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Music Licensing Groups Argue That A Homeowners Association Playing Music At The Pool Is A Public Performance

Copyright

from the no-it-isn't dept

Thu, Apr 30th 2015 09:53am -

Sometimes it feels like these copyright collections groups are in some kind of insane competition in which the winner is whoever can make the dumbest claim about something being a public performance in order to collect royalties for themselves artists no, seriously, the artists barely get anything. From stereos in rental vehicles, to any kind of cloud-music-streaming, to freaking ringtones, it’s all been tried and most of it has failed.

The latest entry to this tournament of greed comes from licensing group Sesac, which has been targeting homeowners associations that have stereos and speakers at communal areas for homeowners, such as swimming pools and barbecues.

A neighborhood in Matthews got a letter from Sesac, which is one of the big three music licensing companies in this country, and the tone of the letter unnerved them. It wasn’t the first letter from them suggesting they may want to get a music license to play music at their pool or at the clubhouse during holiday gatherings, or any gathering for that matter. The letter also pointed out that violating copyright law is expensive and, “under the law, damages up to $150,000 may be awarded for each copyright infringed.”

What they’re saying is, if you are playing music in a public venue, like a pool or a community club house, and you don’t have the license to do it, you have to pay the royalties to the artist who wrote and performed the song originally.

The problem with all of this is that, of course, a communal swimming pool or clubhouse within a neighborhood under a homeowners association isn’t a public venue. Put another way, there’s an obvious difference between a public swimming pool and a communal pool to be used by a specific neighborhood or gated community. It’s not…you know…open to the public. These are private gatherings among neighbors, more akin to a block party than a concert setting or a swimming pool open to the public.

At the link, Sesac claims they were just reaching out to “make an offer”, an offer which just happened to come along with the helpful information that thousands of dollars might be coming in fines should its “offer” not be accepted.

We talked to John Nipp who is a patent and copyright attorney with Additon, Higgins, and Pendleton, P.A. in south Charlotte.

“What those groups are using to their advantage is the complexity of the copyright law. They’re using that to their benefit by putting things in there like you could be liable for $150,000 in damages”.

They’re scammers, in other words, using threats and the complexity of the law to extract money from the innocent. It’s damned time victims of these tactics had some kind of recourse for having to endure these threats.

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Companies: sesac

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Comments on “Music Licensing Groups Argue That A Homeowners Association Playing Music At The Pool Is A Public Performance”

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70 Comments
DannyB (profile) says:

Re: Re: Re:

Please consider, people can shower in places such as a locker room at a public pool or park. The shower has an expectation of privacy even if it is at a public place. While I was thinking more of locker rooms, I can see why a copyright maximalist might bring up a bath house.

Should that be a public performance? Only the copyright maximalists would think there is any marketability to a naked person whistling a tune in the shower. Oh, wait. Nevermind.

Does the expectation of privacy depend on how good the person’s whistling is, or whatever other features might attract an audience?

Ed Allen says:

Re: Re: Re:

But they already argued in Aero that an encrypted stream going point to point across the Internet was a
“public” performance if “enough” other streams went at the same time.

All of them carrying different data because each stream was encrypted with a personal key.

Future trials would be needed to define what “enough” means in the real world.

Instead we got “Looks like a Duck” !

antidirt (profile) says:

It seems to me that it very well could be “public” within the meaning of Sections 101, which provides: “To perform or display a work ‘publicly’ means– (1) 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 . . . .” An event attended by many of one’s neighbors could comprise “a substantial number of persons outside of a normal circle of a family and its social acquaintances.” My street recently had a block party, and I met a substantial number of people I didn’t already know. That was the point of the party. Whether it’s “public” here would appear to turn on how broadly one defines “social acquaintances.”

Ninja (profile) says:

Re: Re:

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

Unless everybody starts bringing in their whole Facebook friends and friends of friends to the pool this point doesn’t apply. Even if the pool serves 500 people from the same gated community (there are such places here that house 128 thousand people though the one I visit that has that absurd number inside the gated area has about 6 communal pools). What’s substantial here?

My street recently had a block party, and I met a substantial number of people I didn’t already know.

Is it a gated place? If so it is still not a public performance whatsoever. Regardless of if everybody invited a friend.

antidirt (profile) says:

Re: Re: Re:

Unless everybody starts bringing in their whole Facebook friends and friends of friends to the pool this point doesn’t apply. Even if the pool serves 500 people from the same gated community (there are such places here that house 128 thousand people though the one I visit that has that absurd number inside the gated area has about 6 communal pools). What’s substantial here?

I think you need to distinguish between private, public, and semi-public places. One of Congress’s intentions in adding the public place clause was to make clear that semi-public places are “public”:

Under clause (1) of the definition of ‘publicly‘ in section 101, a performance or display is ‘public‘ if it takes place ‘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.‘ One of the principal purposes of the definition was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D. Md. 1932), performances in **5678 ‘semipublic‘ places such as clubs, lodges, factories, summer camps, and schools are ‘public performances‘ subject to copyright control.

H.R. REP. 94-1476, 64, 1976 U.S.C.C.A.N. 5659, 5677-78.

Under this broader understanding of “public,” courts have considered private clubs to be engaging in public performances:

It is clear to the court that the performance of copyrighted musical works at the defendant’s establishment, Muff’s, falls within the definition of public performance *656 found in 17 U.S.C. § 101. Although the establishment is classified as a private club under the laws of the state of Kansas, it is a “place where a substantial number of persons outside of a normal circle of a family and its social acquaintances” may gather. Regardless of the status of the establishment under local law, congressional intent controls the application of the substantive provisions of the Copyright Act. Lerner v. Schectman, 228 F.Supp. 354, 357 (D.Minn.1964). Therefore, the court finds that the performance of copyrighted songs in a Kansas private club is a public performance as defined by federal copyright laws.

Ackee Music, Inc. v. Williams, 650 F. Supp. 653, 655-56 (D. Kan. 1986).

There’s many more examples in the case law. There can certainly be close cases, but I don’t see how the HOA party is one of them.

Anonymous Coward says:

Re: Re: Re: Re:

I hope people realize you are not on the sidelines cheering licensing groups (ASCAP, BMI, and the like) who might be sending such notices to groups like an HOA, but only pointing out that a public performance is generally associated with activities where persons congregate and are not members of a family and their close social acquaintances. Clearly a large neighborhood get-together begins to intrude on the tests associated with public performances, and the fact there may be a gated entrance is ultimately interesting but irrelevant.

DannyB (profile) says:

Re: Re:

The point of a public performance with respect to copyright should be about whether the performance itself is the reason people come to the gathering.

A gathering for some other primary purpose that happens to play a radio or other source of music should not qualify as a public performance. To think otherwise is to mean that music should become a very private thing that people only hear in private. Of course, when that is taken to its logical extreme, it would have the upside of meaning the death of the RIAA.

antidirt (profile) says:

Re: Re: Re:

Was there music and did you report them to your masters?

I don’t think there was, but I have sung “Happy Birthday” in public before. Don’t tell my masters!

Gosh, even if someone just had a book and let others see the cover seems to be an infringement.

Try Section 109(c): “Notwithstanding the provisions of section 106 (5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”

antidirt (profile) says:

Re: Re: Re:

IOW, your still batshit crazy. What else is new?

clicks report

Good grief. I stated an opinion politely. I backed it up with statutory text, legislative history, and case law. I see that you and several others have abused the “report” button and hidden it. We couldn’t dare have people disagreeing and explaining why, right? Ugh.

The irony is that Techdirt freaks out about abuse all the time, yet it tolerates its own system to be abused. It’s strange how TD is so concerned about an abusive DMCA notice, but it says nothing as its own system is abused by those who openly brag about doing it.

Are opposing points of view really so scary that you can’t even bear to look at them? Apparently so. How incredibly sad. Of course, Mike will never say anything. I guess he likes abuse when it suits him.

John Fenderson (profile) says:

Re: Re: Re: Re:

“It’s strange how TD is so concerned about an abusive DMCA notice, but it says nothing as its own system is abused by those who openly brag about doing it.”

I’m not sure who you mean by “Techdirt” here. Do you mean the readers? In any case, it’s not true that we say nothing. I’ve spoken up many times.

Also, there are two huge differences between the two things that you’re comparing here. First, DMCA notices are about forcing other people to remove content, where the “report” button is a mechanism that the site owner is applying to hit own site — and it doesn’t even remove any content (comments). Second, DMCA notices are effective with just one person’s actions. The report button is not: many people have to click that button in order for it to do anything.

Anonymous Coward says:

Re: Re: Re: Re:

What makes your comment here perfectly valid is tthat your original cooment was quite inormative, generally accurate, and helpful to anyone interested in learning about the metes and bounds of copyright law.

The tenor of many comments by others in response shows me that their interest in actual learning lags far behind cluelessly expressing righteous indignation.

Anonymous Coward says:

I would just sign up for Pandora Business or some other streaming service for business. A little more expensive but then you are covered and can stream music. Maybe you don’t need the license or maybe you do. Either way you can stay out of the courts and send the letter back saying you are now licensed and thank them for letting them know you were out of compliance and you have signed up and are licensed. A win win even though the Music Licensing Group would beg to differ since they didn’t get their $150000.

Anonymous Coward says:

They are "educating" the public

Their efforts to milk the copyright for all its worth will someday, hopefully, backfire on them. They are bringing the issues with copyright to the mainstream. Once the public is educated on it, they may finally pressure to have the copyright restrictions and terms loosened. If I were a licensing company, I believe I would want to keep the issues quite if I wished to continue getting milk from the cash cow.

Ed Allen says:

Re: They are "educating" the public

But if they don’t shake people down then how will revenue grow ?

It’s not like anybody WANTS to pay every time they hear a Taylor Swift song.

Used to be that was why we bought physical media. Now, of course, they claim everything
is LICENSED not bought so you need to pay more whenever they say you should.

DannyB (profile) says:

Re: Re: They are "educating" the public

Technology will be the answer.

They will no longer need to shake people down.

Every time you hear Justin Bieber sing you won’t have to be concerned whether you have paid the proper licensing.

The solution: brain implants. Implanted at birth. Any time you see or hear anything copyrighted, your credit card is automatically charged. Problem solved. Everyone happy.

Anonymous Anonymous Coward says:

Re: Re: Re: They are "educating" the public

I argued with myself over posting something similar. It is however the copyright middle-persons wet dream.

But I fear that they will go further and if you dream three notes of a song, charges occur, and I have had situations where some old song that I haven’t hear in many a year get ‘stuck’ in my head for days at a time. I for one could not afford what they might want in retribution, um consideration, er performance fees.

And think, what if it becomes a reality that ESP or Vulcan mind melds are a thing, then thinking of something becomes a ‘public performance’ with all attendant consequences.

Ann says:

Re: Whom exactly needs a License?

Yes, if the music licensing societies are aware of music being used at bars, barber shops, dentists offices, and Macy’s, those establishments will be approached for music licensing.
The law does say that the user actually has the responsibility to obtain their own license. So establishments like these often reach out to the societies first, before the societies even get to them.

That One Guy (profile) says:

Someone tries to help you? Sue 'em, that'll teach them!

So the labels and recording industry know how valuable radio-play is, to the point where they go out of their way to pay(first directly, now indirectly) to get their music played, and yet ‘collection’ agencies seem to be determined to crush any way for people to actually listen to the radio.

Yet more evidence that it has nothing to do with ‘protecting the artist’, and everything to do with the middle-men getting paid.

Anonymous Coward says:

until Congress is reined in from giving the entertainment industries everything they demand and judges use some freakin sense in copyright cases, this scamming will continue! when there is a chance of frightening someone into paying out, even when they dont have to, there will always be those willing to take it, under any means possible. and it’s not just copyright related stuff either. there is far too much going on that benefits politicians who are willing to do more or less whatever they are asked to do because of the kickbacks. lets face it, the USA should have the best broadband in the world, more or less, and it has complete shit connections and complete crap speeds! the isps have been allowed to do whatever they want, taking taxpayers money in return for doing nothing! and they never get pulled up over what they dont do either. there is no competition because stupid senators have coined in off the 3-4 main players and any challenge to the supremacy they have is quickly dismissed! even when some work is carried out, the speeds are terrible, the connection always intermittent and the caps down among the dial-up days. what politicians have done is push the USA down the ladder, making room for emerging countries and those that have removed the monopolies and implemented proper systems. they, however, are of the like the USA will never see!!

DannyB (profile) says:

Maximalists and the law

I think the maximalists have achieved their objective in places like Saudi Arabia.

No music is listened to at all. Except secretly, in private. Just the way the copyright maximalists want it.

The end result of both kinds of insanity are the same. If the only way you can listen to music without it being a (‘public performance’ | ‘punishable crime’) is to do so secretly in private, then that is the only way that music will be listened to.

Theodora Michaels (user link) says:

a few corrections and citations

1) SESAC is correctly spelled with all caps. Ditto for ASCAP and BMI.

2) SESAC (and the other performing rights societies) don’t represent artists at all. They represent songwriters, the heirs of deceased songwriters, and music publishers. Well, they represent artists in the case of people who write their own material, but they’re not representing them as artists. The societies issue licenses for use of the songs (words and music), not use of particular recordings.

3) I don’t think SESAC is out of line to argue that this a public performance. Copyright owners of musical works have the exclusive right “to perform the copyrighted work publicly” (§ 106 (4)), which is defined (redundantly) as “to perform or display it at a place open to the public” (§ 101).

It seems like about once a year, one entity or another is started by one of these letters, and it makes the news. This has been going on for decades, with everyone surprised by it anew each time (with me being surprised that everyone else is surprised). This isn’t new. It’s exactly what the societies have been doing for over 100 years.

The HOA is free to argue that this isn’t a public performance, or to not play music, or to get a license, and/or to lobby for a change in the law.

Not One to Complain, But.. says:

Re: a few corrections and citations

The HOA is free to argue that this isn’t a public performance, or to not play music, or to get a license, and/or to lobby for a change in the law.

Individuals and the public at large are not the people who have misappropriated the artists’ money to spend on lobbying for new laws or changes to the existing laws. Its pretty fricking tough to fight what should never have been instituted in the first place by these lawyers.

John Fenderson (profile) says:

Re: a few corrections and citations

“SESAC (and the other performing rights societies) don’t represent artists at all”

I think you’re splitting hairs here. SESAC and the like do represent artists. They just don’t represent performing artists. (Unless you’re trying to say that authors of lyrics, music, novels, etc., aren’t artists).

“Copyright owners of musical works have the exclusive right “to perform the copyrighted work publicly” (§ 106 (4)), which is defined (redundantly) as “to perform or display it at a place open to the public” (§ 101).”

A circular definition is logically the same as no definition at all, so “public performance” is effectively undefined. Which, I suppose, is why these companies can get away with making ludicrous claims about what constitutes a “public performance”. (Note: I’m not saying this is or is not one of those times.)

“with everyone surprised by it anew each time (with me being surprised that everyone else is surprised)”

Why do you think anyone is surprised?

Marc John Randazza (profile) says:

There is some authority suggesting your view might be right. See Hinton v. Mainlands of Tamarac, 611 F.Supp. 494 (1985) (https://scholar.google.com/scholar_case?case=3210050263880336874&hl=en&as_sdt=6&as_vis=1&oi=scholarr)

But, a later case seems to focus it more. Fermata v. Champions Golf Club, 712 F.Supp. 1257 (1989) (http://www.leagle.com/decision/19891969712FSupp1257_11784.xml/FERMATA%20INTERN.%20MELODIES%20v.%20CHAMPIONS%20GOLF%20CLUB)

Copyright Guy (user link) says:

You Misunderstand Copyright Law

You misunderstand copyright law. Playing music at a pool that is open to more than a small circle of family or social acquaintances is, as a matter of law, a public performance. I have copied the relevant portion of the Copyright Act:

“To perform or display a work “publicly” means—
(1) to perform or display [or transmit via any device or process] 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 . . . .”

17 U.S.C. § 101 (2014).

Here, the HOA has transmitted, via whatever device they use to play music, at a “place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.” The fact that the pool is not open to just anyone does not render the performance non-“public” within the meaning of § 101. Otherwise, any for-profit establishment would be able to escape paying licensing fees simply by limiting entrance to some segment of people.

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