EDIT: Bummer, it looks like this route is not available to the copyright holder, since states have sovereign immunity against copyright infringement claims. See _Allen v. Cooper_, 589 U.S. ____ (2020).
Also, they're not trying to collect anymore:
Disney C.E.O. Apologizes to P.T.A. Asked to Pay After ‘Lion King’ Screening - link: https://www.nytimes.com/2020/02/05/us/lion-king-berkeley-mov...
That said, he should be fired for reasons that have nothing to do with copyright. It is an obnoxious attempt to avoid accountability.
IANAL, but I think this would be a tenuous claim. If I see you with a camera and do something while you are pointing the camera at me -- with the express stated intent of having you film me doing it, no less -- I don't think I would get to (credibly) claim "hey, not my responsibility, I just happened to be doing that thing and you happened to catch me doing it on camera."
The cop has no clue whether or not the person is actually filming or not, no clue what the person intends to do with the video or audio, and most importantly - has no involvement or control in either the recording, editing, licensing or distribution of the material.
There's no way in high heaven that someone's going to be construed to be in violation of the 'distribution' artifact of copyright law if they have no participation or really even awareness of the distribution itself.
This thread is full of absurd arguments.
The normal way you play music is for your own enjoyment. It's incidental if other people overhear. He said that wasn't what he did.
The harmed party needs to be the owner of the copyright, because people listen to this instead of paying them.
Unauthorized public performance is a violation of the copyright holder's exclusive rights. Market effect is only 1 of several factors examined together for a fair use defense.
They have no reason to sue this guy that doesn't apply to millions of other cases that happen every day.
He's not making a public production or broadcasting either - the person doing the filming is doing that.
Otherwise using a radio would basically be illegal.
Playing music for people waiting in the lobby at the station, or restaurant patrons, DJ at a club or event -> public performance.
Playing music at your desk/office/car/workspace/radio for yourself and whoever you happen to be working with at the moment -> not a public performance.
If you want to make a more eccentric claim, you should try to find some examples of case law to support it.
So here is the relevant case law from the Supreme Court back to the 19th century [1]
None of it really comes close to establishing that someone playing a radio for themselves and those in front of them would be tantamount to public performance.
[1] https://en.wikipedia.org/wiki/List_of_United_States_Supreme_...
OTOH, when you purchase (technically, receive a license for) a song from, say, iTunes or Spotify, that license doesn't include a public performance right. That's the difference.
You're basically implying that 'everyone is breaking copyright all the time' which is a spectacular claim unsupported by the case law which I presented to you.
You'll have to provide some basic logic and hopefully evidence to support the claim that someone playing music for themselves and even a couple of other people they are engaged with is a 'public performance' because at it stands there's no reason to believe that.
Millions of people play unlicensed music beyond the narrow interpretation of this statute every day, and there's 200 years of case law that I referred you to that doesn't come anywhere even close to indicating that any court is going to take a narrow view of that statute.
The case law highlights where that 'boundary' is and it's beyond a cop or anyone else playing music from their person, on the job or otherwise.
The law says publicly means 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.[1]
More radio use infringes than you think. But performing rights organizations can't force their way into work areas not open to the public. Infringement by individuals tends to be transient and anonymous. Suing individuals could provoke a backlash. And courts would be more sympathetic to individuals claiming fair use.
My claim is consistent with the statute. Yours isn't. It's up to you to find case law.
1) He didn't indicate that he was not playing it for himself.
2) He definitely didn't indicate that he was making a public performance, nor was he playing it for the benefit of others.
3) The point is moot: this cop may have said one thing or another - but otherwise cops cay play this music for themselves which is obviously within their rights.
Your claim is nowhere near the statute, and you have nothing remotely near this in case law.
This isn't about laws or copyrights, because the arguments are ridiculous and embarrassing for these people making them - it's hardly worth pointing out.
It's about bias and populist delusions of the people who for some reason 'hate cops'.
It's really embarrassing for HN to see all this mental energy steered into anti-intellectual arguments and bigoted posturing.
The bad faith argumentation is apparent in the thread, and it's worth pointing out because that is actually what this is all about.
1) It's a stretch to conclude a cop playing music on a radio is a 'public performance' - and yet the commentary here jumps immediately to that conclusion.
2) Someone making a production of some activity in public, and then uploading said production, may very well be in violation of copyright if that production contains copyrighted material.
But nobody at all seems interested in commenting on the potential culpability of the person making the recording.
This is typical of the few specific HN issues where the community is triggered, where they plainly lack the ability to be dispassionate, and lack self awareness. It's shameful really.
There are other 'controversial' issues, but they tend to be 'sided' in that, there's a lot of more extreme discussion going on either side.
HN is rabid about copyright and 'information libertarianism' and what they perceive to be arbitrary authoritarianism (even though policing is not that) - and this issue has both: police, and copyright, so it's an ugly mess of sided reasoning.
I would expect most judges to take a very dim view of that argument.
Youtube's algorithms, however, will do what they're written to do...
It would be 'dim' for a claimant to suggest that the cop is participating in some kind of attempt to break copyright.
Rather, more obviously, the person doing the filming in public, without anyone's permission or awareness, just as any other filmmaker/documentarian, is unambiguously a party to some kind of production that ultimately may or may not violate copyright law.
Moreover, the interpretation of the statute, as indicated by a very long trail of case law history indicates that the boundaries for 'pubic performance' are fairly wide, at least wider than the most narrow interpretation of 'for oneself and close family' etc..
The only thing it is doing is creating a false positive in YouTube's copyright protection algorithm.
But yeah, YouTube's policies and mechanisms don't care about the fine points of law.
https://en.wikipedia.org/wiki/Fair_use#3._Amount_and_substan...
Basically, the record company would have to make the case that because this cop played the song, they are losing sales because I guess people are listening to this instead. And not on YouTube, in person, because the person posting it on YouTube would be the one responsible for that. These arguments are utterly absurd.
You can't successfully bring a tort case (which copyright infringement is) if you can't demonstrate harm.
Where did you go to law school, exactly?
Copyright infringement is not tort. Copyright infringement is a creature of federal law, not common law like tort is. And copyright owners can claim statutory damages of up to $150,000 per work in lieu of actual damages at their election. See 17 U.S. 504(c).
And fair use is a defense to a prima facie copyright infringement claim.
If not being published on YouTube were the criteria for concealment, then wouldn't the person making the recording also be guilty if they simply decided not to post/share it?
Preventing publishing or distribution isn't concealment.
The cop isn't hiding anything.
YouTube, may decide not to publish something, and that's not 'concealing' anything either.
There's almost a 0% chance that if this went to court on copyright claims, that someone playing music while on the job i.e. cop, insurance adjuster, home appraiser etc. is going to be found in copyright violation.
There's almost a 100% chance that if you film people who are listening to music - and that copyrighted music is in your production ... that's it's going to be in violation.
It's not a perfect civil rights situation, because these laws were not designed for that.
It just is what it is.
Probably they will have to make some policy change for this issue.
By your logic, if someone is playing music in a park or beach, I could start filming them and they'd have to turn it off. Obviously that is ridiculous.
He should be fired for other reasons (making the department look bad by attempting to avoid accountability), but he is not violating copyright. Nor would the person filming it be, since "courts consider whether the use in question acts as a direct market substitute for the original work", and this isn't. No one is going to say "I'm not going to pay for Taylor Swift's version because I can just watch this video of a cop playing it on his phone" https://en.wikipedia.org/wiki/Fair_use#4._Effect_upon_work's...
That literally is the definition of "public performance." He is in public, playing for an audience that is not his private close family and friends.
> By your logic, if someone is playing music in a park or beach, I could start filming them and they'd have to turn it off. Obviously that is ridiculous.
You can't perform publicly without the copyright holder's permission regardless of whether someone is filming you. You have to turn it off anyway, recording or not. I agree that this is a ridiculous part of copyright law and should not exist. I'm leveraging the system we have here to fight oppression.
The fact that he plays it knowing that it is being filmed for broadcast is what adds the "willful" piece to the already "infringement" piece of the public performance.
I'm not making a normative argument here - copyright law in the US is asinine and needs major reform. I'm just combing through this like a determined prosecutor/RIAA goon would, looking for the right charge.
What you're doing is taking a phrase which has a contextual meaning within copyright law, looking at the individual words of the phrase based on their common usage, and then saying that your new understanding based on the individual words is how copyright law actually works.
If I drop my phone, and then walk into a McDonalds, am I guilty of "breaking and entering"? That's what you're doing here with "public performance"
But that's not (just) what the officer was doing - he was playing music as background to his business operation, which RIAA have definitely sued establishments over[0]. If you're playing music as a soundtrack for your business (in this case, the business of law enforcement), you need a license. Even in a non-business context, if they had a chance to sue you for playing music in public, they would. There just haven't been any prominent/worthwhile cases for them to do so. Just because it hasn't happened doesn't mean that isn't what the law allows.
[0]: https://www.frantzward.com/news-blog/june-2017/let-the-music...
It's mind blowing to me that people on Hacker News don't see the absurdity of enforcing copyright law as you are suggesting. This article sums it up well:
https://www.techdirt.com/articles/20071005/094552.shtml
"The repair firm, Kwik-Fit, has a pretty weak response, saying that it's banned personal radios for ten years. Instead, it should be fighting back on the idea that this is a public performance in any way. Otherwise, you get into all sorts of trouble. If you have the windows open in your home and are listening to your legally owned music (or your TV!) and your neighbor can hear it, is that a public performance? What if you live in an apartment building with thin walls? What about when you're driving with the radio on and the windows open? What if you're in your cubicle and the folks in the cubicles around you can hear the music? At which point do we realize how silly this becomes? It's difficult to see how, with a straight face, anyone in the music industry can claim that any of these situations represents harm done to them."
Is that really the world you want? Geez.
> A “public performance” of music is defined in U.S. copyright law to include any music played outside a normal circle of friends and family that occurs in any public place.
This is a quote from a RIAA member explaining their interpretation of public performance.
Yes, it does; most public performances other than radio/TV broadcast are, by nature, only for those in the immediate vincinity.
> By your logic, if someone is playing music in a park or beach, I could start filming them and they'd have to turn it off.
No, because asserting that this case, independent of how other Fair Use factors might apply to it, doesn't fall into Fair Use because its purpose is to suppress commentary does not indicate that your counterfactual would not.
Market effect is 1 of several factors courts consider for fair use.
If you knew you were being recorded, had reason to be believed it would be broadcasted and your stated intention was to turn that otherwise normal and non-infringing broadcast into copyright infringement, ya, you might have an issue with the courts.
It's simply not a copyright case. If there is a law on the books that says that cops can't use sneaky methods of avoiding accountability, then that's a court case. The public is harmed, not the owner of the content.
Better yet, the cop should just be fired for doing something that is clearly against the public's interest, making the department look bad.
But this is not a copyright case.
Don't pretend. Don't make up funny narratives, because you think that a police officer "deserves" it.
This silly hypothetical just isn't going to happen. And people are lying to themselves that something like that would happen, because it sounds cool.
The law is not a piece of code that is run through your computer, and if you can find some technicality, or "well actuuuaaallly" argument, then it means that someone is going to go to jail.
Instead, the law is interpreted by normal, human beings.
And any actual normal human being, is not going to fine someone, or send someone to jail because they played a couple seconds of a song, in a public street, on their phone.
The technicalities, and debates, and loopholes that you think that you found in the law simply do not matter.
----
Absolutely nobody, in the entire world, would ever have a recording of police brutality taken off of youtube because the police played a couple seconds of music, on their phone, while walking down the street.
Don't pretend. Don't make up funny narratives, because you think that the recorder "deserves" it.
This silly hypothetical just isn't going to happen. And people are lying to themselves that something like that would happen, because it sounds cool.
The youtube moderation is not a piece of code that is run through your computer, and if you can find some technicality, or "well actuuuaaallly" argument, then it means that someone is going to go get their video removed.
Instead, the law is interpreted by normal, human beings.
And any actual normal human being, is not going to remove a video that is attempting to keep the police accountable because they played a couple seconds of a song, in a public street, on their phone.
The technicalities, and debates, and loopholes that you think that you found in the youtube algorithm simply do not matter.
----
Obviously the above does not describe reality. The police seem to get to take advantage of the system to hide their misdeed, but as you (probably correctly) point out, citizens are NOT able to take advantage of the system to expose police misdeeds. This is why people are angry, and this is why you were downvoted.
No one is saying this. You are leaving out a lot of crucial details that have been brought up.
Call it whatever you want, I am talking about any form of major copyright consequence on that person, because they played a couple seconds of a song, in the street.
Its just not going to happen. No judge will ever cause any significant consequence on someone doing that, solely as a result of a copyright issue.
Generally, yes:
https://www.law.cornell.edu/uscode/text/17/106
---begin quote---
17 U.S. Code § 106 - Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
---end quote---
There are some exceptions to this regarding specific permitted performances at 17 USC § 110 as well as the general exception to copyright in fair use at 17 USC § 107, but I don’t see an obvious argument that these or any other copyright exceptions apply to this use for this purpose. (I can see an argument that the police use would render the recording and reuse by the person recording the officer fair use, but that's not an issue here, because we already know that copyright protection schemes by platforms are hostile to fair use.)
Copyright law has a lot of subtlety and courts have to make reasonable decisions. Considering this a violation is not in any way a reasonable decision. Taylor Swift and her record company are not harmed.
Others probably are harmed (the public), but that isn't a copyright thing.
Because purpose is an element of Fair Use analysis, and because fair use is an exception to copyright, and because the purpose differs radically between the two cases, there are a whole lot of other assumptions you need to make for this “if...then...” statement to hold.
I believe this is the case, yes.
It would indeed be so, if you were playing it with the express intent of having others listen to it.
Also, never underestimate the eagerness of the entertainment industry to decide that you need license to play something.
You can't really claim an intent to suppress and an intent to play for an audience at the same time.
Regardless, you simply don't know anything about IP law if you think this to be the case. There needs to be a harmed party, and that needs to be the copyright owner.
The copyright holder is harmed in the eyes of the law by the violation of their exclusive rights. You said in other comments they have to show it affected the market for the original work. But that's just 1 element of fair use. And fair use just means the harm to the copyright holder was justified.
Regardless, do you know anything about copyright law and how it actually works in court? I do. Anyone who does knows how absurd this is.
"The copyright holder is harmed in the eyes of the law by the violation of their exclusive rights."
They are not harmed financially unless it cuts into their sales because people are substituting this for listening to a purchased or otherwise monetized version.
https://www.copyright.gov/fair-use/more-info.html
"Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread."
Seriously, you should ask an attorney who works in the field. The copyright owner is really not a party to this case, they'd have a huge uphill battle trying to even get a court to take such a case, and if they did, they'd lose. And why would they bother? They don't have a dog in this race, as they say.
What you quoted just establishes market effect is an element of fair use again. It doesn't establish market effect overrides the other elements. The source also says "In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry."
I've consulted attorneys about fair use before. And I've read cases where courts ruled for the plaintiffs despite negligible market effect if any.
There could be relevant case law I don't know of course. But you would have cited it if you knew it already.
I doubt the copyright holder will sue. But that's a different question. And it isn't hard to imagine an artist not wanting their songs associated with police misconduct. Actually it isn't hard to imagine them being concerned about people not wanting to listen to their songs if it became widespread.
"The repair firm, Kwik-Fit, has a pretty weak response, saying that it's banned personal radios for ten years. Instead, it should be fighting back on the idea that this is a public performance in any way. Otherwise, you get into all sorts of trouble. If you have the windows open in your home and are listening to your legally owned music (or your TV!) and your neighbor can hear it, is that a public performance? What if you live in an apartment building with thin walls? What about when you're driving with the radio on and the windows open? What if you're in your cubicle and the folks in the cubicles around you can hear the music? At which point do we realize how silly this becomes? It's difficult to see how, with a straight face, anyone in the music industry can claim that any of these situations represents harm done to them."
Their hypotheticals don't fit this case. And some of them are settled questions in the US. Courts consider intent all the time. Fair use factors include purpose and character. 17 USC 110 has an exception for receiving broadcasts. Columbia Pictures v. Professional Real Estate said hotel rooms are private. Apartments are at least as private. And driving means not staying in the same place for long usually.
It wasn't a few seconds. The recording shows the officer played over 2 minutes of the song. It ends with the song still playing.
Kwik-Fit settled out of court apparently.[2]
[1] https://www.techdirt.com/articles/20071005/094552.shtml
[2] https://www.mirror.co.uk/news/world-news/be-kwik-its-time-fo...
If I hope to hit the bullseye with my dart, but miss, it doesn't change my intention. Neither does a low likelyhood of success.
Seriously concerned. Not that I want to defend the cop (o haven’t watched the video), but I feel that if we start enforcing these restrictions we are going to get ourselves into a rabbit hole of no fun.
It probably wouldn't have passed judgment, but it was enough to scare the shop into forbidding its employees to play music at work.
Nobody is going to be charged for playing a song on their phone in public.
That's just not going to happen.
Edit: Wow, it really is considered unlawful. I reflexively hate the idea that playing a song can be considered violating copyright. Yes, I know there's more to it than just that, but wow.
Generally speaking, "public performance" means outside a small social group consisting of friends and/or family.
Someone working on the job, like a taxi, driving a truck, or even in the office, listening to music is not going to be in violation - unless the music were played as part of entertainment for customers/patrons.
The cop will unlikely be found to be in violation.
The person filming in uploading, that production would probably be in violation under the 'Transmission Clause'.
Taxi drivers do have to pay license fees in some countries.
> or even in the office
According to the RIAA, you need to license music in order to play it in the office.
That being said, I would say they're probably right, because it doesn't seem that different from a store or restaurant playing music.
Even to the extent workplace semi-public (for coworkers, not primarily for public customers) entertainment use might be fair use [0], use by a state officer for the purpose of leveraging known provider policies to inhibit First Amendment protected public monitoring and distribution of recordings of police activity would seem unlikely to be viewed by a court as fair use (whose statutory definition was crafted to follow the parameters of a judicially-articulated restriction on copyright that itself was viewed aa necessary to conform copyright to the First Amendment.)
[0] a quite controversial position itself.