SLMC

Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

Lots to think about. First off, the laws regarding whether or not someone is liable with respect to licensing fees are clear. The qualifier is not how much money is made at a performance. Someone can play for no money at all and still be liable. If you are playing a cover song that is made available to the "public" and this is not a "recognized" charitable event, then you are liable for licensing fees. According to Title 17 of the US Code governing copyrights, "To perform or display a work “publicly” means... to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." This clearly applies to what we all do.

As to whether venue owners are liable, that would be under the medium ownership issue. The medium is the "place that the public has to go to in order to hear the music." That isn't a piece of virtual land in SL because the url streaming the music can be put in literally hundreds of parcels at a time. The medium has to be the owner or renter of the stream url. So if the venues provide the stream, then yes they are responsible. I perform at many places where I provide my own stream so then I am responsible.

Right now, it is not feasible for SL musicians to pay the licensing fees as they are set through BMI, ASCAP, etc. If someone did come look at SL and come down on us, I think sl live music would die, with the exception of those doing originals and/or public domain songs. I honestly don't think that is what artists want. I have to believe that they feel the same way I do when someone sings a song of theirs. First time I heard Lyn Carlberg do a cover of my song, Wait for Me, I cried with happiness. If we were making a lot of money on these songs, then I could see someone getting upset. But unless you are doing covers of one artist only, then you aren't making a lot of money from a particular artist's work. Licensing fees in RL are based on income derived by the venues or mediums, not what RL musicians are paid to perform.
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Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

Norris, there are tests that the Courts use to determine internet jurisdiction. They generally apply an "interactive vs. passive use" standard. Personal jurisdiction applies to interactive use. Personal jurisdiction with respect to the internet means the state in which the end user resides. If a website provides content that is interactive, i.e. two-way communication which fosters an ongoing business relationship, the personal jurisdiction applies. This means that the laws of the state where you reside govern your use of and interaction with anything on the net. As it applies to this topic, if I am the owner or renter of the stream and I reside in Ohio, then Ohio law applies.
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Silas Scarborough · Joined: 04 Sep 2007 Posts: 1635 Location: None

I question whether you can expect any logic in enforcement from RIAA, et al. One of the classic cases was when RIAA went after a Brooklyn schoolgirl for a couple of grand. It makes perfect sense when (pick your foreign-nation) is producing bootleg CDs and DVDs by the millions.

I'm not suggesting anyone should change his/her act to drop covers but rather that getting ahead of this would be worthwhile. The question, to me, is what is the best way to do that. I don't believe the defense that it wasn't enough money to matter will keep them away indefinitely.

Kimmee has quite a good write-up of what's legal and what's not but I do question the conclusion that they will leave SL alone.
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Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

You're talking about a different animal Si. RIAA enforces copyright infringement for the use of "sound recordings." Live music does not use "sound recordings" except with respect to professional backing tracks which most give sound recording licenses to perform. RIAA was pushed by the big publishing companies that own these "sound recordings" to enforce their rights.
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Silas Scarborough · Joined: 04 Sep 2007 Posts: 1635 Location: None

Thanks, sis! The recording aspect still applies as that's where the DJs will get popped. You're obviously all over what's driving the live performance piece of it. Both problems need to be solved if music is to continue in its current form in SL into the indefinite future.

The object isn't to present a doom and gloom forecast but rather to suggest this stuff is worth consideration as eventually it will become important and the situation, at least since I came to SL, has been that it rears up every six or eight months to great fanfare and then subsides again. Better, I'm thinking, to address it once and for all and be done with it.
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Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

Sorry bro. Thought we were talking about live music and performance of covers. My bad.
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the Professor · Posted: Mon Jul 28, 2008 7:09 pm Post subject: very complex situation

A lot of this is murky because most applications of law to virtual worlds (1) has not yet been made (2) uses old law (3) is applied unevenly (4) is barely understood (5) the situations in which copyright protected music is played/performed are very diverse in SL.

One has to remember that both copyright laws AND internet broadcasting laws apply. Playing in a club in SL IS NOT EXACTLY LIKE PLAYING IN A CLUB ON THE CORNER in RL. In RL, to be legal, the club pays a fee. There are a number of arrangements they can make relating to their volume/frequency, etc. But players can play away as long as the house covers the costs.

In SL, this responsibility MIGHT be doubled (though we don't know for sure cause the courts haven't been tested on this one). First, there's a public performance. Those rights are covered within the copyright and compensated by the fees. Those are the rights that are analogous to playing covers in an RL club. Then there is the internet broadcast . . . that royalty is more like the one paid by radio stations, at rates set according to the type of outlet they are.

SL venue owners who gather crowds for listening to covers might be vulnerable over both aspects . . . performance and broadcast. I cannot tell you whether one license/royalty will cover both . . . but I'm pretty sure that few (if any) venue owners could afford the freight based on what they bring in for shows.

I repeat my (oft-stated) earlier proposal. I think in the long run, either Linden Lab makes arrangements to pick up a universal license (and no such thing actually exists) or the situation will, someday (I hope not soon) get VERY complicated . . . and will probably knock out ALL covers and perhaps even the use of internet radio in SL. It is NOT 100% clear that streaming internet stations to your land is going to hold up as legal without additional fee. . . anymore than is playing a radio in your shoeshop if that radio is pointed at the public rather than the workers.

In short: Either Linden clarifies, pays, and bails us all out, or over time, we'll be down to musicians playing original material (or public domain material) only.
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Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

I'll try to clarify the copyrights for you Professor. There are three licenses at issue.

1) The license to play sound recordings (this does NOT APPLY TO LIVE MUSICIANS WHO MAKE DERIVATIVE WORKS OF COVERS). This is what I think you may be labeling internet broadcast but I am not sure. The only reference to internet broadcasting in the actual copyright laws of the US deal with retransmission of copyrighted material in the form of sound recordings or television broadcasting and is not applicable to live music in SL. It does, however, apply to radio stations that play music that was actually performed by covered artists.

2) License to perform "lyrics and melody." This is the copyright that applies to live musicians in SL. The only stipulation to that would be someone who uses tracks that were performed by covered artists.

3) The only other copyright available is for recording. Recording a cover of lyrics and melody or any derivative work requires the recorder to pay royalties to the original songwriters.

And I sincerely doubt that we could ever get Linden to obtain a license because they are not liable as they are not the medium that provides the music. The stream urls are the medium.

There is no special copyright over and above either of these three whether or not the songs are performed in a rl club or in the virtual world.
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Silas Scarborough · Joined: 04 Sep 2007 Posts: 1635 Location: None

I agree with Kim as I doubt the Lindens will pick up the freight and really I don't think it's their responsibility. Their job is to provide infrastructure but it seems to me that the accountability goes to what we did with the infrastructure as opposed to something that was designed into it. There's nothing in the way the Lindens designed the audio support in the SL software that is an inherent violation of any copyright laws; that is something we have chosen to do.

Are we arguing over how much to tip for a McDonald's hamburger?? Would the expense of licensing be so trivial that we could just take up a collection and be done with it? (Yes, some people would not pay but add some glitz: your contribution of $xxxL gives you membership in the SL Pro Musicians Guild or some such. Maybe make an SL notices group that only the the SLPMG could update.)

This will get all political and I hate that but this can't work as a committee as there's no organizational device less capable of producing anything. To do it, there would have to be some type of admin outfit that everyone trusted with the money. If that were administered by a committee, it would be gone faster than you could say, "Re-elect George."

Besides, someone has to take the point to get anything happening at all. Who does the research to find out what exactly would be expected from licensing agencies.

One thing that concerns me is if we're pro-active and offer funds to the agencies to get legal, what is the likely reaction. It's been my experience with the Democratic Party that the first thing that happens when I send them money is they send back a letter saying they need more. Perhaps it is better to do nothing and wait for the agencies to strike. I lean toward it being better to take it to them rather than being put on the defensive by the them with a prohibitively-expensive first strike.

What I'd present regarding in-world performance, live or DJ, is that SL is effectively a gigantic bar, much like Underground Atlanta many years ago in which it was a honeycomb of bars underneath downtown Atlanta and you could carry drinks from one to another. It was very, very cool! So, it seems to me SL is essentially the same thing in a virtual world and could probably be presented that way. Given definition of the legal entity, the only question after that is how much.

I'm sounding way too corporate. Time to get all loud and kozmic.
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Kim Seifert · Joined: 09 Sep 2007 Posts: 212 Location: Ohio

I have great resources so I'll check into it Si. A preemptive strike is always the best way to handle a potential problem.
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