CNN reports that “A coalition of top musicians, including R.E.M. and Pearl Jam, want to know if their music was used by the U.S. military as part of controversial interrogation methods at the detention facility at Guantanamo Bay, Cuba.” I don’t know whether such information is discoverable using the Freedom of Information Act, but my correspondent (David Cavanagh) and I noticed that there’s talk of possible copyright infringement liability:
It is unclear if any of the artists plan to pursue legal action, but [Kate] Doyle said she’d be “surprised if some of them weren’t thinking about it.”
And I do know something about copyright law, so I thought I’d speak to that. Copyright law gives the owners of copyrights in musical compositions — basically, the lyrics and the tunes — the right to control public performances of the work. (Performances here includes simple playing of CDs and the like.) But it doesn’t give copyright owners the right to control private performances. If the music was played to just one terrorist at a time (or even a few at a time), there’d be no infringement of the public performance right.
If the music was played to the entire prison (which I doubt), that might be a public performance, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” I suspect that the Guantanamo detainees don’t qualify as “a normal circle of a family and its social acquaintances.” Then the question would be whether the military has a blanket license for public performances of this music, for instance via ASCAP and BMI — quite possible, given that the military doubtless performs music in other venues, though one would need to see whether that license covers all uses or only particular ones. But even if the military was infringing the copyrights, through an unlicensed public performance (and I stress again that the likely playing of the music was probably in a private setting), the remedies for federal government infringements of copyrights are limited to actual damages — here, probably a modest licensing fees — or the minimum statutory damages of $750/work; and even that could only be collected for infringements within the past three years. (Of course, there would also be the question whether the infringement took place within the U.S., and is therefore governed by U.S. copyright law in the first place; that returns us to the question of whether Guantanamo is U.S. territory, which the Court answered affirmatively as to habeas corpus, but which I’m sure has never been definitively resolved as to copyright law.)
troll_dc2 says:
Has Congress waived sovereign immunity so as to permit copyright-violation lawsuits against the federal government? Also, the alleged infringement took place in a military setting, and I wonder whether the traditional judicial refusal to tell the military how to function would cause a dismissal of any lawsuit.
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October 23, 2009, 1:52 pmOren says:
:-D
I think the bands (who are already infinitely rich) are more interested in injunctive relief, not damages.
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October 23, 2009, 2:00 pmluagha says:
I believe the military should exhaustively and loudly document the process by which it was determined which music was worst. As in, “They kind of liked Metallica, so we had to stop playing it.. but they hated Eminem and cried like babies whenever we played Kanye. Better than waterboarding.”
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October 23, 2009, 2:06 pmwooga says:
Given the way copyright is set up in the Constitution, couldn’t Congress kill this issue (or future lawsuit) by statute?
Seriously, who is going to vote against a law granting the military permission to play “any song which has ever been played by Casey Kasem” as a form of interrogation?
Can you imagine the campaign ads? “Harry Reid is so soft on terrorists that he’s protecting them from the Macarena!”
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October 23, 2009, 2:16 pmtvk says:
28 USC 1498 waives sovereign immunity for copyright cases against the US. But, as a condition of the waiver, it provides only damages and no injunction, as EV says.
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October 23, 2009, 2:17 pmAutomatic For The Prisoners « Around The Sphere says:
[...] Eugene Volokh: Copyright law gives the owners of copyrights in musical compositions — basically, the lyrics and the tunes — the right to control public performances of the work. (Performances here includes simple playing of CDs and the like.) But it doesn’t give copyright owners the right to control private performances. If the music was played to just one terrorist at a time (or even a few at a time), there’d be no infringement of the public performance right. [...]
drunkdriver says:
If we find out they were subjecting these guys to 10 hours of Nickelback a day, DoJ should reopen its torture inquiry.
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October 23, 2009, 2:21 pmDave N says:
I would think REM’s “Losing My Religion” might be particularly effective — assuming the detainee spoke English.
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October 23, 2009, 2:23 pmKazinski says:
Since no “bad things” would ever happen in an Obama admistration injunctive relief would be moot. I suspect the bands are more interested in burnishing their left wing street cred than anything else.
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October 23, 2009, 2:25 pmRPT says:
Lee Hazelwood and Toby Keith are probably disappointed their songs weren’t used. Painful music is in the ear of the beholder. Some of these songs would be painful to me.
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October 23, 2009, 2:36 pmptt says:
Oh, well if that’s all it was...
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October 23, 2009, 2:49 pmBruce Hayden says:
Thinking of the military playing music, I am reminded of the scene in Apocalypse Now, where the helicopter gunships were playing loud music as they attacked the VC (The Ride Of The Valkyries). I would think that that is a lot closer to a public performance than what went on at GitMo. Now, the music itself might have been in the public domain, but that arrangement and performance? Likely not. (Yes, I know that was a film — but I have seen some evidence that U.S. military have been known to do just what was done here — as late as the Iraqi intervention).
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October 23, 2009, 2:58 pmNunzio says:
According to the CNN story this is part of the CloseGitmoNow movement.
I love REM, but their political protesting is not even-handed. I don’t recall any folk-rock songs about Waco. One should be against the Man whether he’s a Republican or a Democrat.
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October 23, 2009, 2:59 pmRyan Waxx says:
Lawfare.
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October 23, 2009, 3:18 pmzuch says:
Prof. Volokh:
Indeed. The beneficiaries and participants in these “performances” were all there on their own accord, invited guests to a very private club....
Cheers,
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October 23, 2009, 3:22 pmDjDiverDan says:
I bet Ted Nugent would’ve gladly given the Army a license to use his music. But it’s probably not nearly as cruel to the detainees as playing Gangsta Rap, or, worse, “Afternoon Delight” over and over and over . . . .
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October 23, 2009, 3:33 pmDotar Sojat says:
......or continuous Barbra Streisand movies
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October 23, 2009, 3:39 pmSean O'Hara says:
Wasn’t Leonard Peltier arrested during the Clinton administration? I know there was at least one rock song about him.
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October 23, 2009, 3:39 pmgasman says:
Sure, let the recording industry have a percentage of the ‘gate’ at Gitmo.
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October 23, 2009, 3:43 pmPurple Koolaid says:
During the standoff at WACO w/ the branch davidians, they blasted Nancy Sinatra’s “These Boots Were made for walking”.
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October 23, 2009, 4:06 pmBruce Hayden says:
Now, I would think that that would be closer to a public performance than GitMo.
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October 23, 2009, 4:58 pmbgates says:
Wikipedia tells me that Leonard Peltier was convicted in 1977 and sentenced to “two consecutive terms of life imprisonment”, notwithstanding which the government apparently plans to let him out in 2040.
Does that mean that copyright duration is really 101.5 years? (Life of the author + 70 years, but if 1977–2040 = 2 life’s....)
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October 23, 2009, 5:08 pmBart DePalma says:
CIA interrogation sessions in secret detention centers are now public performances?
In any case, one would think that the rock stars would be more upset that the enemy considers the playing of their music to be torture sufficient to drive one insane. My wife would tend to agree when I am playing Metallica or Rammstein.
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October 23, 2009, 5:17 pmSyd Henderson says:
If insanity were the object, they could play them the works of Pink.
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October 23, 2009, 5:45 pmNickM says:
Actually, Mr. Vedder, your work ranked between Kenny G. and Schoenberg in terms of effectiveness.
Nick
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October 23, 2009, 6:05 pmJames Silverglad says:
It’s moral preening and self-importance. The problem is torture itself, not that any particular band’s music was used.
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October 23, 2009, 6:08 pmSuperSkeptic says:
Robbie Robertson’s song “sacrifice” features Peltier, but I was unaware that there were other songs — apparently Rage against the Machine made one but I’ve never heard it.
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October 23, 2009, 7:15 pmTweets that mention The Volokh Conspiracy » Blog Archive » Copyright Infringement in Playing Loud Music to Soften Up Guantanamo Detainees? -- Topsy.com says:
[...] This post was mentioned on Twitter by GraceBarkwell, Garry Wise and Johanna Blakley, Glen Guitar. Glen Guitar said: The Volokh Conspiracy » Blog Archive » Copyright Infringement in ... http://bit.ly/4p2UEf [...]
Oren says:
TVK, thanks for pointing that out.
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October 23, 2009, 8:48 pmA. Zarkov says:
Life imitates art.
In the hilarious 1961 Billy Wilder film, One, Two Three, an East German Communist gets tortured by the repeated playing of “Itsy Bitsy Teenie Weenie Yellow Polka Dot Bikini” by Brian Hyland. You can hear it here. Needless to say the poor fellow breaks quickly.
Now I wonder what they played to torture those Gitmo detainees? Was it rap music? Shudder. Rap music is to music as sodomy is to sex.
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October 23, 2009, 9:19 pmBama 1L says:
This seems to flow from situations in which musicians have asked politicians to stop playing their songs at rallies. Think of Tom Petty successfully demanding that George Bush stop using “I Won’t Back Down” in 2000. Politicians comply, although probably not because they fear a copyright infringement suit. Unfortunately, some musicians seem to have concluded that they have some legal right to control use of their work, perhaps especially in politically sensitive contexts. That’s probably true under a moral rights regime (e.g., France) but not under copyright.
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October 23, 2009, 9:20 pmArthurKirkland says:
Would analysis be influenced by any pecuniary interest (for example, that of a contractor paid for selecting, regulating and administering the music used in torture) associated with the performance?
Is a copyright holder whose music is used in a noxious context (child pornography, torture, Santorum or Palin campaign) limited to recovery of scheduled compensation, or is the holder entitled to forbid use of musical property for such purposes?
With no exception I can currently envision, I support any effort to punish, inconvenience, humiliate or aggravate any person involved in torture.
Regarding political campaigns, such use seems more similar to commercial use of copyrighted material akin to endorsement (beer commercial) than to use as background music in a restaurant. I believe a copyright holder is entitled to negotiate a fee for use in a beer advertisement and, without agreement and payment, to forbid the use.
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October 23, 2009, 11:34 pmRicardo says:
Of course, there would also be the question whether the infringement took place within the U.S., and is therefore governed by U.S. copyright law in the first place
I’m curious: what are the other possibilities here? Apply Cuban law? Wouldn’t a U.S. court get to take jurisdiction simply by virtue of the fact that there are no reasonable alternatives?
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October 24, 2009, 12:41 amArkady says:
@EV
Hmm. Well, when does a “public” performance become a “private” performance? I think we might run into a something like the heap paradox here: How many terrorists do you have to subtract from a public performance before it becomes a private performance?
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October 24, 2009, 6:50 amuberVU - social comments says:
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new-nick says:
Assuming a similar copyright regime to the US one, an infringement claim would probably have worked in the case of the Panama invasion, though, wouldn’t it? That military use of the music was very much a public performance. (a href=“http://en.wikipedia.org/wiki/Music_in_psychological_operations”>Ref.
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October 24, 2009, 4:18 pmreadery says:
Clearly what happens in Guantanamo Bay is not public.
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October 24, 2009, 7:04 pmreadery says:
Also, one of the purposes of the doctrine preventing military personnel from having to respond to lawsuits is precisely to prevent opponents of wars and military policies from using the courts and petty lawsuits as weapons to harass the military. This would seem to be a quintessential example of the doctrine’s purposes. The military should cite the doctrine and ask the courts to stay the lawsuit for the duration of the war.
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October 24, 2009, 7:07 pmArthurKirkland says:
If you believe that unauthorized (and uncompensated) use of someone’s property to conduct torture is petty — whether the torturer is a contractor (who should not be shielded by any immunity) or a decision-maker in government (who deserves limited immunity, at most, in my judgment) directing the military, we will disagree about much, from property rights to the morality of torture.
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October 24, 2009, 8:51 pmmoo says:
None of y’all read _Men Who Stare at Goats_?
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October 24, 2009, 11:06 pmJosh S. says:
I hate to move this comment thread back to copyright, but if the prison is considered public by virtue of it being a place open to the public, I don’t know that even a performance to just one prisoner would be private. In Aveco, 800 F.2d 59 (3d Cir. 1986), the Third Circuit found a facility for the public to watch videos in private rooms was sufficiently public to infringe the copyright holders’ 106(3) rights. I don’t know if the court’s logic left room for the performance being to one person being private: “A telephone booth, a taxi cab, and even a pay toilet are commonly regarded as “open to the public,” even though they are usually occupied only by one party at a time.”
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October 25, 2009, 12:47 amBruce Boyden says:
In line with Josh S’s comment, I think we also need to look at part (2) of the definition of publicly perform: “to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”
So if there’s a policy of playing these recordings, using a device, to a “substantial number” of prisoners one at a time, I think that probably qualifies as a public performance. However, I think the use is probably “fair,” odd as that may sound — it’s not at all being used for its original purpose (entertainment); in fact quite the opposite. Nor does use as torture in prisons seem to be a market that the author reasonably would have expected to exploit, so there’s no harm to the actual or potential market.
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October 25, 2009, 12:17 pmJosh S. says:
Professor Boyden — I’m not sure what you mean by “using a device, to a ‘substantial number’ of prisoners one at a time,” but I think you need to look beyond the definition of “publicly” here. The Copyright Act also provides a definition for “transmit:” “to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” This matches the common understanding of transmission.
My understanding is that prisoners are usually tortured by placing headphones on them and then blasting the music very loudly. If this is what you meant by a device, I don’t think it would qualify under definition (2). If on the other hand, you meant that they were playing the music over loud speakers, even one at a time, I think you would be right about the definition, but wrong about the actual practice at the prisons.
As for fair use, you make two claims: one as to purpose, and one as to market. As to purpose, there is currently a split among the circuits as to whether purpose means a purpose in line with those defined in the preamble + parody, which would require some kind of social commentary about the appropriated work (2d Cir.); or whether it can mean a use other than the original intended purpose of the work (1st Cir.). I’m with you on the fair use analysis of market harm, but I wonder what the market effects will be of finding out that these artists’ works are capable of torturing people (see some of the comments above).
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October 25, 2009, 3:42 pmBruce Boyden says:
Hi Josh, I don’t think it matters whether it’s headphones or speakers. The definition says “transmit or otherwise communicate”–i.e. communicate in some way other than transmission. So the fact there is no transmission here doesn’t end the inquiry. There is a requirement that the communication be by “device or process,” which rules out live in-person performances, but I believe the CD player qualifies as a device. This is all in line with the Aveco case that you cite (I’m not sure Aveco is correct that the defendant was engaged in the performance, since the renters actually pressed “play,” but that’s not an issue here).
On the fair use point, obviously a defendant who uses a work for one of the Section 107 preamble’s purposes has a leg up. But it’s not required. (Which Second Circuit decision do you have in mind?) And at least lately having a starkly different purpose for the work has been held to be enough to satisfy the first factor, whether it is associated with commentary or not. See, e.g., Bill Graham Archives v. Dorling Kindersley, 448 F.3d 605, the Grateful Dead posters case. You could view the “timeline” that the defendant created in that case as some form of commentary in itself, but that’s not the way I read the decision.
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October 25, 2009, 5:04 pmJosh S. says:
Hi Bruce,
Aveco actually held that the defendants were liable because they authorized the performances that the customers were making, not that they performed the works themselves.
The emphasis I would place on the transmit definition is “beyond the place from which they are sent.” In the publicity definition, if you aren’t transmitting you must still communicate the work “to” a public space. For me, if Congress intended the definition to operate the way you imply, they would have said to or “at” a public space. If “otherwise communicate…to” necessarily includes “at,” I’m not sure how different it would be from the definition in (1) (which incidentally does use an “at”). Instead, I read the publicity definition as stating that (1) involves performances “at” a public location, and (2) involves performances “to” a public location, either by transmission or by some other means.
With regard to the first factor of fair use, in the Grateful Dead posters case, the court did actually emphasize that the defendant’s work was a biography “recognizing such works as forms of historic scholarship, criticism, and comment” (enumerated categories). The court also notes how the posters enhance the biographical text, and when they don’t, the court considers them representing historical artifacts of a graphical timeline, which is another form of social commentary. Similarly, in the Lennon case, the Southern District emphasized that the use of John Lennon’s song image was juxtaposed to cold-war imagery in an effort to criticize what might be perceived as Lennon’s naïve views. I agree with you that some courts have moved to this “different purpose” conception, for example in Nunez, but I don’t think all circuits are looking at the issue in the same light.
For me, I look back at Campbell, which added the word “transformative” to the judicial lexicon. I read Campbell as attempting to find a place for parody among the enumerated purposes, and it does so by saying that the enumerated purposes + parody are transformative: “Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under 107.” In my reading, if a use does not shed that socially beneficial light on the earlier work, it wouldn’t receive the blessing of fair use’s first factor.
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October 25, 2009, 5:50 pmBruce Boyden says:
Josh, thanks for the lengthy reply. You’re right, the Aveco holding is based on the language “to authorize.” I still believe the decision is probably wrong, because that’s generally understood to refer to secondary liability, and I don’t think there was any primary liability here (i.e., the liability of the button-pusher). I think the court was wrong that Redd Horne was not distinguishable.
But I think the rest of the opinion is correct, including the implicit holding that if Aveco had hit “play” on each machine it would have been a public performance. It seems clear to me that “otherwise communicate to [places or the public] by means of any device” means communicating a performance within the same place as the device in question. I think all the verbiage at the end of clause (2) is what distinguishes such communications from the performances mentioned in clause (1): “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” I suppose you could question whether that expanding language is supposed to apply to all of the transmissions and communications mentioned in clause (2), or just communications “to the public.” But the places mentioned in clauses (1) and (2) are places that are open to the public or some portion of the public, and therefore I think the reference to “members of the public” would include all of the transmissions and communications at issue. If not, then transmitting a movie to members of a large private club, or an apartment building (i.e., not the general public) to enjoy in their own homes would not be a public performance.
Re: purpose of the use, I think it’s pretty clear that you don’t need a preamble use to satisfy the first factor, e.g., time-shifting.
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October 25, 2009, 6:58 pmreadery says:
You’re entitled to your religious beliefs, but we live in a secular society which requires a rational basis for government policy, and morality however strongly felt is simply not a rational basis. Policy should be based on something other than religious belief. You’re entitled to believe human life begins at conception and that that fetuses and enemy combatants are persons and you’re welcome to protest at abortion clinics and military bases all you want, but you don’t have a right to impose your religious faith on others in a way that would impose an undue burden on our freedom of choice. This is a secular state and needs to stay that way.
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October 26, 2009, 9:14 pmEd says:
Isn’t there a statute of limitations? They stopped this practice in fall of 2003.
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October 27, 2009, 8:53 pm