
BMI: one person listening to his own music via the cloud is public performance - grellas
http://www.techdirt.com/articles/20110506/18425714192/bmi-says-single-person-listening-to-his-own-music-via-cloud-is-public-performance.shtml
======
grellas
A few observations:

1\. There _are_ well-settled copyright principles that hold a viewing event to
be a "public performance" even though a single person only is doing the
viewing at any given time. A leading case involved a video-store owner who
owned one copy of each film he had in stock and who set up private viewing
rooms in his establishment in which he allowed a patron to view a film
privately that the patron had rented from the store. This enabled the store
owner to buy a copyrighted video once and to set up a business in which he
repeatedly displayed that video to multiple members of the public, one at a
time. In that case, the court held that the showing of the one copy of the
film owned by the video store owner repeatedly to different members of the
public constituted a "public performance" (the case, _Columbia Pictures v.
Redd Horne_ , may be found here:
[http://scholar.google.com/scholar_case?case=1713962666875062...](http://scholar.google.com/scholar_case?case=17139626668750628957)).
This case is offline law but the principle it articulates is clear. If
copyright holders are in business to sell or license their copyrighted works,
and if someone buys one copy of such work and sets up a business open to the
public to make money from repeated showings of such work (albeit one at a
time), the copyright owners are having the value of their works taken from
them by the intermediary business owner, who gets to profit from such works
without having obtained any right or license from the copyright owners to
license such works to others. A leading copyright treatise (Nimmer) sums this
up, then, by saying "if the same copy . . . of a given work is repeatedly
played (i.e., 'performed') by different members of the public, albeit at
different times, this constitutes a 'public' performance." (discussed here:
[http://laboratorium.net/archive/2011/03/16/that_zediva_thing...](http://laboratorium.net/archive/2011/03/16/that_zediva_thing_its_so_not_going_to_work)).
In this offline context, then, it is indisputable that you can have a "public"
performance for copyright-law purposes from what is technically a private
viewing.

2\. Logically, the one-copy rule should not apply to the case where I own my
copy and merely choose to display it for my private viewing (or private
listening in the case of music) through various methods of playback, including
by use of a cloud service. And this is what both Google and Amazon are banking
on in the way they have set up their cloud music services. Their theory is
that the service they offer does nothing more than allow you to upload a song
you already own and access it from different browsers and devices. To avoid
the one-copy rule, neither Google nor Amazon "de-duplicate" user files, which
means that users will literally access the exact files that they themselves
uploaded into the service (meaning, therefore, that millions of copies of the
same file may exist in the same cloud).

3\. The big test case that is pending in the courts is _EMI v. MP3Tunes_ , and
this case will test whether the old offline rules should apply literally to
the digital world. That is, MP3Tunes is a music locker that _does_ de-
duplicate its files, i.e., stores one copy only of each song (rather than one
copy for each file any user has uploaded) and uses that copy to enable users
of the service to replay songs they have uploaded into the service (though not
literally from the exact file that the user uploaded). It is this case - where
the intermediary business owner is using "one copy" only to enable multiple
members of the public to listen to the same song, albeit only for their own
private listening - that the EMI lawyer is commenting upon when he says that
one person listening to his own music via the cloud constitutes a "public
performance." Though tone-deaf on how this must sound to the average person,
the lawyer is basically reciting what the offline caselaw held in connection
with the one-copy rule. This may indeed be irrational as applied to the
digital world (since, in fact, the service is requiring each individual who
listens to upload his individually-owned version of that song, which
distinguishes this case from the video store owner who bought only one copy in
total), but this is why he is calling it what he does.

4\. EFF has a good discussion of some of the key issues here:
<https://www.eff.org/deeplinks/archive> (see under the heading "Do music
locker services violate current copyright laws?").

The fact that important web-based services are having to use such inefficient
means as storing millions of versions of the same file just to deal with
current copyright laws shows that is is high-time such laws were revamped for
the digital age. The last major revision was in the 1970s. The laws in this
area made sense in their day (at least for those who don't oppose IP rights of
this type) but are today strained to the breaking point.

~~~
bostonvaulter2
This argument about de-duplication reminds me of the excellent essay: "What
Colour are your bits?"

<http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php>

~~~
plesn
Yes, thanks for reminding this essay. I think though that de-duplication is a
lawyer oriented smoke-screen. It is based on a complete misunderstanding of
Colour because Colour tracking happens at the wrong abstraction level. Colour
does not exist in the computer but it is a property of the whole process.
Therfore tracking content ownership doesn't happen at the bit-level of storing
a copy or a pointer, but it is rather the consistency of the owner/content
association.

------
ryan-allen
A novel way to solve this problem is to stop signing new talent to the big
labels.

Some of the music I listen to is signed to smaller labels who have much more
liberal views when it comes to distribution and piracy. They host their own
online stores that sell DRM-free albums usually at 50% of the cost of what you
pay to big labels on iTunes, in stores, etc.

The vast majority of musicians and producers (i.e. not the Lady Gaga's or The
Beatles or Michael Jackson) make their money by touring and performing.
Selling their music on CD and in digital formats is considered a marketing
method and token income at best.

My hope is that Big Music become more and more irrelevant (and less
influential) as artists realise that they can do better without them.

~~~
pkeane
BMI is not a record company. It is a performance rights organization. Lots of
independent label artists have their work registered through BMI (myself
included & I get checks quarterly from BMI). This seems crazy/greedy to me,
though. How about if I put my work on a website (which I do -- free for
listening or downloading)? I would hope that's not considered public
performance.

~~~
rprasad
It is a public performance, which is within your rights to control as the
copyright owner....unless you assigned copyright to BMI.

------
jrockway
I figured this would happen. I was going to write a service exactly like Cloud
Drive and Google Music, but I knew that as soon as I had more than 10 users I
would be inundated with angry RIAA lawyers. I guess I was right.

(I would still like to simply see BMI's catalog blocked. If the services are
popular but BMI won't allow Amazon and Google to host their music, then that's
BMI's loss rather than Amazon's or Google's.)

Also, the record companies wonder why nobody buys music: this is why.

------
noonespecial
If you find yourself having trouble reconciling this with the real world _(1)_
, remember that lawyer world is a little different. You might be looking at a
version of the "Chewbacca defense" writ large. A solid legal case can be
completely illogical in the real world but entirely internally consistent (and
effective) in the legal one.

Think of it from their perspective. BMI is essentially an organization of
lawyers. This is what they _do_. If it is possible to twiddle the levers on
the legal-political complex and stymie your competitors, why ever wouldn't
you? This isn't some dastardly new plot to kill teh intertubes, its the same
thing they've been doing since 1940, it just looks really bizarre when done in
the 21st century. Kind of like showing up in your 1942 swimming costume for
this year's spring break at Daytona Beach.

 _1)_ But its my music, on my storage, played on my device! How can that be...

------
nkassis
so what he's saying is that even if I paid for the music I store in my amazon
cloud drive, just because amazon probably doesn't store a separate copy of
each song of my collection amazon should be paying him performance royalty?
This dude a moron. Good thing he's going after Amazon and Google, that way his
stupidity will cost him a lot in wasted lawsuits.

------
th0ma5
This kind of stance is further proof of their impending irrelevancy.

You know what would be cool? If publishing organizations strove to outdo the
hardcore curators out there, to invent a more detailed form of musical
notation beyond MIDI, open source the whole shit, and become the de facto
standards barer of musical transcription. I'd like to see detailed engineering
notes as well, and all the samples and full tracks, with all effects broken
out, and timed to the nanosecond, in a zip FLAC file.

If they can achieve technical excellence like that, and give it away for free,
I'd sign whatever paper they put in front in me.

~~~
Kliment
Nine Inch Nails did that with Ghosts, they provided editable multitrack
recordings, and essentially gave it away for free, inviting anyone to edit and
remix.

~~~
th0ma5
I'm sure he got the idea from the same place, Oink and other such OCD pirates.

------
orbitingpluto
Maybe I'll help out BMI. The hard of hearing use hearing aids! They're
illegally rebroadcasting a public performance! SUE! SUE! SUE!

------
sjtgraham
I believe in paying for music and artists being compensated for their art etc,
but the music industry's constant myopic greed is pushing me away from wanting
to pay for music at all.

Way to go music industry.

------
angrycoder
This is like listening to grandpa out on his lawn screaming how he is going to
kick all our asses. The war is over, you guys lost, move on.

~~~
rdtsc
Except grandpa is crazy, has a shotgun, and is friends with the Sheriff (the
RIAA, MPAA, their lobbyists and congresspeople they bought).

------
robryan
The music industry have a piracy problem, yet they discourage services created
to remove the piracy problem. The labels that get stuck in this eternal fight
are going to lose out big time to those that realise that attacking the
problem head on is a waste of time and build up a business around the new
market conditions.

------
mahrain
The main source of frustration with this is the fact that they see music as a
physical product, while using "intellectual property" laws to prevent any
other form.

If it were up to "them" the only way to listen to music is either commercial
radio: which pays for licenses, or purchasing physical media and with it the
"license" to play it in the privacy of your own home. Anything else is
difficult, and DRM and other measures try to institute the same laws governing
physical products on digital media (you can't copy your car ;-) ).

This is the argument they get attacked on time and time again, with people
saying they don't innovate their business model and try to prevent anyone from
innovating as well.

Wait... is it really 2011?

------
ck2
If I have a digital music player and digital speakers (amp inside the speaker)
in my home, playing my owned music, is that a public performance? Of course
not.

Well if the digital music player is now 1000 miles away from my speakers, how
is that any different?

------
bane
aaaand, the music industry takes yet another step down the long stairwell to
obsolescence. Really guys, we want your product, we'll even pay for it, but
you _gotta_ update the delivery mechanism to get with the times.

That's all you have to do.

------
ctdonath
A commenter jokes "It's only a matter of time before we have to pay licenses
to listen to the music we've already bought. What?! You think the music you
stream over speaker wires and earbuds is free?!"

One word: HDMI.

------
jonursenbach
The source of this, <http://www.bmi.com/news/entry/551409>, is the longest
piece of bullshit I have ever read. Oh brother.

------
VladRussian
one couldn't play more by the rules of the industry than Zediva. Zediva only
eliminated some technical inefficiencies. By attacking Zediva the industry
clearly shows itself as just a Luddite fighting to defend the inefficiencies
that are source of the industry's income. In 10-20 years it would be just
another paragraph here <http://en.wikipedia.org/wiki/Luddite>

------
squidsoup
Big record companies seem to be adept at finding novel ways of making
themselves anachronisms.

------
jmilloy
So wait, my friend has a copy of your movie. I offer to pay YOU so I can watch
his copy of the movie. And that's not okay because...?

~~~
rprasad
Because you might pay more to get or rent your own copy of the movie?

That's the primary logic behind BMI's stance.

~~~
tomjen3
Not really, I already brought the movie.

Or rather I didn't because it wasn't yet available outside the US.

------
zerosanity
So if my home stereo is "streaming" music to the speakers in the next room
that's considered a public performance too?

------
adrianwaj
Article wanted: "RIAA, big labels and performing rights organizations:
decimating music since 1999."

~~~
Natsu
They've been at it a lot longer than that. Payola, Hollywood accounting,
abusive recording contracts, ... all of these things predate 1999 by far.

------
cmars
if a seemingly random stream of bits travels across the internet, from a
seemingly random collection of bits on a cluster of virtual machines... does
it make a sound?

------
rglover
Gary, Indiana, Gary, Indiana, Gary, Indiana.

------
drivebyacct2
A private file hosted in rented space that I'm accessing is not public
performance and I don't understand how we can stretch the definition of words
to get to that conclusion.

Dear Music industry, grow up. Or sue, lose in court and miss out on all the
revenue you could be enjoying. It really is your choice.

