such that it wasn't valid.
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Re: Re: I don't get it.
https://www.songtrust.com/music-publishing-glossary/glossary-compulsory-mechanical-license#:~:text=A n%20exception%20to%20copyright%20law,has%20already%20been%20commercially%20released.
A compulsory mechanical license is only available if the original artist has recorded the song and released it commercially. I'm not sure that has been met yet.
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Re: Re: Re: I don't get it.
Thank you for
A. answering my question, and
B. linking to my music publisher.
I'm extremely grateful for both!
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Re: Re: Re: Re: I don't get it.
My answer probably doesn't mean much since the people with the law degrees didn't mention it in the complaint other than to state that they don't record the music for commercial purposes. Instead they seemed to focus on the lack of proper notice that was required.
You're welcome.
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Re: Re: Re: I don't get it.
The statue does not require the release to be "commercial". Just that a performance was released.
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Re: Re: I don't get it.
Here's 37 CFR § 201.18, referenced in ¶50 on p.11 of the complaint (p.12 in PDF).
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Re: I don't get it.
Carefully compare the allegations in ¶¶48 – 51 on pp.10 – 11 of the complaint (pp.11 – 12 in PDF), with 17 USC § 115.
Subsection (b)(4), referenced in ¶51, is headed, “Failure to obtain license.”
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Re: I don't get it.
"If that's the case, how is that the Jehovah's Witnesses have a case here? "
There are a lot of bodies of law around copyright, most of them favoring the plaintiff, designed as such by the copyright industry itself. Always nice to see one of those shameless crooks, in this case BMG, hoist with its own petard.
"And if that's the case, wouldn't that throw the idea of making cover songs into legal jeopardy?"
Bear in mind that copyright law, as written, has in the past had legal experts trying to sue GM for providing write capability to their CD drives, suing every workplace with a radio running in the background, and tried to foist public performance fees on to smartphone users over ringtones.
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Here's the rub, IMO:
I'm under the impression that compulsory means that a legitimate licensor can not withhold permission - am I completely off-base here? And separately from that, I read the second sentence to mean "we think they didn't do it correctly, so we get to say the application is denied". Should I be looking for some other way they might've meant it? For all the article goes off on BMG (and deservedly so), I'm pretty confident that they know how to obtain compulsory licenses, that "not following the procedures" isn't easily found in their playbook.
Not trying to defend the 800 pound gorilla here, I'm more interested in how Watch Tower thinks they have a chance greater than that of a snowball in Hell.
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Required order of events, get license and then perform in public. BMG order of events, perform in public and then get the license. BMG should still be on the hook for publishing the song without getting the license first.
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"BMG order of events, perform in public and then get the license."
...once someone asks for it, you mean. With the copyright industry it's always "one law for me, another for thee".
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Just because BMG knows how to obtain a license doesn't mean they do it every time. In this case, they tried to get one through GEMA, that failed. They didn't get the Compulsory Mechanical License (the requirements are laid out by statute), so they released without a license and didn't cure within the statutory 30 day period. So, that's copyright infringement.
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Strange that
Funny how often the same people and groups that consider copyright infringement a terrible crime and go on and on about how easy it is not to violate it always seem to treat the law as optional when it comes to their use of other's works.
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Re: Strange that
"...always seem to treat the law as optional when it comes to their use of other's works."
I find that it becomes less confusing once I assume that the copyright industry is primarily a middleman all about fraud, grifting, and gouging the consumer and their clients alike for as much as they can possibly get away with. It checks out and explains so very much.
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A song I would love to hear
I've been searching YouTube looking for "Kicking off a Shitstorm" by the Jehovah's Witness. Can't find it, anyone have a link?
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Re: A song I would love to hear
No, but would probably buy this. Keep us posted.
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This film has not yet rated, BMG edition
I don't know what to say about this, besides saying it is opposite day for them.
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Re: This film has not yet rated, BMG edition
Just another case of a copyright maximalist rules for thee but not for me.
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Accuracy is important...
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Citation needed
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"They are NOT the good guys here."
They are arguably less bad than the other guys. Essentially it's a case of one set of hypocritical religious fanatics trying to beat up another set of hypocritical religious fanatics in court.
The only real difference I'm seeing is that BMG is more aware that they're frauds.
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Now now, let’s be fair and accurate here.
The Jehovah’s Witnesses are a religion. The BMG copyright team is a cult.
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"The Jehovah’s Witnesses are a religion. The BMG copyright team is a cult."
Well, true enough. The witnesses don't mass-mail everyone in the phone registry demanding money in exchange for a letter of absolution over imaginary crimes or threaten to have you burned at the stake for reading the bible out loud.
Official churches ceased that practice centuries ago.
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Johann Gensfleisch zur Laden zum Gutenberg (ca.1400 – 1468), a goldsmith and inventor — was not burned at the stake.
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please post a link to a reliable news source here, along with the reason in law why they would have to do this in jurisdictions where mandatory reporting of allegations of child abuse is not mandatory - or do you just make stuff up, and think they should release private information to bodies that have no right to it?
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Note: the above is what an actual ad-hominem attack looks like - as the AC argues against Jehovah's Witnesses by ignoring the merit of their copyright and attacking their character with an accusation 100% unrelated to the issue at hand.
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So BMG is fighting the Watchtower Society- there's only one person I know of who could beat the Jehovah's Witnesses in court. BMG needs a hero and he's a wizard when it comes to this stuff.
https://m.youtube.com/watch?v=Tn12G9JwN74
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The biggest problem is that it is only one work for which BMG violated, which means statutory damages for copyright violation capped at $150,000.
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Why would it not be the (up to)$250,000 per copy distributed? Does this mean that if i am a pirate and send an email demanding a license i am no longer a pirate a but a confused legal entity?
I am not a lawyer and honestly would like edification if you would pass some along.
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I guess your interlocutor isn't going to reply any time soon. “Why?” is kind of an open-ended question.
First note that the present case is in the Southern District of New York. Thus, I'm going to point you to footnote 10 of Wiley v Kirtsaeng (2nd Cir. 2011; reversed on other grounds in Kirtsaeng v Wiley (2013)). That footnote first partially quotes the text of 17 USC § 504(c) —which you should read— and then goes on to say:
(Pincite omitted.)
If you follow the case citations back to Twin Peaks Productions v Publications International (2nd Cir. 1993), you'll find the observation:
(Citation omitted.)
If you're looking for a deeper discussion of reasons behind the shift from the 1909 Act to the 1976 Act, then perhaps you could focus your question a little better? Just “why?” is awfully open-ended.
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In their 2009 William & Mary Law Review article, “Statutory Damages in Copyright Law: A Remedy in Need of Reform”, on pp.506-7 (pp.69-70 in PDF), Pamela Samuelson and Tara Wheatland argue that courts ought—
(Emphasis added; footnote(s) omitted.)
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BMG will pay whatever it takes to keep this from going to trial. Because, at trial, win or lose, the case, and BMG's arguments will end up getting used against it in future cases BMG brings against others.
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Reputational damage?
Bullshit. I fail to see how paying or not paying royalties affects reputation of the licensor? This baseless assertion seems to be tacked on just to get more money, should they win.
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Re: Reputational damage?
I think the argument goes to the commercialization of the work they do and the perception that they are out licensing their stuff for money. The rub is that a compulsory license is ... compulsory and can't be withheld by the copyright holder. However, the license procedures still need to be followed.
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Re: Re: Reputational damage?
Yes, BMG does need to follow the rules, but... I'm still waiting to see the actual timetable of the procedures/rules not being followed. It seems to me that if I apply for a compulsory license, and you (as the copyright holder) don't comply with the law as required (meaning, in a timely fashion), I'd be in a position to say "You didn't specifically deny it, so I'm good to go", then let the court(s) figure it out.
In the meantime, a pretty fair chunk of listeners have been exposed to a variety of music based in religion - I'd be sorely tempted to call that "free advertising". Countering that with claims of "exposing our innermost secrets" falls into the Dick Move category, IMO.
Oh, wait, I forgot.... any publicity is good publicity, is that what's going on here?
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Re: Re: Re: Reputational damage?
There's a few things to note (short-form Jehovah's Witnesses as JW's, for reference):
A) Re the license thing, it appears that BMG failed to obtain the compulsory license prior to releasing the performance. With my admittedly limited understanding of the law, that's not allowed, so there is potentially legal merit to the JW's case, any reference to reputational damage aside.
B) The reputational damage comes in in terms of the tenets/philosophies espoused by the JW's. My (again, exceedingly limited) understanding is that the JW's hold to a philosophy of not commercializing things like worship songs; so by taking the song and doing a commercial release of it, and thereby implying that it was in some way approved of by the JW's, BMG and the performing artist do reputational harm to the JW's as it could appear that the JW's did not follow their own precepts in this matter.
If my understanding of things is incorrect, I invite and welcome correction.
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"I am shocked, shocked to find that infringement is going on in here."
"Your royalties, sir."
"Oh, thank you very much."
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