legal aspect of internet radio
 

Hello,
I'm thinking of creating an online radio program that would showcase
music by independent, self-produced musicians; but I have a couple of
legal questions I'd like to ask:

- How to protect myself against the possibility of someone sending me
copyrighted music, not belonging to them, but pretending it does? It
is obviously impossible to check that such or such song was not
actually recorded or written by someone else...

- Is there a standard contract enabling an artist to allow a
broadcaster to use their music free of charge (knowing in this case
that the artist, through the promotion, is very much the beneficary,
and knowing that the program itself is non-profit making)?


thank you

Guillaume.

On 4 May 2004 16:48:49 GMT, (G) wrote:

- How to protect myself against the possibility of someone sending me
copyrighted music, not belonging to them, but pretending it does? It
is obviously impossible to check that such or such song was not
actually recorded or written by someone else...

Err.. Guaranteeing that so that you don't have to pay fees will be an
interesting task. But then that's why Insurance gets sold. Getting covered
for this type of liability might be a problem, of course. Are you prepared to
lose your house and car if someone sues?

- Is there a standard contract enabling an artist to allow a
broadcaster to use their music free of charge (knowing in this case
that the artist, through the promotion, is very much the beneficary,
and knowing that the program itself is non-profit making)?

If someone lifted someone else's music, a contract with the artist wouldn't
protect you. And how much bandwidth are you preparing to buy? a T1 will
support about 30 50kbps streams. Actually less since there is other overhead
involved. They go for between $500 and $1800 a month, depending on which ISP
and phone company you have and how far you are from the CO. Or you could go
for a t3 (about 3 T1s) for about 90-100 streams that wide. Or if you want
something a tad better sounding, cut those figures significantly.

ASCAP and BMI might still come after you looking for infringements. I cut a
CD for a trombone quintet at a college north of Charlotte. They were going to
use the recording as a fund raiser. It was all Black Spirituals, arranged for
that group. Guess what they found after the fact. One of the pieces that
they thought was public domain wasn't... They ended up paying rights after the
fact big time.

Bill Blomgren wrote in
:



Err.. Guaranteeing that so that you don't have to pay fees will be an
interesting task. But then that's why Insurance gets sold. Getting
covered for this type of liability might be a problem, of course. Are
you prepared to lose your house and car if someone sues?


Sometime when you're fooling around looking at the copyrights on music, go
look up "Happy Birthday", sung illegally at every kid's birthday party.

"Happy Birthday" is copyrighted by AOL/Time-Warner. If that isn't
hypocracy, nothing is....(c;

Bill Blomgren wrote in message ...
On 4 May 2004 16:48:49 GMT, (G) wrote:

- How to protect myself against the possibility of someone sending me
copyrighted music, not belonging to them, but pretending it does? It
is obviously impossible to check that such or such song was not
actually recorded or written by someone else...

Err.. Guaranteeing that so that you don't have to pay fees will be an
interesting task. But then that's why Insurance gets sold. Getting covered
for this type of liability might be a problem, of course. Are you prepared to
lose your house and car if someone sues?

My, my. Sounds like a big risk for a non-profit, cultural
project. Although, not living in the States, I might be partially
spared from this type of danger (?)



If someone lifted someone else's music, a contract with the artist
wouldn't
protect you. And how much bandwidth are you preparing to buy? a T1 will
support about 30 50kbps streams. Actually less since there is other overhead
involved. They go for between $500 and $1800 a month, depending on which ISP
and phone company you have and how far you are from the CO. Or you could go
for a t3 (about 3 T1s) for about 90-100 streams that wide. Or if you want
something a tad better sounding, cut those figures significantly.

Well actually it's not about "streaming". I used the term
"radio" in a broad sense: the idea is to make MP3 files of the program
available on a website which also houses an internet lit mag. Would
that change anything rights and risks?


ASCAP and BMI might still come after you looking for infringements. I cut a
CD for a trombone quintet at a college north of Charlotte. They were going to
use the recording as a fund raiser. It was all Black Spirituals, arranged for
that group. Guess what they found after the fact. One of the pieces that
they thought was public domain wasn't... They ended up paying rights after the
fact big time.

ouch!

Thanks for the info. I'd better think more than twice then.
Guillaume.

not living in the States, I might be partially spared from this type of danger
(?)

Don't bet on it. France has copyright laws too.

On 5 May 2004 23:00:49 GMT, (G) wrote:

My, my. Sounds like a big risk for a non-profit, cultural
project. Although, not living in the States, I might be partially
spared from this type of danger (?)

True.. all depends on local regulations. Copyright varies to some extent from
country to country, but the EU should be reasonably uniform.

Well actually it's not about "streaming". I used the term
"radio" in a broad sense: the idea is to make MP3 files of the program
available on a website which also houses an internet lit mag. Would
that change anything rights and risks?

No.. In the case of the rules here, a download is a stream. Requires
significant logging and all that, so that you can pay the "right" amounts..
but never less than the minimum. ouch

ASCAP and BMI might still come after you looking for infringements. I cut a
CD for a trombone quintet at a college north of Charlotte. They were going to
use the recording as a fund raiser. It was all Black Spirituals, arranged for
that group. Guess what they found after the fact. One of the pieces that
they thought was public domain wasn't... They ended up paying rights after the
fact big time.

ouch!

Thanks for the info. I'd better think more than twice then.
Guillaume.

Amen. That one mistake got patched up rather nicely, but it was a tad
expensive..The recording was for a non-profit group. Had they done it all
before production, it would have been a lot cheaper. (But the licensing folk
have a minimum, which is well into the hundreds.) -- There were penalties for
not pre-paying. Sheesh.

If you cross all your Ts and dot all your I's, you can probably get away with
it. If the content can be edited before placing on the web site, you can
remove anything that you can't prove isn't cleared for public performance.
But if it is presented "LIVE" then you are at the mercy of the licensing folk
and their ability to find a copyright somewhere that you stepped on.

Over here, the Harry Fox agency is always happy to talk to people that are
creating content and making CDs.. (they are the publishing/clearing house for
the music..) -- and of course, after it is produced, Ascap and BMI want to
sink their teeth into it to "protect" the performer...

Bill Blomgren wrote:
On 5 May 2004 23:00:49 GMT, (G) wrote:

My, my. Sounds like a big risk for a non-profit, cultural
project. Although, not living in the States, I might be partially
spared from this type of danger (?)

True.. all depends on local regulations. Copyright varies to some extent from
country to country, but the EU should be reasonably uniform.

One thing I haven't heard mentioned yet is the international treaty whose
name I can't remember that says that a bunch of countries including the US
and several members of the European Union will honor each others' copyrights.

--
JustThe.net Internet & New Media Services, Apple Valley, CA PGP: 0xE3AE35ED
Steven J. Sobol, Geek In Charge / 888.480.4NET (4638) /
Domain Names, $9.95/yr, 24x7 service: http://DomainNames.JustThe.net/
"someone once called me a sofa, but i didn't feel compelled to rush out and buy
slip covers." -adam brower * Hiroshima '45, Chernobyl '86, Windows 98/2000/2003

Larry W4CSC wrote:

If you have Ryan's Steakhouses in your area, note that Ryan's employees
never sing it when they do the birthday greeting to the embarrassed party.
They have their own song....

Most places that embarrass you on your birthday have their own tune.

--
JustThe.net Internet & New Media Services, Apple Valley, CA PGP: 0xE3AE35ED
Steven J. Sobol, Geek In Charge / 888.480.4NET (4638) /
Domain Names, $9.95/yr, 24x7 service: http://DomainNames.JustThe.net/
"someone once called me a sofa, but i didn't feel compelled to rush out and buy
slip covers." -adam brower * Hiroshima '45, Chernobyl '86, Windows 98/2000/2003

There are two conventions...one, which the United States is signatory to, is
the Geneva Copyright convention, and includes most of the rest of the world.
There's another one which I can't quite recall (Pan-American?) and it
occasionally happens that a copyright under one is ignored by entities
controlled by the other.

UNESO apparently adminstrates the Geneva convention (and why this is a
surprise, I can't say) but there's an Acrobat document which goes into some
detail....

http://www.unesco.org/culture/copyri...ng/ucc52ms.pdf

--
-----------------------------------------------------------------------------
If there's nothing that offends you in your community, then you know you're not
living in a free society.
Kim Campbell - ex-Canadian Prime Minister - 2004
-----------------------------------------------------------------------------
For direct replies, take out the contents between the hyphens. -Really!-



"Steven J Sobol" wrote in message
...
Bill Blomgren wrote:
On 5 May 2004 23:00:49 GMT, (G) wrote:

My, my. Sounds like a big risk for a non-profit, cultural
project. Although, not living in the States, I might be partially
spared from this type of danger (?)

True.. all depends on local regulations. Copyright varies to some extent from
country to country, but the EU should be reasonably uniform.

One thing I haven't heard mentioned yet is the international treaty whose
name I can't remember that says that a bunch of countries including the US
and several members of the European Union will honor each others' copyrights.

--
JustThe.net Internet & New Media Services, Apple Valley, CA PGP: 0xE3AE35ED
Steven J. Sobol, Geek In Charge / 888.480.4NET (4638) /
Domain Names, $9.95/yr, 24x7 service: http://DomainNames.JustThe.net/
"someone once called me a sofa, but i didn't feel compelled to rush out and buy
slip covers." -adam brower * Hiroshima '45, Chernobyl '86, Windows 98/2000/2003

Actually, to push the discussion a bit further, I'd like your opinions
about the following "Terms of use" of an MP3-hosting website, that
enables artists to post their own music (I've deleted the name of the
company). Beyond the "legalese", does this provide airtight legal
protection in your view? In which case I would use something like this
for my "radio program"...



X.com Music Terms & Conditions

POSTED AND EFFECTIVE – March 25, 2004

[...]
Submission Requirements

Submitting materials to the Service does not guarantee that we will
include them in our music library or place it on X...com Music. For
this reason, it is important that you become familiar with the
Submission Requirements that we have developed to assist artists
during the submission process.

Your content

By submitting material to the Service, you represent and warrant that:

* X... Networks, our customers and licensees shall not be required
to make any payments with respect to material that you submit to our
sites, including, but not limited to, payments to you, third parties,
music publishers, mechanical rights agents, performance rights
societies, persons who contributed to or appear in your materials,
your licensors, unions or guilds;
* You have full right and power to enter into and perform under
these Terms, and have secured all third-party consents, licenses and
permissions necessary to enter into and perform under these Terms,
* The material that you submit to our sites does not contain
"samples" of any third party's sound recording or musical composition
and will not infringe on any third party's copyright, patent,
trademark, trade secret or other proprietary rights, rights of
publicity or privacy or moral rights;
* The material that you submit is not and will not violate any
law, statute, ordinance or regulation;
* The material that you submit is not and will not be defamatory,
trade libelous, pornographic or obscene, and
* You are at least eighteen years of age. By submitting sound
recordings or musical compositions or other audio and/or audio-visual
content to us, you grant us, our affiliates, and our business partners
a worldwide, royalty-free, nonexclusive license to:
o publicly perform, publicly display, broadcast, encode,
edit, alter, modify, reproduce, transmit, manufacture, distribute and
synchronize with visual images your material, in whole or in part,
alone or in compilation with content provided by third parties,
through any medium now known or hereafter devised for the purpose of
demonstrating, promoting or distributing your material, to users
seeking to download or otherwise acquire it and/or (ii) storing the
work in a remote database accessible by users;
o Make your material accessible as audio streams,
o Use any trademarks, service marks or trade names
incorporated into your material and use the likeness of any individual
whose performance or image is contained in your material.

[...]
Legal Policies and Notices

You hereby agree to indemnify, defend and hold X... Networks, and all
of our officers, directors, owners, agents, information providers,
affiliates and licensors (collectively, the "X...Parties") harmless
from and against any and all liability, losses, costs and expenses
(including attorneys' fees) incurred by any X...Party in connection
with any claim arising out of (1) any use or alleged use of your
account or password by any person, whether or not authorized by you,
(2) any claim arising out of the material that you submit to the
Service, including, but not limited to, claims for defamation,
violation of rights of publicity and/or privacy, copyright
infringement, trademark infringement and any claim or liability
relating to the content, quality, or performance of materials that you
submit to the Service. We reserve the right, at our own expense, to
assume the exclusive defense and control of any matter otherwise
subject to indemnification by you, and in such case, you agree to
cooperate with our defense of such claim.

The listing, or absence of listing, of any document in the Service's
search database does not imply any warranty or guarantee by us, for
any companies, products, or services described in such documents. We
disclaim any and all responsibility or liability for the accuracy,
content, completeness, legality, reliability, or operability or
availability of information or material displayed in the Service's
search results. We disclaim any responsibility for the deletion,
failure to store, mis-delivery, or untimely delivery of any
information or material. We disclaim any responsibility for any harm
resulting from downloading or accessing any information or material on
the World Wide Web or Internet using search results from the Service.

WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR
ERROR-FREE. IN ADDITION, WE DO NOT MAKE ANY WARRANTY AS TO THE RESULTS
TO BE OBTAINED FROM USE OF THE SERVICE OR THE CONTENT. THE SERVICE AND
THE CONTENT ARE DISTRIBUTED ON AN "AS IS, AS AVAILABLE" BASIS. ANY
MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS DONE
AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY POTENTIAL DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. WE DO NOT MAKE ANY
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE SERVICE, ANY CONTENT OR ANY PRODUCTS OR SERVICES SOLD THROUGH THE
SERVICE. YOU EXPRESSLY AGREE THAT YOU WILL ASSUME THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE ACCURACY OR
COMPLETENESS OF ITS CONTENT.

WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE
THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.

WE RESERVE THE RIGHT TO TERMINATE THE SERVICE AT ANY TIME WITHOUT
NOTICE.

Any controversy or claim arising out of or relating to these Terms or
our sites will be settled by binding arbitration in accordance with
the commercial arbitration rules of the American Arbitration
Association. Any such controversy or claim shall be arbitrated on an
individual basis, and shall not be consolidated in any arbitration
with any claim or controversy of any other party. The arbitration
shall be conducted in X... and judgment on the arbitration award may
be entered in any court having jurisdiction thereof. Either you or we
may seek any interim or preliminary relief from a court of competent
jurisdiction in X... necessary to protect the rights or property of
you or X... Networks, Inc. (or its agents, suppliers, and
subcontractors) pending the completion of arbitration.
[...]