You very specifically mentioned bars, restaurants, and live venues.
All of which can be sued by the sound recording copyright holders, just like terrestrial radio stations are here. (Like terrestrial radio, they don't pay anyone but songwriter PRO's like ASCAP or BMI for the music they play.)
These aren't the people who have been suing at all, those people were Flo and Eddie, these people are ABS Entertainment.
Flo and Eddie are not (just) songwriters, and they are not suing as songwriters. They are (also) the copyright holders of the recordings (the "masters").
The basis of their suits, like the basis of ABS Entertainment's suits, is that they (as sound recording copyright holders) have public performance rights under state statutes or common laws. (Laws which are preempted by Federal copyright statutes for post-1972 sound recordings.)
(by the way 'mechanicals' ONLY refer to the copyright that is held in the sound recording, it is paid to the OWNER OF THE MASTER TAPE . They are never paid to the songwriter unless the songwriter is also the owner of the master tapes.)
That's not how the term is usually used. See e.g. this FAQ by HFA:
A mechanical license grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CDs, records, tapes, ringtones, permanent digital downloads, interactive streams and other digital configurations[...]
A mechanical license DOES NOT grant the right to:
- Reproduce sound recordings, also known as “master use rights”.
Master use rights are required for previously recorded material that you don’t own or control. HFA doesn’t issue master use licenses. Master use rights can only be obtained from the owner of the master recording, usually a record company.
So they've been paying pre 72 songwriters all along.
True, but this article (and my comment) is about the sound recording copyright holders. (By the way, "mechanicals" usually refer to the royalties paid to songwriters whenever a song is reproduced "mechanically," say a CD or download.)
These are the people who have been suing under various state laws (both "common law" and statutory).
They have to do this under state laws, because under federal law, they do not have a copyright in public performances (other than for Internet radio).
Pre-1972 music will disappear because it will have to be paid for like post-1972 music?
Except that, for terrestrial radio, post-1972 music does not have to be paid for.
At least, not to the sound recording copyright holders. And since pre-1972 sound recording copyright holders, unlike post-1972 copyright holders, have a claim against radio stations (and bars, and restaurants, and live venues...) that has no statutory limits or rates, those radio stations (&etc.) will simply stop playing music rather than be sued for whatever amount the sound recording copyright holders want.
They're paying nothing now, and it doesn't take a genius to see that they'll stop playing the music before they risk being sued for trillions of dollars.
So can you explain why nobody who committed copyright infringement has ever been charged with theft?
Oh, they have - and it was found not to be theft by the Supreme Court:
The phonorecords in question were not "stolen, converted or taken by fraud" for purposes of 2314. The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use.
When an injunction is sought against a service provider for the actions of its third-party users, that doesn't make the service provider a third party. The injunction is against the service provider directly.
And that is the type of injunction that the MPAA was seeking. The injunction didn't state that "MovieTube be required to transfer the domain names..." (&etc). It stated that "Registries and/or Registrars be required to transfer the domain names..." (&etc). The injunctions were directed at the service providers directly.
There is a fundamental difference between being the party enjoined and being a party bound by that injunction because it is in active concert with the party enjoined.
For the purposes of 512 safe harbors, there is not. "A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief..."
It is all-encompassing. If you have those safe harbors, it doesn't matter if you might be considered "in active concert with the party enjoined." Even if you are, you cannot be bound by any injunction whatsoever that falls outside of 512(j).
The safe harbors in 17 USC 512 place absolute limits on the injunctions that can be granted under Rule 65.
Of course, it doesn't make any difference, because courts have defined "active concert or participation" very narrowly. For example:
The Federal Rules of Civil Procedure provide that: "Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." This is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in "privity" with them, represented by them or subject to their control. In essence it is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.
The activities carried out by the OSP's do not even come close to this level of involvement. There is precedent on this point:
David, Mary, and Lisa Blockowicz received an injunction ordering Joseph David Williams and Michelle Ramey to remove defamatory comments they posted about the Blockowiczs on www.ripoffreport.com (“ROR”), among other websites. Williams and Ramey never responded to the injunction, prompting the Blockowiczs to contact the websites on which the statements were posted to secure compliance with the injunction. Every website complied, except for ROR. The Blockowiczs asked the district court that issued the injunction to enforce it against Xcentric Ventures, LLC, (“Xcentric”) the host of ROR, and Ed Magedson, the website's manager, pursuant to Rule 65(d)(2)(C). The district court declined, and the Blockowiczs appeal the district court's decision. They argue that Xcentric and Magedson fit within Rule 65(d)(2)(C), and thus should be bound by the injunction, because they had “actual notice” of the injunction, and they were “in active concert or participation” with the defendants in violating the injunction by failing to remove the defamatory statements. We affirm: Xcentric and Magedson were not “in active concert or participation” with the defendants pursuant to Rule 65(d)(2)(C).
The point is that 512 doesn't apply to third parties such as Google since they're not being enjoined.
And that point is the one that is false. An OSP is, by nature, a third party. 512 only applies to third parties such as Google.
Being prevented from aiding an enjoined party is not the same thing as being enjoined.
If that "prevention" takes the form of a court-ordered injunction, then yes, those parties are being "enjoined." That's pretty much the definition of the word.
This was exactly what the MPAA sought. They referred to it specifically as "preliminary injunctive relief" in their filings.
Let's make something absolutely clear. If an OSP has 512 safe harbors, the only relief that any court is legally allowed to grant against that OSP is specified in 512(j). They cannot do anything more than that.
If a court-ordered action on that OSP is outside the bounds of 512(j), the court is acting unlawfully. You can call it whatever you like, try to redefine the term "enjoined" so that is only applies to named defendants, or whatever. But it's still unlawful.
The injunction against the defendants comes under 17 U.S.C. 502. The applicability of that injunction to those in "active concert or participation" with the enjoined defendants comes from F.R.C.P. 65.
Except that section doesn't nullify 17 USC 512. (Indeed, if an OSP is eligible for 512 protection, I doubt it would even be possible to claim that they are in "active concert or participation" with the third party.)
The 512 safe harbors don't mention anything about the OSP's themselves being named defendants (or not). It is all-encompassing: "injunctive or other equitable relief." There is no exception to that very, very clear statement; it's not "injunctive or other relief, provided that they are named defendants."
Simply put, any entity that has 512 safe harbors absolutely cannot have an injunction levied against them on account of infringement by their users - except as provided for in 512(j). This is black-letter law.
To be clear, News Corp. is not Fox News Network, LLC. They are separate and distinct legal entities, and to equate them as one in the same because one may be the corporate parent of the other is a mistake.
Interesting. So you are saying that if News Corp. doesn't hold the copyright on either the Fox News Network or Sky Network broadcasts? That if someone infringed on a broadcast from one or the other, News Corp. wouldn't have standing to sue?
If not, then your point is irrelevant. If News Corp. is the copyright holder of both broadcasts, they DMCA'd themselves.
it has rejected 43% of the DMCA notices it has received as either incomplete or abusive.
That's actually at the low end of the spectrum. If you consider an "invalid notice" to be a notice on content that has already been taken down, that figure jumps to 57%.
It shows, in no uncertain terms, that DMCA abuses are not "outliers."
Now, to find out if other service providers or search engines (like Google or Bing) are taking down/delisting those same abusive notices. This should be possible if they send those notices to Chilling Effects.
Re: Could be worse, they could be dealing with Google's competition
I still do not understand why they think that google's competition, Apple and Microsoft, would be any easier to deal with.
Because they are already working with Google's competition.
The MPAA is singled out here - and it's justifiable, since they're the worst offender - but they didn't act alone in bribing Jim Hood to go after Google.
Another partner in Project Goliath was an organization called FairSearch. This is an anti-Google coalition started by competing search engines (Expedia, TripAdvisor, etc.), Oracle, and Microsoft. They're also the ones who are behind the Google antitrust case in the EU.
And, there's also organizations like Arts+Labs. It is funded mostly by major telecoms, and was later joined by music organizations like BMI and the SGA. It was set up as an anti-Net Neutrality organization, and later went on to support SOPA.
Here's an interesting tidbit: Chris Castle (of Music Technology Policy/Trichordist infamy) being interviewed as part of Arts+Labs, pretty much admitting that they're an astroturf organization: https://www.youtube.com/watch?v=bXIoJVFmKvQ
Of course, like a classic astroturf group, they seem to have disbanded after their policy advocacy failed; their site is offline.
...There's a lot more of course, but I think you get the idea.
Re: This anomaly probably due to automated skimming, such as of publicly available "hosts" files that blacklist: "127.0.0.1 piratesite.com",
what would Techdirt do without anomalies to be used against copyright?
Yet if a UGC site has as many infringing files as there are these DMCA "anomalies," rights holders would successfully sue them out of existence.
Funny how you consider "oh, it's a mistake that got through our system" to be a valid defence when censoring protected speech, but when the censors use that excuse, you defend them to your dying breath.
Sad, because I have always found that a discussion involving seemingly incompatible and diametrically opposed views are the ones that provide the greatest opportunity for actually learning about a subject and all its nuances.
Well whaddaya know, GamerGate folks aren't the only ones into sea-lioning.