Hi Sam:

Very interesting. Thanks.

I'll say it one more time, it would be very much against copyright owners' interests to kill 
internet streaming "radio," in my opinion. I think there's a lot of hot air on both sides of the 
issue and I think since we live in a relatively market-oriented economy, the profit motive will win 
and what will probably result is that bigger net-streamers will pay bigger fees but not enough to 
kill them and smaller net-streamers will probably have a lesser fee if they can prove lesser 
profitability. I would hope, given that all but EMI of the major record companies are 
publicly-traded (EMI is about to be bought by a private-equity firm), that the dealings of their 
industry association is aimed at maximum long-term sustainable profits for the companies, and 
killing off a source of revenue is not good business.

-- Tom Fine

----- Original Message ----- 
From: "Sam Brylawski" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, July 18, 2007 8:30 PM
Subject: Re: [ARSCLIST] 78s, SoundExchange, & SaveNetRadio-Tom & Mal

> First, the obligatory I'm not an attorney, etc., etc.
> Malcolm's question is easy, I think. A CD could be copyrightable as a
> compilation or a new work when it includes extensive restoration of a
> pre-'72 recording. Mal's station would not have to pay the
> federally-mandated fees unless Mal decided to copyright that CD as a new
> work.
> On Tom's issues about what state you webcast from, no pre-'72 webcasting
> issues have been codified or argued in state courts, to my knowledge. As I
> wrote earlier today, SoundExchange, a label, or an artist or artists'
> estates could file suit against a webcaster of pre-1972 recordings. In my
> opinion, it's unlikely, at least in the case of 78s, because there's no
> money in it. Companies don't even keep them in print, etc.
> Those who attended the ARSC conference last year in Seattle will recall
> attorney David Levine's talk on Naxos/Capitol.  He believes that with state
> boundaries being irrelevant on the internet, someone could be shut down even
> when complying with a law withing their own state. Conjecture, but he's an
> expert.
> Tom, I believe that every state but one (Vermont? Can't recall) has a law
> protecting rights holders of recordings. None of these laws to my knowledge
> reference the internet; they were written before 1972. Any could be changed
> at any time, of course. But again, music copyrights are federally protected
> and a webcaster of post-1922 music should be paying ASCAP and/or BMI and
> maybe Harry Fox.
> Attorneys for public institutions which post copyright-questionable
> materials on the web measure what they call "acceptable risk." Posting
> Edison recordings, which don't seem to be officially in the public domain,
> seem to be acceptable risks. If I were to create a webcasting stream of
> "Billy Murray 24/7", I doubt if anyone is going to come after me. "All
> Beatles All the Time" is another story.
> The number of US recordings still protected by state laws, but completely
> out of print, is in the hundreds of thousands. I live in DC and have no
> congressperson to complain to. Maybe some of you who care about this issue
> would like to express your opinion to your representatives. They probably
> don't subscribe to ARSCLIST.
> Sam
> Sam
> On 7/18/07, Mal Rockwell < [log in to unmask]> wrote:
>> Sam -
>> So if I go down to my local radio station - and Maui does have a
>> non-profit, low power (50 watts), simultaneous webcasting station that
>> all the jocks program their own music on - and play my pre-1972 78s, 45s
>> & LP's on a turntable, the station is not liable to pay any webcasting
>> fees?
>> But if I transfer the originals to a personal CD the station will have
>> to pay a fee if I play it?
>> Just making sure what's what here.
>> Mal
>> *******
>> 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.
>> >
>> > That said, SoundExchange could always try to go after internet
>> > streaming of
>> > pre-1972 recordings through state courts, and music copyright fees
>> > apply to
>> > all recordings of post-1922 music. But again, this controversy does not
>> > apply to any recording pressed before February 15, 1972.
>> >
>> > Sam
>> >
>> <snip>