Randy Picker has an interesting post on potential RIAA legal action against YouTube for posting videos containing copyrighted music:
The 1909 Copyright Act assigned a number of rights to copyright holders. These included the right to print and make copies of the work; to perform the work publicly if the work was a drama; and, for musical compositions, to perform the work “publicly for profit.” Be clear on what this means. Same piece of paper–sheet music–but different rights depending on use. I could buy sheet music and take it home and sing to my heart’s content, but I could not take it to my restaurant and do so without violating copyright if that counted as a public performance of the music for profit. Was it? Yes, indeed, said the Supreme Court in 1917, in Herbert v. Shanley Co., in a unanimous opinion authored by Justice Holmes. Eight years later, a federal appellate court reached the same conclusion for the new mass medium of that day, radio broadcasting. These are not laws of nature. We could have a rule that said that anyone buying sheet music can use it in any fashion possible, at home or in a restaurant, on the radio or streamed from YouTube. Our original copyright law–enacted in 1790–didn’t say anything about music at all. This is a choice, a choice that some uses are different from others and that copyright holders can appropriately charge different prices for different uses.
The question, I think, is whether the entity “publicly performing” the song is YouTube or the person who uploaded the content. I don’t know the caselaw, but it seems plausible to argue that YouTube is simply a common carrier like my ISP. And it seems like if a kid makes a video of herself singing her favorite Britney Spears song, that wouldn’t be public performance “for profit.”
In any event, Picker’s broader point is right: there’s no law of nature concerning what the precise rules ought to be. If the courts don’t come up with a reasonable solution, Congress can and should step in to clarify the rules.
If Congress does step in, I hope they’ll do so in a way that makes gems like 10 Things I Hate About Commandments possible. Collecting ASCAP royalties every time somebody watches the video probably isn’t economically feasible. And as Picker points out, it’s a great video.
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