Copyright Infringement in Playing Loud Music to Soften Up Guantanamo Detainees?

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.)

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