Thoughts about illegal downloading

[BT Bob]

Steve...

 

You didn't "steal" in the sense of criminal activity.

 

This is not criminal law.

 

It's civil law. Business law if you will.

 

Selling what you have downloaded, may come under criminal law or not.

 

m

I'm not sure about this. Certainly under the law in England & Wales theft Acriminal offence) is defined as taking someone else's property with the intention of permanently depriving them of it.

Surely, by downloading music without paying the intention is to deprive the "owner" of their royalties as well as their copyright/IP?

[S t e v e]

I'm not sure about this. Certainly under the law in England & Wales theft Acriminal offence) is defined as taking someone else's property with the intention of permanently depriving them of it.

Surely, by downloading music without paying the intention is to deprive the "owner" of their royalties as well as their copyright/IP?

 

on the same hand, if you leave ur car keys in the ignition and someone jumps in and drives off with it the ins company wouldn't pay out as you left the car unatended and on display for the thieves...same principle, online music it there to to "stolen"

[milod]

Call it what you will, but it is considered a "civil," not criminal lawsuit in the US.

 

In short, in the US if you illegally spit on the sidewalk, you may be issued a ticket by police and it is considered a minor crime. Technically it also goes on your record as a criminal offense.

 

But if you download music and ASCAP or BMI go after you, they do not go to the prosecuting attorney, whatever he may be called in various Anglophone jurisdictions, they file a civil lawsuit which then probably will seek damages.

 

It is not a criminal offense; it's an entirely different area of law. Yeah, it can get complex, but that's how it's run. I do believe that it's the same in the U.K. and other Anglophone nations, or at least has been handled similarly.

 

However, and this comes to how antiquated our laws are and how little "we" tend to understand them, the licensing outfits like ASCAP and BMI love to use the term "steal" largely because it suggests the same thing as bank robbery. It's not. It's an entirely different type of law. "Steal" may be appropriate by some definitions, but definitely are not by other definitions in the sense of "law."

 

Here's one way of looking at it as we enter an age of increasing artificial intelligence such as "Commander Data" on the second generation tv series. If Data hears a piece of music, then replicates it perfectly, is that an illegal performance any more than if I replicate it perfectly, assuming I can? Where might it be considered "illegal?" In a saloon for money or in one's living room for fun? Without pay at a church benefit?

 

Where is the difference between "memory" and "recording?"

 

Again, I think we're in an entirely new age and we need to consider many factors in a complete overhaul of the whole darned thing.

 

m

[BT Bob]

on the same hand, if you leave ur car keys in the ignition and someone jumps in and drives off with it the ins company wouldn't pay out as you left the car unatended and on display for the thieves...same principle, online music it there to to "stolen"

Crikey, Steve - that's stretching a point, surely?

 

Most right-thinking people know it's wrong to take a car (or anything else) that's not yours - even if it's left with keys in (in the case of the car).

Same with, say, leaving a bicycle outside your house unlocked. Yes, you'd probably be daft to do it and yes, your insurers will almost certainly not pay out. But that still doesn't make it OK to take it.

 

In fact, the car thing is interesting - most cars are knicked by "joy-riders" who just drive them around, then dump them. Because most "stolen" cars are recovered, the argument goes they're not "stolen". Hence most "joy-rider" who are caught are charged with "taking without consent" (so-called TWoC-ing).

[S t e v e]

Crikey, Steve - that's stretching a point, surely?

 

Most right-thinking people know it's wrong to take a car (or anything else) that's not yours - even if it's left with keys in (in the case of the car).

Same with, say, leaving a bicycle outside your house unlocked. Yes, you'd probably be daft to do it and yes, your insurers will almost certainly not pay out. But that still doesn't make it OK to take it.

 

In fact, the car thing is interesting - most cars are knicked by "joy-riders" who just drive them around, then dump them. Because most "stolen" cars are recovered, the argument goes they're not "stolen". Hence most "joy-rider" who are caught are charged with "taking without consent" (so-called TWoC-ing).

 

genuine people like you and i wouldn't consider going out and stealing a car, BUT sitting at the pc and getting ur fave tunes for free is SO much easier...just making a point B)

[BT Bob]

Call it what you will, but it is considered a "civil," not criminal lawsuit in the US.

 

In short, in the US if you illegally spit on the sidewalk, you may be issued a ticket by police and it is considered a minor crime. Technically it also goes on your record as a criminal offense.

 

But if you download music and ASCAP or BMI go after you, they do not go to the prosecuting attorney, whatever he may be called in various Anglophone jurisdictions, they file a civil lawsuit which then probably will seek damages.

 

It is not a criminal offense; it's an entirely different area of law. Yeah, it can get complex, but that's how it's run. I do believe that it's the same in the U.K. and other Anglophone nations, or at least has been handled similarly.

 

However, and this comes to how antiquated our laws are and how little "we" tend to understand them, the licensing outfits like ASCAP and BMI love to use the term "steal" largely because it suggests the same thing as bank robbery. It's not. It's an entirely different type of law. "Steal" may be appropriate by some definitions, but definitely are not by other definitions in the sense of "law."

 

Here's one way of looking at it as we enter an age of increasing artificial intelligence such as "Commander Data" on the second generation tv series. If Data hears a piece of music, then replicates it perfectly, is that an illegal performance any more than if I replicate it perfectly, assuming I can? Where might it be considered "illegal?" In a saloon for money or in one's living room for fun? Without pay at a church benefit?

 

Where is the difference between "memory" and "recording?"

 

Again, I think we're in an entirely new age and we need to consider many factors in a complete overhaul of the whole darned thing.

 

m

 

Milod - I'm still unsure about the criminal/civil aspect of this. I still think it's considered "stealing" in respect of the copyright & IP of the "owner of the material. But I'm not a lawyer, and I know less about US law than I do about UK law, so I'll bow to your superior knowledge.

 

In relation to replicating music, my understanding has always been that if you reproduce music in a public place (whether for money or not), you need the permission of the copyright holder to do so. But I believe that's the important bit - "public"...

I think this applies to, say a coffee-shop owner playing background music (or the radio) - in this case (in the UK) he would need a Public Performance Licence (PPL) for which he pays an annual fee.

In the case of a performer playing someone else's songs in public, I think they also should have permission to do this. Obviously, in this case, it's pretty obvious that this is flouted - you can go out to any pub with bands playing live any night of the week and most of them will be playing covers of some sort and I bet also none of them have permission. I've never heard of any of them being prosecuted (or sued). Doesn't make it right, though.

[BT Bob]

genuine people like you and i wouldn't consider going out and stealing a car, BUT sitting at the pc and getting ur fave tunes for free is SO much easier...just making a point B)

 

Ha ha - yes - I realised that, but it's an interesting debate.

 

pssst - wanna buy a car stereo, mate?? [-X [-X

[milod]

Guys, it ain't "criminal" law, at least not in any Anglophone nation I'm aware of.

 

It ain't criminal. Period. Exclamation point. Really. Don't believe me. Look it up. Pay money to a lawyer.

 

It ain't criminal even as much as spitting on the sidewalk.

 

It's a civil action where one "person" says, "you used intellectual property on which I hold a copyright without permission and I'm going to sue you for 'damages' that I claim your action has caused me, plus an additional civil penalty to make an example out of you' if I win."

 

If you take a physical object without permission, it's a criminal offense. If you use a copyrighted "something-or-another," it ain't.

 

BT: The law is roughly the same in the US and UK. Copyright law comes under civil, not criminal statutes or case law.

 

What you see as a customer or even a musician may or may not reflect legal status of a venue that features music. The place may or may not be paying money to ASCAP and/or BMI or the equivalent in the UK, but if not, in theory you as a musician have performed an instance of copyright infringement by playing covers, and the venue has acted in a way to profit from copyright infringement.

 

Yeah, there are some differences, but it basically is the same "common law" concept that Anglophones share in one way or another.

 

In the US we have a number of instances where BMI/ASCAP have closed down venues featuring live music, even those doing traditional folk or self-written music, through threats of a civil lawsuit claiming copyright infringement. There is sufficient case law that by the time a venue might win its case, it's bankrupt.

 

It all derives from "your" <chortle> and "my" common Anglophone foundational legal system.

 

If I may, here's the start of the Encyclopaedia definition under which this falls.

 

m

 

"Tort law (i.e., the law relating to private civil wrongs) is largely common law, as opposed to statute-based law, in England, Canada, and the United States. Several major reforms have been introduced along the same lines in different countries. Allowing claims by dependents of persons tortuously killed and removing the immunity of the crown or government or charitable institutions from tort claims provide examples. The liability of manufacturers to the ultimate consumer was first laid down by U.S. and then by English judges..."

[charlie brown]

We (recently) lost a venue, for playing "covers," because of

threats from ASCAP/BMI, to the venue of fines (minimum 15,000

PER SONG) for 1st offense. The next time...if there was one,

the fine goes up $30,000 PER SONG, or more. This seems to

becoming a more frequent practice, from ASCAP/BMI, and local

bars, or small clubs, where "Cover" bands play. There was an

article, recently here, in the ASCAP/BMI thread, detailing a

lot of what's going on. Check it out, or Google it!

 

CB

[milod]

CB...

 

It's worse than that. Even if the club does not allow covers, and sticks to originals and/or traditional folk tunes, ASCAP/BMI still threatens them.

 

The way they shut them down is simply to state in effect that since there's no proof that no licensed music was played, they will sue the club regardless. Then the club can try to "prove" it did not have any licensed music played.

 

Since the above is virtually impossible, and even with video tapes purporting to be the entire show, imagine being a club owner hauled into court with the expense of a specialized copyright attorney.

 

No way. So... instead they either cave in or stop having live music. With small clubs, it tends to be the latter.

 

Ain't that a wonderful way to theoretically "protect" musicians? Ain't it great to promote live music? Oh - but they're not in that business, come to think of it. They're in the "licensing" business.

 

Ask either company how they determine who gets royalties and figure how anybody but a few major corporate label artists will ever see a nickel... Assuming they show you anything at all, which I doubt. But gee, the execs and employees of ASCAP/BMI make a better living than most pro musicians while taking advantage of decades-old case law that may or may not make sense nowadays... Hmmmm.

 

That, my friends, is why I think we need an overhaul.

 

m

[charlie brown]

Well, I didn't know, that doing one's own material, was a problem,

as well. I suppose the venue owners, given the fines invloved, just

want to cover their behinds, and/or stop having "live" entertainment,

altogether. That is NEVER good, for "music," IMHO. It's decent cover

bands, that help keep an artist's music alive, beyond their normal

"air play" run, or at least, it used to be! Especially now, since not

everyone can afford the high cost of tickets, these days...or, gas to get

there, and motel costs, too...if you don't live near a major concert city/venue.

 

I know, this is slightly off-topic, but it IS related.

 

CB

[milod]

CB....

 

We agree... but...

 

Don't use the term "fine," please.

 

Fines are a matter of criminal law.

 

The "costs" involved in ASCAP/BMI civil lawsuits are instead a convention that has become embedded in civil law jurisdictions in the US due to case law.

 

That fact, however, enables the bullying.

 

Now add the threat of "you can't prove no licensed music will be played, so pay us now or pay us later and your lawyer too." That is far beyond what should be considered ethical, but they can get away with it while sounding righteous.

 

Again, one must note that when asked how they determine who gets what royalties from the cash a venue would play to allow "licensed" music (they claim even some classical and baroque stuff as well as true centuries old folk music), you never get a straight answer. Do you figure the descendants of JS Bach actually get a nickel from ASCAP? Or whoever it was who wrote "the dirty ditty" known now as Greensleeves?

 

m

[charlie brown]

I understand, Milrod. I just think the Vendors will still feel "Fined," regardless of

legal or correct terminology. :>) Whatever the term, WE get screwed, out of playing

venues, more and more! As one fairly recent "country" song lamented..."That S..., just

ain't right!" (Smile)

 

CB

[milod]

CB...

 

Absolutely correct on that. It's sad, IMHO.

 

m

[Notes_Norton]

Back before I was a low-carb person, I used to go to a small pizza restaurant once a week for lunch. When I say small, I mean about 12 booths.

 

The ASCAP rep came in and told them it was illegal to play the radio there without a license because the songs were copyrighted. He wanted them to remove the radio itself. The owners countered by playing CDs of classical music that were no longer under copyright. The fight was still going on when they changed the laws to allow radio play.

 

Most clubs that I perform in have an ASCAP license and the decal displayed somewhere in the club. When no decal is displayed, I don't ask, I just assume.

 

And Milod, I don't think we need a musician's union, but instead a professional association. The majority of us are not sitting in an orchestra chair getting paychecks with taxes withheld and a pension plan. Instead, we are self-employed small businesses providing a service to others. We need a professional organization much like the doctors with their AMA or music store owners with NAMM.

 

Something that fights for our collective rights, not our collective salaries, since most of us do not get a salary.

 

We do compete with each other on many fronts, including price, but we have a lot in common too, and what we have in common is what we should use to form the PA.

 

But I really don't see that happening and I have neither the time nor the know-how to do it.

 

As you pointed out, the current copyright laws protect the publisher more than the performer, and it so because (1) we don't have a strong PA and (2) they have the money and the lawyers to bribe influence the lawmakers.

 

Notes ♫

[milod]

Bob...

 

The reason I used the term "union" is that in the olden days in this area, the "union" was mostly interested in the small group performer, with secondary emphasis on the stage hands in some relatively active medium venues.

 

So... yeah, more like your term "association."

 

For example, I imagine also potential of group insurance policies, info on venues that may be problems for musicians, lobbying, etc., etc.

 

I know that I feel sometimes that musicians are divided by society into two classes quite unfairly.

 

There are the academic/classical folk who get extra cash not only from academic budgets, but also from state/national "arts" associations.

 

Then there are the folks who play music for a living in venues ranging from outdoor weddings to saloons who obviously are of a lower class. Obvious, at least, to the "better quality" folks on arts councils and in academia. The fact that you probably perform to more people in a week than the "quality" people do in six months seems kinda irrelevant.

 

I find that division repugnant and that's another reason for an "association."

 

But, as you say, getting some sort of association that might make a differences is no easy sort of objective. Hmmmm. I wonder if instrument manufacturers might wish to sponsor a startup?

 

m