Using BitTorrent to DL authorized audio recordings legal?

[RKelly]

This may be a silly question and nobody would probably ever go after me but i've got to ask. Using BitTorrent to DL live music from bands that allow audio recordings of their shows, is this considered an illegal act? Since BitTorrent requires a large amount of uploading I was curious if this was considered a taboo along the lines of DL officially released recordings. I remember the days of trading shows on tape or cd via the mail nobody seemed to have a problem with it, and this just makes it tons easier. Any thoughts?

[waheed]

I remember there was a discussion similar to this a while back regarding recordings of live shows.

Cannot exactly recall what the outcome was, but i guess if its copyright protected, then its most probably illegal.

[adam]

If the copyright holder, who actually owns the rights to authorize live performances and/or recordings, makes a public dedication (says publicly that its ok to distribute) then it is legal. But the band performing the song doesn't necessarily still own this right, as many sign it away to the studio in their contracts. There are a bunch of exclusive rights provided for under a copyright, and you can assign them away individually, so its often tough to tell where the copyright holder really stands. Lots of artists say things like they don't care if people download their songs....but the studio may care and they may take legal action against you.

[RKelly]

Interesting. I don't see how really from a copyright standpoint it could create a problem. If the band allows you to record their live performances, undoubtedly fans are going to trade the shows. People have been doing that since the Grateful Dead. My question stems from the actual method of obtaining the recording. For years fans have swapped (usually via your friendly USPS) live recordings. The big deal back then was to make sure one was not accepting money for copies of live shows, then you would be profiting off the band. BitTorrent allows you to obtain copies of shows (again, which the band authorized fan recordings) but at the same time you upload to other users. Is the simple act of uploading files considered illegal? I wouldn't think so but I'd be interested to hear other thoughts.

[adam]

It doesn't matter whether you use the internet or the postal service, and it doesn't matter whether you trade, give them away, or charge an arm and a leg for them. Simply put, if the copyright holder has authorized the distribution than its ok, and if they have not then it is a copyright infringement.

Bands of course gain copyright in their songs when they write them, and this includes all of the associated exclusive rights such as the right to make live performances, to record those performances, and to distribute such recordings. But very often they assign these rights to the recording studio when they enter into a contract with them. The bands might not care if these recordings are traded, but the studio might.

If the band assigned away their rights to their live performances, then they have no more authority to let their fans record them than you or I do.

[smearbrick1]

It doesn't matter whether you use the internet or the postal service, and it doesn't matter whether you trade, give them away, or charge an arm and a leg for them. Simply put, if the copyright holder has authorized the distribution than its ok, and if they have not then it is a copyright infringement.

Bands of course gain copyright in their songs when they write them, and this includes all of the associated exclusive rights such as the right to make live performances, to record those performances, and to distribute such recordings. But very often they assign these rights to the recording studio when they enter into a contract with them. The bands might not care if these recordings are traded, but the studio might.

If the band assigned away their rights to their live performances, then they have no more authority to let their fans record them than you or I do.

I apologize if I sound completely stupid, but this doesn't make sense. How can a copyright holder own the rights to a live performance? If that were the case, anyone in a tribute band or cover band would be infringing on copywritten material.

[adam]

If that were the case, anyone in a tribute band or cover band would be infringing on copywritten material.

Yes they are infringing, unless they request the right to perform those songs and pay royalties if required. Small time bands don't do this and there's really no incentive for the copyright holder to stop them, but yes it is an infringement. If a large band, like Metallica for instance, decides to cover another band's song then they have to get permission first and will almost certainly have to pay royalties unless the cover constitutes a parody.

Here are a few of the major cases on this issue:

"Copyright Act gives exclusive right to perform copyrighted musical composition in public for profit." Gibbs v Buck (1939) 307 US 66, 83 L Ed 1111, 59 S Ct 725, 41 USPQ 162.

"Right of public performance for profit assured to proprietor of copyrighted musical composition includes (1) right to perform composition by himself and with no license to others, (2) right to license performance by one and deny privilege to others, (3) right to fix prices and terms on which license is granted, (4) right to limit public performance for profit to certain places, and (5) right utterly to forbid public performance for profit; proprietor may exercise one right and forbear to exercise others." Remick Music Corp. v Interstate Hotel Co. (1944, DC Neb) 58 F Supp 523, 63 USPQ 327.

"Since owner of copyright in musical work has exclusive right to perform copyrighted work publicly under 17 USCS § 106(4), it is violation of copyright in musical composition to perform that work publicly without license." Music City Music v Delta Radio, Inc. (2003, ND Miss) 66 USPQ2d 1367.

"To "perform" a work, under the definition in section 101, includes ... singing or playing music." 17 USCS § 106

[adam]

edit: double post.

[themichael]

So far nobody trading in live recording (when the band says OK) has been sued. Several lawyers have mentioned these bands and say its ok to trade them. (take that with a grain of salt) Although if you trade the studio versions......

There is copyrights on preformance (live and recorded), the lyrics, the music, mechanical reproduction (CD/tape/vinyl), synchronise (pictures/video/dance to music), and there maybe a couple of others I forgot about. The discussion was 5 years ago with a producer and some bands just starting out.

Want to tape and make a video of your 3rd grader's first play and put it on DVD?

You need written permission from:

the author(s) if play is still in copyright
the author(s) of any music used (performance and sync copyright)
the band members (live preformance copyright)
the band director (see above)
the stage crew (maybe - if sets are original art)
the other kids' parents/agents (preformance copyright and model release if you use any pictures taken for your extras)
and mechanical reproduction copyright from all the above when you burn the DVD.

This was in an article a couple years back. A school got sued for offering to tape the show for parents to help prevent distracting the kids and prevent a "video pit" from forming. THey were charging a small fee to use as fund raising.....

If you're in the woods and sing a song, can you still be sued?

ASCAP sued the Brownies and Girl Scouts over campfire songs, hundreds of thousands of dollars just to blanket liscense the songs each year!! not counting back pay. They pulled out after this went public.

Just rambling...