BMI and other Considerations

Internet streaming/microbroadcasting is likely to get more interesting in the future if these people get their way...
http://cryptogon.com/?p=1860

kc8gpd,

You suggest that there might be a legal tie in between the five points you listed and an exemption from licensing fees. Can you be more specific?

I would not want someone to get into trouble for following this advice and, though I agree the typical part 15er should be left alone, this may not be the case.

Neil

well you know as well as i do what the legal status and intent of part 15 is. this has not changed since the 50's. theoreticly if they can go after you for a rangemaster then they can go after you for using an FM modulator to listen to your ipod in your car. there are already laws on the books covering the using of music in a bussiness environment. we should not help them strip our fair use rights any furthur. if you are running multiple tx's or running from commercial property or from an in home business that is one thing and there are laws covering this. what they are trying to do is bypass congress and make new law on there own by trying to charge the average hobbyist who's playing radio in his own home just because by chance a neigboor might pick up the signal.

i listen to my radi oin the shower and sing in the shower. a neigboor might hear me, should i pay royalties.

These are not real radio stations in the eyes of the law and need to be treated as such by BMI. if we keep calling them up and telling them you want to pay just because your able to afford it and want to play big shot radio, your digging the graves of people who can not afford to pay $200.00/yr. and eventually $600.00 a year when the other 2 figure they can get in on the act.

it's ridiculus and ind it utterly stupid that people who do this as a hobby and get no money from it would blindly pay them.

if we don't put up a fight now we will be screwed later and there will be nothing that can be done about it.

Thank You,

Rev. Robert P. Chrysafis
Universal Life Ministries
http://www.ulc.org

Moderator Hunterdonfree
http://groups.yahoo.com/group/hunterdonfree

Rev,

I think you and I are on the same page about most of this but remember that the FCC and the Part 15 rules do not involve copyrights. No one who housecasts should be worried about this but it seems that there are a lot who want to community cast. My understanding is that bars, restaurants, wedding DJs, and any other business which exposes their patrons to copyrighted material is liable for a royalty and I wonder if someone who provides this ability to service listeners through "community casting" would fall under the same legal requirements. This is where it gets sticky and laws are generally written so that they can be interpreted to include any use of music or copyrighted material even to the extent of personal listening on headphones (I will fight that one!).

My comments in the previous post had to do with your check list. You may well be correct that the "no" answer to all five points would give an exemption, but I doubt that that is the case.

Neil

Quote:

On January 11th, 2008 krimles says:
Internet streaming/microbroadcasting is likely to get more interesting in the future if these people get their way...
http://cryptogon.com/?p=1860
end quote

Nope 🙂 Never happen. the p2p genie is out of the bottle. there is no way any technological measure will stuff it back in.

Some words file sharers will begin to add to their vocabulary and get familiar with.

PGP

Encryption

Darknet

VPN

VLAN

WLAN & LAN Party

Ad-Hoc Network

Infrastructure Network

Dial Up BBS

Wireless Local Area Network BBS

Hard Drive, Flash Drive and DVD-R/CD-R Swapping

Well Neil,

Right where you say "bars, restaurants, wedding DJs, and any other business which exposes their patrons to copyrighted material", you are indicating business usage.

Part15 isn't quite like a bar, restaurant, wedding DJ or etc. All of those *businesses* have a definite clientele and get a clear financial benefit from playing music for them. That's why they pay royalties. Part15, as you are well aware, includes calculators, computers, tv sets, switching power supplies, all kinds of stuff.. So first off, saying that there is a copyright claim (via whatever agency one might use as an example) that is appropriate against *all* part15 device would be more than ridiculous.

Now if someone is running a *business* which utilizes playing copyrighted music (or other copyrighted audio program material), then logically they *might* be liable to pay royalties even though they do it via part15 devices. But it seems to me that the critical point would be that they'd be a business with a definite demonstratable listener base. I don't know, it'd take a court and/or congress to decide that for sure.

But to give an example of what I'm talking about.. Say you have a small wet bar in your rec room at home. You buy an old jukebox or make a replica from a kit or old schems. As I've ever understood it, you wouldn't be liable to pay royalties for putting records you've bought in it and playing them. Not even if you play it loud and your neighbors can kinda hear it. Not even if you take it into the back yard when you're having a cookout and you have a dozen guests.

On the other hand, take that same jukebox and set it in actual business bar or restaurant or coffee-shop, you definitely would need to pay royalties.

See the difference there?

It certainly is possible that some community stations could be liable to pay royalties whether they are done via radio, wire, laser beams or whatever.. The logic has always been that if you have a business, then you receive a definite benefit to your business from playing music and if it's copyrighted, royalties are owed.

Internet stream stations are not a viable comparison or model for part 15 stations either when it comes to royalties.. The reason internet streams were decided to be liable for royalties is that it's very easy with an internet stream for the listener to get a CD quality copy of the song (with the right file format and bit rate on the stream). So technically it's not just a royalty, it is a high potential for bootlegging. Recording music off a regular radio station isn't generally considered bootlegging because it's not a "quality copy". Nobody in their right mind would pay for it. But you remember the big stink that came up over DAT recorders? LOL So even if an internet stream station doesn't have advertisers, charge their listeners to listen or etc, the record companies feel they stand to lose money because copies of the music can be being made. Not all that different from years ago when RIAA agents used to check county fairs for people with booths selling bootleg cassettes and 8-tracks.

Whether it was appropriate or not with the internet stream stations is a matter for debate, but for the sake of this discussion it's academic.. The point I'm making is it's a different line of logic that also really shouldn't be applied to part15.

A logical model for ASCAP/BMI/etc to follow would be to stick to the "business" definition and work on getting that more precise so they wouldn't have to come up with some new rule if people use a wire network, light beam, or somebody figures out how to modulate gamma rays or something..

To be honest, they're an outdated concept anyway, from the time when it was nearly impossible for artists to self-produce and market their own works.. Back then, if you didn't get in with some record company then you pretty much didn't get heard. The RIAA (for example) is not some independent organization founded to protect artists. LOL It still consists of only about 200 "labels" owned by a couple major recording corporations. Don't fall for the hype, do some research.

But in any case.. They certainly don't represent everybody, and there are quite a few independent artists out there that are interested in getting their music heard by anybody (and any radio station at all looks good in their promo packs when they're trying to get gigs). There's quite a lot of music in public domain or available via creative commons (depending on the use you want to make of the music). You can also of course record your own songs or get permission from freinds to record their jam sessions. All that is not much help for those who want to run a "Top Hits" type format perhaps, but certainly of interest to those of us doing alternative programming.

Daniel

Daniel,

You make a very good case regarding the "business" distinction for use of copyrighted material, but you allow that a test case may have to be decided in a court/congress. Is this because the law does not exempt "non profit" use?

My intent in my original post was to question the five points by kc8gpd and to point out that a "no" answer to each may not exempt someone from the fees.

Personally, I see no reason to require fees from a part 15 operation but that exemption apparently is not enumerated in the law, and I just wanted to make that point.

In my second post here, I used examples for which I know fees are collected, even for performance for small audiences, and as you point out they are business or commercial ventures where presumably the playing of music benefits the business. But this, and your logical post, still does not establish that nonprofit use is exempt. It makes sense to me that it should be but our discussion doesn't establish it as a fact.

Knowing what I know about laws, unless something is specifically excluded then it is included (No right turn on red, except...). I am not inclined to research the law regarding copyright but perhaps someone who is interested can and cite a useful exclusion which would apply to part 15 broadcasting.

Neil

Wow, as a new member here I'm amazed at the huge amount of disinformation about music licensing posted here. I have posted a lengthy response in two more recent threads.

if your intent is to play music for others to hear you need a license. Period. Part 15 has nothing to do with it. The FCC has nothing to do with it. Profit has nothing to do with it. Broadcasting songs via radio waves intending for others to hear it is NOT "fair use". Using a little modulator IS fair use.

Whether you are a business, or making a profit, etc is not a factor. It is a factor in determining the amount of the licensing fee you pay, but it has NOTHING to do with whether or not you are legal or required to pay.

Take the earlier posted jukebox example. Stick it in your house, play it all you want. No license necessary. Stick a speaker from the jukebox out in your backyard, you're most likely OK. Run an extension speaker over to your friends house however, and now you've gone public. Stick it in a coffee shop or restaurant and a license is required. Even if it's set on freeplay, a license is required. Take it and put it in a youth group facility in a church, set on freeplay, and a license is required. Put it on a sidewalk in a small town, set on freeplay and a license is required. The determining factor is if the music is being "performed" for people other than your own private use (which seems to include immediate family who live in your home obviously). Profit, business, charity etc has nothing to do with it except in determining the amount you pay. License fees are based on size of potential broadcast audience and station billing (for radio) how many seats in an auditorium (BTW, if you're using a 5000 seat hall, and 34 people show up, you still pay based on 5000 seats). There are many other categories using similar formulas. If the intent is for others to hear it, you pay. Making a profit or being a business has NOTHING to do with it. The same concept applies for ALL copyrighted materials. Gather up a bunch of previously published articles, put them in your own magazine, sell no ads, distribute it for FREE, and you STILL need to get the rights from the copyright holders or you are in violation of copyright law. Period. "Fair Use" generally allows a small portion of a song, article, book, etc to be used as when you're doing a review. e.g. it would be legal to say "This song by the XYZ band is not very good because".... and then play a short part of the song. It would NOT be fair use to play the entire song then critique it. This is how places like Amazon, CD Baby and all the others are able to have short samples of songs on the sites for you to listen to before deciding to buy a song.

If you have a Part 15 broadcasting device and you pretend it's a radio station, act like it's a radio station, tell people you are broadcasting, and in fact make every attempt to have coverage beyond your own home/property, you need to license your music. So, if you set up your part 15 station, never use it like a radio station (don't make announcements, read news, sell ads, do the weather, or other things that make it "radio) never tell people to tune in, etc then you will probably fall under "fair use" which is what it's considered when it's for your own personal private enjoyment. As soon as you tell someone to tune it you are now providing a public performance and owe licensing.

Again, let me reiterate i do not AGREE with these licensing requirements, but this IS how they ARE. 30 some years in the music, radio, engineering, and publishing industries have taught me this. See previous posts in newer threads.

If your intent is for others to hear it, it is NOT "fair use". I'm guessing that if you're on this forum it is your intent to have others hear you.

There is a ton of music available out there with a "Creative Commons License" on it that you CAN use. Why bust your butt to play the same darn songs "real" radio is playing? And don't forget about the thousands of songs in the public domain, as well.

The only question I have not found the answer to (and I will only accept answers from the licensing groups or my attorney as valid, all of whom I have asked and am waiting for the definitive answer) is this: songs in the public domain are free game for virtually any use. This basically means songs 1922 and earlier. Generally it's been accepted that you must use performances recorded before 1922, not just songs written before then. However, BMI, ASCAP, SESAC gather monies for writers and publishers NOT performers (although change is coming there, but only for radio stations that make serious money). If a modern band records a PD song, they do not have to pay rights to release it (that's mechanical royalties, BTW) So it's MY thinking that there would be no licensing fees to pay for a modern song by a current band that's a PD song, since the rights organizations are only collecting fees for writers/publishers. They would have no one to pay the money to. So it's MY contention that a public domain song performed by "modern" performers (since 1922) should also be available for use under the Public Domain rules. But again, I do NOT have a definitive answer for this. Certainly the band would have performance rights, but at this point no one is paying performance rights (that's changing) but will only be for large broadcasters (I believe you have to bill 1.5 mil/year at the station before you'll have to pay performance rights to performers and bands in ADDITION to the BMI, ASCAP, SESAC.)

Tim

Copyright law is very complex, and varies from country to country. The previous summary is pretty simplistic and as a result, somewhat inaccurate. Yes, in the U.S. recordings before 1922 are generally considered to be in the public domain. But in addition to that, recordings made between 1923 and 1963 are in the public domain if their copyright has not been renewed - you would need to check the specifics of each recording. All works published 1964-1977 have had their copyright renewed automatically and enjoy a full copyright term of 95 years after first publication. Those published 1978 and later are under copyright for life plus 70.

In Canada, songs recorded prior to 1958 are copyrighted for life plus 50 years.

Very true. I was trying to keep it rather basic. There are many many variables. You can be sure that virtually all popular, successful music in that 1923-1963 slot were renewed by their publishers or other copyright owners. I don't think you're gonna be able to grab, say, the Elvis Presley catalog from 1955 thru 1963 and have your way with it! There are a few other variables in the law, rules and so forth. Do you *really* want to do this much research for every song you might want to play?

In modern times it's also very possible that you would have a copyright on the song melody, lyrics, performance, solo, rhythm track, mix, master, effects, etc... each a separate copyright! Although as of yet there are no organizations keeping track of these other mutant copyrights and gathering fees!

To my knowledge the only active, organized rights money licenses available and being paid are for the rights to the songs themselves, paid to the writers/composers, or the publishing company to who they sold those rights. For example, if you play the Beatles singing "Matchbox", Carl Perkins gets the check, since he wrote it. No one is keeping track that you played the Beatles version, and no one is sending any of the Fab Four a check!

But we're going much further here than necessary. If you are broadcasting with the intent to be playing to the public, you need a license if you're not playing music from the Public Domain. That is a plain and simple fact. The discussion of the details of copyright laws is best left to another forum, methinks.

Tim

I agree that if you are playing music or OTR or whatever for others that is not in the public domain, you need copyright permission. In Canada, our copyright body didn't even know what to do with my little radio station (operating under Canadian Part 15 equivalent regulations for FM). They finally classified it under a non-commercial radio station, which pays 1.9% of gross operating costs (in my case, just over $100 per year). In Canada, there is also a copyright fee exemption for streaming, although that is likely to change in the future.

I disagree that most recorded music in the 1923-63 period would have had copyright renewed. That may be the case for the later years, but don't forget that the reason that much OTR doesn't survive today is that the copyright holders saw no value in the master recordings and often destroyed them (a lot that did survive were plucked from the trash). I would imagine that the same holds for at least some of the early jazz and popular recordings as well - if you're going to throw out the masters, you're not going to renew copyright. Anyway, that is, as you say, a bit off topic.

Just doing some further research. EVERYTHING I can find, including the government copyright web site, indicates that SOUND RECORDING from 1923 to 1963 ARE INDEED covered under copyright. That "if they didn't renew they're in the public domain" does NOT include sound recordings. Books yes, sound recordings, no. Easiest reference is on the Cornell University web site:

http://www.copyright.cornell.edu/resources/publicdomain.cfm

Tim

Fortunately, except for some syndicated talk shows, I play music recorded for independent artists that have given permission to use their works. Most of it was recorded in my home studio, some not.

I make it sound and look like a radio station but that's my hobby. Since my operation is non-profit hobby, I actually make a NEGATIVE PROFIT. It costs me money to produce the music and run my station.

If I have to pay royalties based on my NEGATIVE PROFIT, they need to send me a check for their portion of my cost based on their percentages. Of course, that's just my sarcastic opinion.

As sarcastic as you thought. From the perspective of some participants that's not unlike the NAB postition on changes in paying royalties for broadcasting songs.

Most other media channels pay an additional royalty now, it is said, and radio does not - to which some say radio responds "we're too broke right now!"

http://tinyurl.com/mkdxge

http://tinyurl.com/njr8v9