Public performance of a copyrighted work. Unless the officer has a license to play the music for public consumption, it is illegal for him/her to do so.
Oh as I mentioned in a different comment I think this should be illegal and might already be illegal - but pulling some rando law out of the aether to force the charge isn't a great tactic.
Edit: Just to clarify, one of the other reasons I'm skeptical of using copyright law for this is because the intent doesn't match what the officer's intent would be allowing for officers to have a pretty good chance of avoiding any repercussions and because the penalties of sentencing are inappropriate. There are existing legal recourses in most instances for restricting the ability for civilians to record police incidents - if an officer is abusing copyright law to accomplish this silencing then they are likely running afoul of those laws and should be sentenced with breaking those laws since the penalties are more appropriate.
1. I'm going to guess it has happened sometime because racism, but it really shouldn't be. And thankfully a quick googling didn't turn up a litany of results.
No more or less terrible than automatically removing the video of the officer is. It's the same law! If it's unethical to prevent an officer from playing music it's equally unethical to exploit someone else's enforcement of that law for reasons that have nothing to do with playing music.
Public performance isn't really some random law pulled out of the aether. It's one of the basic tenets of copyright and serves as the basis for the majority of copyright licensing in the U.S. Even the take-down process that the officer is looking to exploit exists because of the the rights holder's right to public performance (an Instagram video is a public performance).
That it is illegal (criminal) to willfully perform a copyrighted work in public is well established law and not the least bit random.
The point being that no rights holder, in their right mind would prospect someone for this, in the same way that they don't go after people walking around with boomboxes.
There might be a crazy example if this happening once. But mostly nobody gets prosecuted for walking around playing music on their phone.
As in, maybe there has been 1 or 2 times, in history, where a court has ever punished anyone, for merely walking around, playing music on their phone, if it has ever happened at all.
> there are plenty of bands that would be happy
And the band would waste a lot of money and lose in court doing that.
I am truly curious as to how far you actually think this goes. As in, do you truly believe, that, to give a more extreme example, if someone was walking around, and had headsets in, and was listen to music but someone walking next to them could hear it, that any court ever would call this a public performance?
I mean someone can hear it right? That makes it a public performance? No. That is ridiculous. This would never happen.
Because that is only a slightly more extreme situation.
Copywrite law would be completely meaningless, if you are willing to bit the bullet on these kinds of extreme hypotheticals.
In your headphone example, I'd say it's pretty clear that this would not be a public performance. Let's approach the problem from the other direction. If you have a store and play music over speakers in the store then this does count and stores pay licensing fees for this. What about if an employee regularly plays music with a bluetooth speaker while they're working at the cash register? This is a representative of the company playing music where customers can hear it so you could argue it still counts. What if they don't use the speaker and play the music directly over their phone's speakers? Does the quality of the speakers matter? What if instead of a store it's a government employee working somewhere like the DMV? Is the government exempt from copyright laws? What's the difference between the DMV employee and a cop? They both work for the government, doing a job where they interact with the public, and are playing music over speakers where the public around them can hear it.
At what point in that series does it stop being a public performance? Where exactly does the law draw the line? Is there even a clear line in established case law? Does that precedent vary depending on your location in the US? I would be surprised if there is relevant precedent for this example. There wouldn't normally be any incentive for anyone in the music industry to claim this type of scenario is a public performance. However, I think that changes when the police start doing this to as a way to avoid criticism.
I mean, if I were a business open to the public, playing music without paying the fees, I'd get in trouble. Here we have police business, open to the public, playing music, pressumably without paying the fees. Especially, if the officer is doing it when they know a recording is being made, that's an intentional act of public performance, or facilitating copying or somesuch prohibited conduct with copyrighted materials.
Also, depending on the volume, could be violating a noise ordinance.
> But every now and then, a business makes the decision to ignore the legal rights of the music creators that help them make money. We only pursue lawsuits as a last resort after multiple attempts to negotiate with the licensee in question.
https://www.ascap.com/help/ascap-licensing/why-ascap-license...
If the officer is playing the music incidentally as they go about their day, would that be fair use?
I wonder if a de-music service would be feasible so that the copyrighted audio within a video would be detected and suppressed without suppressing the video and other noises.
Obviously, it's not.
Maybe uploading a video containing such music is.
If you are playing music to yourself, and someone films you - you are not infringing - the person filming and uploading is - possibly, though that's more questionable.
That cases are not pursed is incidental.
I imagine it's hard to build a case against the guy blasting his car radio without a recording, and the affected people aren't particularly unhappy with it.
If copyright was more like trademarks, and they had to protect it to keep it, you'd see more cases of people playing their music too loud.
We'll see the same happen with streaming services as smart TVs get popular. You'll have to pay per viewer as licenses change
If there is some random person filming you - then they are infringing - not you.
- Section 101 of the 1976 Copyright Act
Anyone playing the music to themselves is not playing it where 'a substantial number of persons' can hear it, nor are they projecting in such a manner.
If this were the case, then anyone playing music, anywhere would be in violation, which is obviously ridiculous and no, it's not about some odd technicality of the law.
It is straight up, 100% legal to play music to yourself.
Given that there are millions of instances of people doing this every day, and zero cases of infringement in these scenarios, it would seem both the letter of the law, and case history quite handily demonstrate how crazy the claim is.
HN threads descend into a weird distortion field when dealing with hot-button issues such as DRM, policing, NIMBYism, blockchain, privacy etc.
-> Someone playing music to themselves (and not filming themselves and putting said video in public) is not infringing on anything.
-> Someone filming someone else else playing music, may be infringing by virtue of the fact they are posting the content 'in public'.
I don't think it's a matter of 'a difficult case to make' against a person being filed while listening to music to themselves, there is no case.
The videographer, yes.
Twitch / Youtubers know this as they cannot stream DRM'd music in their streams, but of course, they are directly making said music public, in which case it's a legal problem.
Playing music to yourself, your friends etc. is 100% legal in all cases.
The cop doesn't need to make any arguments whatsoever about who it's being played for.
The person doing the filming and distributing is the person infringing.
It's completely obvious, there is no ambiguity.
The only approach, however hairbrained and ridiculous - would be for the IP owner to go after both the content video/distributor - and then somehow also rope the cop in as though they were somehow 'part of the preformative act' of making the video. But that's beyond a stretch.
In reality there are no hairs to split. If there is infringement, it's the person making the video.
The license to share tends not to be transitive.
They might be doing this improperly for now, but it's not hard to fix.
The exclusive license could be found unconstitutional though?
[1] IANAL, etc, etc.
If you’re just turning up a broadcast radio station, I don’t think that is public performance.
Now that I think about it, if we could get ASCAP to go after the kids with their rattling cars... Hmmm!
Now on one hand, every day people will find this absurd. However, I am pretty sure it is not a defense that it’s not enforced evenly in all circumstances. A lot of people go 5mph over the speed limit without consequences; means nothing if you’re in court for it.
However, if you are acting in bad faith, you can expect people to become more creative with their use of the law against you. The police do this all the time.
And I really, really don’t think we need to argue that the police officer here just really wanted to share his taste in music while being uncooperative and has no idea what’s going on.
P.S.: IANAL.
I do know lots of small businesses (pop-ups) use streamed media -so do company picnics and so on. It’s a thing. Officially I’m sure ASCAP frowns on this. On the other hand it’s a fruitless pursuit.
However, it might possibly become a different story in this case. Here is a pretty objectionable use of copyrighted music on a small scale. It makes copyright holders look bad because the system they lobbied for could now possibly be used to help corrupt or abusive police officers escape accountability and censor opposition. Ordinarily, a copyright holder taking action against a small scale case like this would seem like a David and Goliath situation, but in this case the “little guy” is not the person playing the music.
Acting in bad faith is, of course, one thing, when you are an individual and you are acting against a large conglomerate. It doesn’t justify the action, but the optics of enforcement are not great. Just remember issues like Mike Rowe Soft for example. (P.S.: https://www.eff.org/deeplinks/2013/11/trademark-law-does-not...)
This case is more complicated because the perceived wrong is not exactly the use of copyrighted music but how copyright systems are being used against a citizen exercising their rights.
It remains to be seen what happens, but if this sort of behavior continues I can at least bet on musicians not being very happy to hear when their music is used for this purpose.
It's ridiculously obvious, otherwise, literally anything with a speaker would practically be banned.
The person making a video with the music as part of the content, may be technically subjected to DRM, or rather, when they upload it they will be.