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.

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.

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.

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.

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.

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).

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.

This post was mentioned on Twitter by wiselaw: Copyright Infringement in Playing Loud Music to Soften Up Guantanamo Detainees? http://bit.ly/70FWc...

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.

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?

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?

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.

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.

Nick

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.

Does that mean that copyright duration is really 101.5 years? (Life of the author + 70 years, but if 1977-2040 = 2 life’s….)

Purple Koolaid: Dur­ing the stand­off at w/ the branch david­i­ans, they blasted Nancy Sinatra’s “These Boots Were made for walking”.

Now, I would think that that would be closer to a public performance than GitMo.

Nunzio: 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.

Wasn’t Leonard Peltier arrested during the Clinton administration? I know there was at least one rock song about him.

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.

Indeed. The beneficiaries and participants in these “performances” were all there on their own accord, invited guests to a very private club….

Cheers,