It is important that one must bear in mind, before taking Tom's question
into consideration, that the Capitol / Naxos case only considered the
copyright in the sound recording. This is a completely separate issue
publishing rights and consequent royalty payments.

Presumably, this is rather like considering where a point of sale is or
where a contract of sale has been created, as with  downloads. Another
defining point is where payment is made. I certainly am not an expert with
regards to the legalities of Internet Radio. So, I will just throw the
suggestion into the ring that responsibility for any financial liabilities
in this case lies with the person or company that is dictating what is being
heard and is responsible for broadcasting or uploading the music, not how it
is, in effect, transported to the listener. To put the onus on the server in
whichever State it is in, is rather like saying that a shipping agent should
pay tax on the manufacture of the goods that it has been asked to deliver.
What a wonderful idea!

Gary Atkinson
Managing Director
Document Records Ltd


-----Original Message-----
From: Association for Recorded Sound Discussion List
[mailto:[log in to unmask]]On Behalf Of Tom Fine
Sent: 19 July 2007 00:19
To: [log in to unmask]
Subject: Re: [ARSCLIST] 78s, SoundExchange, & SaveNetRadio


So now here's a key question -- and maybe no one on this list is qualified
to answer it. If an
internet service provider like Live365 has its servers in a state with no
copyright restrictions
going back further than the federal 1972 cut-off, and I'm programming my
radio show from a state
like NY that has superceding and harsher copyright restrictions, am I
committing a crime? I think
the question comes down to what is origination with an internet streaming
"radio" program -- does it
originate at the server or at the facility where tunes are collected and
loaded onto the server?

For the record, I produce no copyrighted-music-oriented internet "radio"
shows or other
internet-mass-accessible audio files.

-- Tom Fine

----- Original Message -----
From: "Gary Atkinson" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, July 18, 2007 5:56 PM
Subject: Re: [ARSCLIST] 78s, SoundExchange, & SaveNetRadio


> Sam is right.
>
> As you can imagine, our legal team has gone over this with an extremely
fine
> toothcomb. When I say legal team, we have one in house who is lawyer in
> commercial contract law and another who is an expert on licensing law and
is
> a registered member of the State Bar of California. The team also extends
to
> one of the top law firms in London which specialises in music law.
>
> What I have to say is the result of listening to the results of lengthy
> research and discussion. I am keeping it short because I am not an expert
> and must be very careful how words are chose in what I realise is a very
hot
> topic, that's why I employ these people.
>
> The court in the Capitol vs. Naxos case originally found in favour of
Naxos
> because U.S.A. federal law does not recognise copyright protection in
sound
> recordings prior to 1972. Not a fact that is widely known. Anything
decided
> after that date cannot be put into force retrospectively. On Appeal, the
> court in the Capitol vs. Naxos case brought into play a Common Law ruling
> for the state of New York. This being the case New York State is actually
> the only state where the judgement was applicable.
>
> Gary Atkinson
> Managing Director
> Document Records Ltd
>
>
> -----Original Message-----
> From: Association for Recorded Sound Discussion List
> [mailto:[log in to unmask]]On Behalf Of Mike Richter
> Sent: 18 July 2007 22:03
> To: [log in to unmask]
> Subject: Re: [ARSCLIST] 78s, SoundExchange, & SaveNetRadio
>
>
> Sam Brylawski wrote:
>> Internet radio may be crucial to promotion of historical recordings, but
> if
>> an internet radio station plays only 78s and early LPs in their original
>> form, i.e. not from CDs, the recent webcasting fees do not apply.
Pre-1972
>> sound recordings have no federal copyright protection and digital
>> dissemination fees cannot be collected for streaming them.
>
> What is the basis for your blanket declaration on copyright? Is there
> reason to believe that Capitol USA vs. Naxos does *not* apply? Under
> that decision, federal copyright does apply and in fact is restored to
> works which are in the public domain in other countries.
>
> Without a citation, you are offering a legal opinion which is at best
> questionable.
>
> Mike
> --
> [log in to unmask]
> http://www.mrichter.com/
>
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