Pub Mode.. Legalities?

Well, as you may or may not have seen or read, amaroK has had a bit of speculation over the "Pub Mode" which would be a good way to use amaroK in pubs/clubs.

Well,i had spoken to a Bar manager in my local area after i made a sort of "beta" of a jukebox/ pub audio Live CD. He said the idea was very good, which got me thinking even more, and that related to wether or not there should be some form of music purchase system related into it, so that the process becomes more "legally" grounded.

The idea originally was to have a built-in compatibility for a well-Known KDE P2P application, but the project could be seen as "illegally" grounded, then it'd be better to have some form of payment scheme.

So, the idea is that;
The user has an "ArtistDirect" or "WMP-Music" account, which they can specify to the application where the purchases of songs legally are made.
When a user picks a song from the list, an automated API for the website picks the song and/or the video from the site, purchases it, downloads it to the "media" directory of the project, then it gets queued in amaroK and played.

Now, the problem would be that, most songs on these services are only $0.70-$0.90.. Which is around 54 Pence GBP.. Now, the real problem is that over here, songs cost about 60-80p per song in big clubs.. which means after the inital purchase..

We're talking nearly $1 a song profit.. 20 songs is usually the standard for certain clubs (i know from talking to a Bar Manager at a local bar) so.. if all those songs are pre-purchased -- that's nearly $20 profit an hour, which could, as oggy said -- lead to record companies catching on to the process.

Now, it's not illegal i dont think because the actual songs being downloaded to the computer have not been copied, but are being listened to. but, 'm not sure if this is fully legal or not, so any help would be appreciated.

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pretend you're a pub and call someone who sells/supplies jukeboxes and ask them about publishing royalties..

#1 Anonymous on 2005-09-14 15:09 (Reply)

My understanding is that there are separate licenses for playing music in venues. I doubt the current crop of online music stores support buying music that will be played in a venue. But it's worth investigating. Also I may be totally wrong, so even more reason to look into it!

#2 mxcl on 2005-09-15 03:14 (Reply)

mxcl is exactly right, legally purchasing music does not give you the right to play the music in a commercial setting (officially called a performance). Unless you work out a specific contract with the composer of the work (i.e., you can't get permission from Madonna for her songs, because she didn't write them), these rights are handled by performing rights organizations. In the U.S., the two primary ones are ASCAP and BMI.

In this situation, you pay a fee to these people and you have unlimited access to play any of their songs, then ASCAP is in charge of distributing those fees to its members.

Having said that, a bar, restaurant, anything that plays music should already have its own license with ASCAP/BMI. If they so much use a jukebox or sing happy birthday to their customers, they need a performance license from ASCAP. (Yep, "Happy Birthday" is copyrighted!)

In response to Carl0ski, (keeping in mind that I'm only familar with U.S. law) you can purchase a CD from your local Best Buy or wherever and play it in a public place. The CD has that warning becaue the right to do so is not included with the purchase of the CD itself. So long as you pay your fee to ASCAP, you can play it regardless of where you purchased it. (I don't know if the DMCA has anything to say about performance rights, but I doubt it does.)

The fees, at least in the U.S., are not that onerous. ASCAP and BMI are quite clearly illegal under the antitrust laws, but since having such organizations creates obvious and huge efficiencies (would you want to track down every composer before you could play their music?) the government allows them to exist. However, they operate under a consent decree, which means that, somewhat like a public utility, the federal courts are the ultimate arbitrators, should it come to that, on what rates should be.

As a consequence, fees are more or less based on revenue. Big radio stations pay more in fees than small ones. Clubs pay more than restaurants because music is more important to clubs than restaurants. And so on. Point being, it is affordable. Certainly, most places abide by the law and purchase the performance rights.

Oh, one last thing. There are services, most notably Muzak, which make special arrangements with ASCAP, so that you can purchase music from Muzak, and the performance rights are included automatically.

#2.1 mlmitton (Homepage) on 2005-09-15 17:21 (Reply)

Reading the label of a Pressed music CD it states that it is not to played in public broadcast including pubs.

In australia a few years ago there were suits against stores for playing CD's in their stores. Now only Music stores are aloud to play public purchased CD's.

To broadcast music in your store you need a broadcast license just like the royalties a radio station pays to play most music.

Its an expensive licence so i don't see pubs paying for it.

Shortly after there was a lawsuit bought against store owners association over playing radio stations in their store , but that one failed.

However if everytime the song is played on the jukebox it is bought from say itunes then it will be winnable (RIAA will still prosecute either way) in court as really only one person chose the song for personal listening while at the venue.

But if you pay to listen to a song bought from itunes stored in the club jukebox,
2 conditions are broken
itunes songs are not for resale,
itunes songs not to be publically broadcast.

End note there isnt a sales structure in the current music industry for this kind of system but there should be.

33cents per song downloaded to the jukebox to be played once.
consumer pays $1 to chose their song to play.
67cents profit

#3 Carl0ski on 2005-09-15 07:55 (Reply)

Well, tbh, i know of certain agencies.. after all Madonna, etc are not their own record producers i wouldn't imagine.. Anyways, i PRESUME that like the MPAA, you'd be able to strike some kind of deal to be able to play music in a public venue, although i'm uncertain.

anyway, thanks for your comments!

#4 Jessica on 2005-09-16 09:43 (Reply)

It's actually not record producers that matter here. There is absolutely no one at Sony or BMG or whatever that holds the performance rights. They reside entirely with with the composer of the song. Obviously, a composer could transfer their performance rights, and they do, but not to the labels. They transfer them to ASCAP, BMI, and SESAC by which I mean, a composer signs up with one of those organizations only. So realistically, if you want to play "anything" you need a license from both ASCAP and BMI (SESAC is small). There's really no choice other than contacting these organizations, or the composers themselves.

I've thought more about this, and I think it could potentially be a great idea, and is economically/legally feasible. The biggest question is whether music purchased from iTunes is specifically prohibted from being used for commerical purposes. It could be, but I doubt it. The DMCA is a crazy thing, but that copyrights (stress on the word "copy") are completely severed from performance rights is well-grounded. So I doubt iTunes can tell you how you perform the music. (Isn't this why you can stream other people's music?)

So I think purchasing performance rights is sufficient to be able to use anything you purchase from iTunes in a "jukebox". I looked into this, and there's actually a joint entity run by ASCAP, BMI, and SESAC that specifically deals with a jukebox license. One fee to this entity, and you're covered for all three. Whether the setup you're looking at would be eligible for such a license isn't clear, but it's certainly possible.

BTW, IANAL, I'm an economist who does support for lawyers, and I've done a lot of work for ASCAP over the years.

#4.1 mlmitton (Homepage) on 2005-09-16 19:42 (Reply)

Well,, if you could get more information about the jukebox liscence it would be much appreciated!

#5 Jessica on 2005-09-18 15:21 (Reply)

Here's a general ASCAP page which has lots of information (relevant to licencees) on what ASCAP is and how it works:

http://www.ascap.com/licensing/

Here's a link to info that's more specific to licensing in bars/restaurants/etc.

http://www.ascap.com/licensing/generallicensing.html

And specific comments on the jukebox license are lower down in this faq:

http://www.ascap.com/licensing/generalfaq.html

You'll see that they won't actually tell you how much these licenses cost. Not sure why. But you'll find the necessary contact information to reach someone who would be happy to tell you, as well as answer questions about legal requirements. As a general rule, they're friendly and helpful.

All this info is ASCAP, but BMI is basically the same. So whatever ASCAP says about these issues will basically be what BMI says as well.

Also, since you're saying "pub-mode", I'm guessing you're not 'Merican. Canada and Britian, I know, follow the same basic rules as ASCAP/BMI. I don't remember the names of the organzations in any other countries, but they all work very closely with each other, since obviously Candian (or whatever) musicians are played quite often in the U.S. and vice-versa.

Jessica, email me if you want any further input from me. I still think this is a good idea.

NabLa, I really don't know how Last.FM works or how it fits in to the licensing scheme. As for regular radio (and T.V.) up until a few years ago, you would need a license to play 105.3 in your restaurant or pub. However, they changed this a couple of years ago, and a pub owner is no longer required to purchase a license if all they do is play over-the-air radio, or standard television stations.

#5.1 mlmitton (Homepage) on 2005-09-21 05:02 (Reply)

Maybe if the pub owner has a license for using radio... they could use Last.FM radio for this. I think it would be really really cool to have Last.FM radio support in amaroK, since the reference player is not specially stable, and a bit limited in functions (it's nice tho).

#6 NabLa on 2005-09-20 10:52 (Reply)

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