BMI Says A Single Person Listening To His Own Music Via The Cloud Is A Public Performance

from the looking-to-the-sky-and-seeing-unlicensed-clouds dept

There’s no time like late on a Friday to send out disturbing missives. Companies who need to let staff go often find it easier to let the week "play out" before handing out the pink slips. Congressmen who need to shove through some questionable legislation often wait until the papers have gone to bed, or at least a majority of the voting citizens.

Martin Berenson, Senior Vice President and General Counsel for BMI has decided there’s no time like Friday evening to kick out an editorial about streaming music via the "cloud."

Berenson chooses to couch his arguments in the relative safety of Capitol Records (and others) ongoing legal battle with, a "subscription Internet music ‘locker’ service," before launching a grazing attack on "cloud-computing" in general. While the legality of MP3tunes’ actions is still under question, Berenson expresses his concern that its legal arguments could "create loopholes in the copyright law relating to the public performance right."

There’s a lot to unpack in this editorial, but what it all boils down to is this: BMI wants a chunk of this "cloud" money.

MP3tunes logically points out (in its arguments against Capitol Records) that a user making a copy on a "dedicated, private, remote storage device" and playing it back to himself is a private performance and, therefore, needs no licensing. Google, the EFF and Public Knowledge have all entered amici briefs (or "broad attacks on the performing right," according to Berenson) stating that, "if a user initiates a stream, it should not be considered a public performance" by the service.

This seems to be a logical thought: one person listening to his or her own music is not a public performance. But, won’t someone please think of the licensing? No worries, Berenson has that covered:

As previously noted, BMI argues that the public performing right has long applied to on-demand, interactive streaming. Additionally, it makes no difference if the audience for the transmission is only one person, who may receive the program at a unique time, and that MP3tunes’ attempt to make one to one transmissions into private performances is contrary to established law. We stress that it was only the existence of the unique copy made by each subscriber that was the critical factor that saved Cablevision from being an infringer. MP3tunes cannot evade that essential aspect of the court’s ruling on the grounds it would be more efficient to infringe with one copy in storage for all recipients.

Well, there you have it:

  1. The right to collect licensing fees has "long applied" to streaming services, and since it’s been there before, it logically follows that it should always be that way, no matter the differences of each situation.
  2. It makes no difference if only one person is listening — it’s still a public performance. BMI and their fellow performance rights groups have always been willing to grant individuals the rights of a crowd.
  3. Storage efficiency = infringement.

But Berenson’s just warming up, and this is where it gets really interesting (and by "interesting," I mean "ludicrous"):

The strength of the public performing right would be threatened by a ruling that broadens the Cablevision court’s private-performance ruling to otherwise-unlicensed services. Cloud computing will no doubt grow tremendously in the future and if MP3tunes’ argument is adopted by the court, unlicensed entertainment services in “the cloud” will steal audiences from existing licensed streaming services (as well as from more traditional media entities), and copyright owners will be harmed by such a ruling.

From that point, Berenson takes a quick run at Amazon’s Cloud Drive, mSpot and underdog neo-Luddites, Zediva (in particular, noting that Zediva’s DVD player farm "competes unfairly with licensed services" — which is a totally understandable statement, because the film industry has always been nothing but fair when dealing with competitors and customers).

While Berenson does not specifically attack or threaten Amazon’s new service/player, one can only gather from this editorial that the rent-seekers (BMI, ASCAP, etc.) are beginning to formulate their plan to get a piece of this hot, new action, if not already forming an orderly line outside the virtual door. The sentence, "The issues are not confined to MP3tunes," seems to indicate that he considers these services to be next in line for the MP3tunes treatment.

After all, Berenson equates listening to unlicensed music streams to "theft" and there’s really nothing more sincere than an "editorial" from a self-interest group. In closing, he offers this baffling line:

These efforts to diminish or circumvent the performing right point up the need for heightened vigilance on our part.

Godspeed, BMI. The more you can do to separate people from their music, the richer you should become. And with an entire nation of individual listeners billable as one (1) crowd, the sky’s the limit. (Hence, the "pointing up," I assume.) Just watch out for those pesky "clouds".

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Comments on “BMI Says A Single Person Listening To His Own Music Via The Cloud Is A Public Performance”

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Hephaestus (profile) says:

The following two cases ....

After reading Marvin Berenson’s editorial, I realize there are two points that if won by MP3tunes and Zediva and combined into a service will change everything.

“However, MP3tunes contends that Cablevision shouldn?t rest on the making of a unique copy for each subscriber and that lockering should be permissible where each subscriber sends a copy individually, and represents that it has legal ownership of the copy. It contends that it should not have to engage in wasteful duplication of storage just to provide a service that is otherwise lawful.”

In Zediva’s case the key point is.

“Zediva?s contention is that it is nothing more than a DVD rental service with a remote access feature.”

Now combine them. For each copy you purchased you can stream it to a single person for profit, and you only need to have a single copy stored to stream upto the number of copies you purchased.

Kind of a game changer isn’t it?

DandonTRJ (profile) says:

Re: Re: Re:2 The following two cases ....

Yep. I’m very curious to see how it plays out. Obviously, it’ll all come down to how much the courts feel comfortable expanding Cablevision, which in turns banks on whether they feel Cablevision was rightly decided.

One of my professors was signed on to an amici brief against the Cablevision decision, feeling that it misread the applicable section of the Copyright Act [I believe his reasoning was that the law specifies streaming a work to the public rather than a copy, so the focus on “one customer, one copy” didn’t seem right]. Since the new breed of streaming services are dead-set on testing the limits of the Cablevision argument, I guess we’ll see if the courts want to try and close Pandora’s Box or embrace what they’ve started.

Me, I think we just need to rewrite the damn Copyright Act again, because judicial and legislative band-aids are not helping the 1976 one’s fundamental principles jive well with the realities of modern tech. (But then, of course, any rewrite comes with the inherent risk of letting legacy industries screw things up even more…)

Hephaestus (profile) says:

Re: Re: Re:3 The following two cases ....

“I’m very curious to see how it plays out. Obviously, it’ll all come down to how much the courts feel comfortable expanding Cablevision”

I am actually placing my bets on the tech sector coming out on top. The big four record labels are a 10 billion dollar market cap industry, and thats highly over valued based on the trends and lack of adaptability. The top 5 tech firms have a 1 Trillion dollar combined market cap.

The tech sector is beginning to wake up to the fact that they are being bullied by the entitlement freaks of the content industry. You are seeing more friends of the courts briefs, more lobbying, and more of them telling the content industry to go screw themselves.

Now that the tech giants have begun taking notice expect the momentum to increase and more things to go in favor of the tech companies and against big content.

anymouse (profile) says:

Re: Re: Re:4 The following two cases ....

At least until ‘their’ content (ie. software) needs to be ‘protected’……

It’s only fun being the 800 pound gorilla in the room when there are other things to throw around, once they have tossed all the entertainment industries out the window, they will turn to what’s left…. their customers

You don’t think the entertainment industry started out crapping on their customers, do you? They worked long and hard to eliminate all the competition and gain control of everything first… only after they had no competition that they could directly face (those evil ‘pirates’ are so hard to catch) did they start destroying their customer base…

I guess when you’re an 800 pound gorilla, everything looks like something to be thrown, eaten, or crapped on, it’s anyone’s guess as to which one the industry is doing now

Ima Fish (profile) says:

The RIAA will win this argument. As I’ve explained before, when the copyright industry is faced with competition, it sues. If it loses, it goes to Congress to have new laws passed. If that fails it goes to state legislatures to have new laws passed. If that fails, it has treaties enacted forcing Congress to have new laws passed. Then it will sue and win.

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?!

vastrightwing (profile) says:

Privacy, it's not just for spam anymore

This is where privacy becomes important. It’s those people who contend that we can’t do what we want with our data. You understand, from their point of view data isn’t data. Certain kinds of data is special: when the data can be rendered as sound waves or patterns of light, it all of a sudden belongs to a certain group of people who tell you this data can not be stored on hard drives which are accessible in certain ways.

This is why I don’t use remote backup, I won’t store anything on a “cloud” (aka server I don’t own), I won’t use photo share sites or upload anything I can’t keep off the internet. I don’t want to deal with these people who think my data may fall within their jurisdiction somehow. I don’t want to be a party of some dispute where I’m breaking some license agreement. Forget that. Instead, if I want to share data with my friends, they will simply have to drive to my home and plug their storage device into my private network. Not only that, I can share terabytes of data in mere minutes, rather than hours. Plus, I won’t bust any data caps. Makes sense to me.

DannyB (profile) says:

A tale of two performances

Say I bought my mp3 file from Amazon. It’s paid for. Licensed. I’m not distributing it. It’s for my private use exactly as described in the LICENSE for the music.

Performance #1:
I upload it to, say, Google Music and listen to it on headphones plugged into my mobile phone. This is a public performance according to BMI?

Performance #2:
Now, instead I put that same paid for, licensed mp3 file directly onto my phone device and listen to it through headphones. That is perfectly okay?

(Assumption: I’m assuming that with the mp3 file I paid for from Amazon, licensed for private use to an individual, it is okay for me to actually listen to it on my mobile phone in the case of performance #2. But I could be wrong. Probably I should consult a lawyer.)

So how is listening on headphones on my mobile phone different when the music comes from a private storage (eg Google Music) vs physically storing the music on the device?

Eric says:

Re: A tale of two performances

Taking your argument a little further, what if you take the digital files out of the equation. Say you copy your CD for backup and take that backup to a storage facility. You want to listen to the CD so you go by your storage unit, grab the CD and listen to it in your car.

Does BMI think that is a public performance? I hope not.

Just because you store music as a digital file and put that file on a server, it doesn’t mean that you’ve given it to some other service. If the service is simply renting space, then the contents are yours. Just because you live in an apartment it doesn’t mean you lose your right to privacy.

ChronoFish (profile) says:

Implication RE Internet Radio

So here is a question to the TD peeps.

Does it matter who “owns” the electronic “copy” if it is deemed that personal backups on cloud devices are legal (as I suspect they will be)?

In other words can John share his locker with Ben as long as they are not both listening to the music in two different places at the same time? In the same way that physical media can be borrowed?

If that is legal, then note: Why couldn’t Pandora do the same? Or your local library for that matter? As long as only one device is receiving the stream at a time, then you could make the argument that if the service purchased the music, and as long as only a single person (device) was listening at a time, then there are no additional licensing that needs to be paid. And if you want to stream the same song to more than one device at a time? Easy – buy multiple copies. Still no need to pay recurring licenses from that point on.

Am I missing something?

DannyB (profile) says:

Re: Implication RE Internet Radio

What you describe sounds like Netflix for music.

The funny thing is that as more and more models for paying for and digitally streaming music are tried, the counterarguments from the dinosaurs will twist and tangle into contradictions of their earlier arguments.

Today doing X with music will require licensing some right A. Tomorrow doing the same thing (X) will be reclassified to require licensing right B instead. (Or in addition to.)

Steven (profile) says:

Re: Implication RE Internet Radio

ooh, I could see this working out very interestingly.

Have an option that allows your music to be shared with others and allows you to partake in what others have shared (if you don’t opt in you still can use the service with just what you have). No single ‘copy’ will be allowed to be played by more than one person at a time. You might even be able to set it up such that if I want to listen to the music that is mine, but all the licenses are being used it would cut off somebody without their own copy. That might be enough incentive for people to continue to add music/movies/…

Very interesting.

Deirdre says:

Re: Implication RE Internet Radio

Ah, this reminds me of library ebooks and audiobooks. Only one person can check it out at a time and only for a selected period. Of course the newest grab is the publisher (Harpercollins is the bellwether, but my guess is the other publishers will be treading on it’s heels if the libraries don’t refuse to accept this) who wants to charge the library for another full fee every 26 times an ebook is “checked out.” The files wear out I assumed.

The current model in libraries does include the purchase of multiple licenses for popular ebooks, only one or two for less popular ones.

Steven (profile) says:


Me, my wife, my two kids, and my mother-in-law (all living in the same house) all share the same music collection. I don’t buy 5 copies of each song.

I wonder what BMI thinks of that?

I wonder what they’ll think when I start uploading the music to multiple cloud services if/when we each get a cloud locker. (I’m thinking we might want different cloud lockers so our playlists and such are separate).

Personally I think if they don’t like it they can go screw themselves.

Anonymous Coward says:

Why doesn’t google, amazon, facebook, or apple just start a recording business arm. They could use such a thing to generate new revenue and prop up existing business revenue. Just start going after new talent from the get go and forget about trying to attract existing big name artists. They would all have the means to promote the new artists, probably much better than record companies do now. Base the model totally in the distributed internet age and poof, bye bye old record companies.

Anonymous Coward says:

Re: Re:

Once their competing label got big enough, it would start pulling the same evil shit the current establishment does

Take a look at Google’s opposition to Do Not Track. Why does Google want advertisers to have the right to store mountains of data about you? Because they control a multi-billion-dollar ad network.

ArtieGold says:

BMI, etc.

It really doesn’t matter. Eventually, as they say, they will manage to run out of sand.

What’s funny about it is that they have a real opportunity here: if they were to socialize their profits, i.e. provide artists lower down on the food chain enough to live on (or at least, say, group insurance at subsidized rates) they could probably get real support — and dare I say it, love — from the artistic community, no matter what their vig.
Would never happen, though. Can you say “entitlement”?

Wouter says:

It’s exactly bollocks like this that has prevented me from spending a dime on music for the last 10 years or so. It’s not because I don’t like music, it’s not because I don’t have the money, and it’s despite the fact that I think artists deserve to be rewarded for their work, but I simply can’t justify to myself feeding this rotten industry with their insane business model with my money.

I wish more people would just say no and start some kind of civil disobedience movement to simply download all their music, for each track donating some money in some kind of fund for the artists. I sincerely despise this industry.

Brian Daly says:

You all are idiots

Sorry to be so rude, but I can’t believe you all are going on about the greedy music industry. The music biz is small, the profits are not good, it’s collapsing. So you have these big tech companies wanting to build businesses on the back of the music biz, but they don’t want to pay licensing. But somehow the record companies are greedy. BMI represents a lot of writers and publishers who rely on them to survive. The arguments about whether streamed music recording is a “public performance” is a technical legal semantic argument. Our whole economy depends deeply on intellectual property rights . Music is just data. Most people accept that just because you buy a cd of software that does not entitle you to do whatever you want with the software. There is a license that dictates how it can be used. Why is this so hard for you to grasp? I think it’s because you (meaning the op and commenters) are careless, you really don’t give a shit about people trying to make their living. I can assure you that producing music is difficult and expensive. If we want to have it around to listen to who do you propose should pay the costs? Geez

Anonymous Coward says:

Re: You all are idiots

Did you forget a sarcasm tag?

Why should someone pay *you* to distribute your stuff? Seems it should be the other way around.

Why should someone pay *you* to store/stream something they already bought? You got paid once for one license (which entitles the purchaser to place shift), now bugger off.

The rest of your post is hyperbolic babble that ignores too many other realities to address. I hold out hope that it’s satire, but I have a sinking feeling it isn’t.

Someone says:

This is a red herring

At least it is here in the UK anyway

I have _never_ owned the music I bought

Even in the days of vinyl and before the advent of cassette tapes I only had a license to listen to the recorded music – The copyright remained with the artists, labels, studios, distributors etc.

But that makes no difference to my right to play the music to whomever I wish, never mind to myself

I have _always_ been licensed to play the music to others, never mind myself

Otherwise I could never have held a party in my own home at which my guests listened to prerecorded music by a third party

Copyright law here is such that so long as I do not charge people to listen I may play the music to as many people as I wish in my own home and I am not in breach of any copyright because it is not a _performance_ because I am not playing it to a paying _public_ – It is not a ‘for profit’ event

I may sample it, remix it, do what I like with it in my own home without breaching _any_ copyright, so long as I do not play the resulting material outside my own home

So the BMI can suck on _that_ lemon for as long as they wish and can try taking me to court if they like – If the case even gets that far in the first place my legal representatives will be laughing all the way to the bank

Zangetsu (profile) says:

Goodbye Kinkos

Marvin L. Berenson states that Also, BMI argued that MP3tunes has the necessary volition to be liable for copyright infringement since it set up the service and solicited the customers and provided the necessary infrastructure for the infringements to occur.
So, isn’t this what Kinko’s can do for you? They have set up a service (photocopying), solicited customers (I’ve seen the ads) and provided the infrastructure (heck, they’ll even do it for you).

I could go on, but it seems as if Marvin L. Berenson wants to roll back time and pretend that many advances of the past 50 years had not occurred and that this discussion had never happened before.
In a graduating class, someone always has to be at the bottom and yet, he’s got a job somewhere.

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