Universal sues MySpace for copyright violations

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Wrong thing- Those are statutory royalties

You are thinking about the wrong thing.

The Section 115 (Mechanical copy) compulsory license allows any one to make and distribute phonorecords (Defined as CDs, LPs, Cassettes, or Digital Downloads) .

The actual language is such;

1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.

Compulsory licenses for public performances for juke boxes are another section (116) http://www.copyright.gov/title17/92chap1.html#116


The radio station's license, including web/cable, is a different section also, Section 114 http://www.copyright.gov/title17/92chap1.html#114

Then again don't forget public performence exemptions in 110 (means they pay 0 royalties and the copyright holder can do nada to prevent it) http://www.copyright.gov/title17/92chap1.html#110 that exempt Schools, Charities, Bars/Restaurants, Churches, workplaces,retailers, private homes, transmisions for the blind, and others from paying any royalty for public performances under certain conditions (You need to read it to believe it).

Finally, in the US you already pay royalties on Digital media for recording and for recorders- these are found in section 1004 http://www.copyright.gov/title17/92chap10.html#1004 and are statutory royalties in case consumers would harm the record companies sales due to home digital/analog tape recorders and not compulsory licenses. Section 1008 explicitly makes it against the law to ban recorders and to sue consumers for non-commercial uses of said recorders,

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

So first off you have confused the section 115 royalties with section 114 royalties. And really you have them really confused with the section 1004 statutory royalties.

Second, the royalties for compulsory/statutory licenses are set by a government panel. The record labels do not get to set the royalty and everyone pays the same royalty.

Third, with radio and TV you explicitly are allowed to record it for personal use. With TV it is the Betamax case where the judge ruled that recording it was fair use while with audio section 1008 covers it (including digital recordings). Now the record labels are petition ing congress right now, and a bill is before this lame duck session of congress, to limit your recorder so that you must record in non-searchable 30 minute blocks and then only if it's not flagged, but that has not passed yet, and may not ever pass. Oh yeah the labels are trying to make it against the law right now to transfer music to iPods/Mp3 players also.

However under the current law you most certainly may record and may transfer your music - The RIO case defined transferring your music as fair use.

However none of this gets to the rteal issue here and that is the Safe Harbor provisions of the DMCA, section 512 http://www.copyright.gov/title17/92chap5.html#512 , and the fact that the current copyright system is opt-out without any registration required hence the need for section 512.

Under the current copyright system anytime you create a copyrightable it automatically has copyright protection. It doesn't matter who creates it as soon as you put the copyrightable expression into tangible form it is copyrighted. This is due to the Berne treaty's prohibition on requiring registration. Due to this fact there is no longer any means to check works against a list to see who it belongs to and whom the copyright belongs. In the US there is still a registration system however you are not required to register, until you want to sue. Not to mention with music this becomes even more complicated due to section 114 (It covers much more than radio stations broadcasts);

The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

This emphasized portion means that the same song may have multiple copyright holders because the copyright only extends to the fixation and not to the song itself and others can create similar sounding songs. This is in fact the case with bands that allow live recordings of their concerts, The Grateful Dead and Dave Mathews Band are two such examples, as the labels own the fixation done in the studios where as the recorders that set-up in a band-approved/band set-up section at the concert own that fixation (Along with the permission and encouragement to distribute these fixations through p2p services). The fact that the bands themselves may allow these recording sections and is telling people to trade their music online, makes it near impossible for a web host to differentiate between what is uploaded and posted with permission or not.

For Web hosts, since it impossible to tell what is copyrighted by whom, due to no more required registration, it is also impossible to tell if what is being uploaded is done with the permission of the copyright holder.

This is why section 512 was born. Section 512 was put into the DMCA by the telecom(AT&T-the Bells)/webhost/ISPs (AOL/MSN/The Bells) lobbyist , who own most of the internet. In effect the webhosts/telcoms knew that the situation was what I described above making it impossible to tell what is posted with permision , let alone who owns the copyright altogether, and didn't feel that they should be liable, less they would have to shut down the internet. The entertainment industry wanted them to be liable, even though it was not practical, or perhaps even possible, to police it. The 512 safe harbor provision takes the ISPs out of the loop but gives the copyright holders an expedited means to find out who posted what, through subpoenas, and allows them a expedited means, the take down notice, to have infringing materials removed.

The safe harbor provision makes the copyright holders responsible for identifying the infringement and makes the uploader liable for the infringement.

What is happening here is the entertainment industry is not satisfied with this and wants the ISPs held liable.

This will do 2 things;

1. Individuals/bands will no longer be able to post original content to the internet because the ISPs will be two afraid to host it for fear of infringement.

2. Bands that offer to share their live recordings will also find no outlet, due to fear of infringement.

In short the internet as it is will be destroyed and what will be left is a situation where only large media outlets will be able to offer content. And that is exactly what they have wanted from the start.

Posted by: Edward Meyers   Posted on: 11/19/06 You are currently: a Guest | Members login | Terms of Use

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