Sunday, March 11, 2007

Rush Limbaugh and Copyright

It was only a matter of time before ditto heads and Rush weighed in on copyright. It must be said that Rush acquits himself quite well. Here is a transcript of a March 9th call:


RUSH: Here is Tony in Mesa, Arizona. Thank you for calling, sir. It's nice to have you on the EIB Network.

CALLER: Hey, Rush. Mega dittos from Arizona.
RUSH: Yes, sir.
CALLER: I wanted to ask you about a problem with our antiquated copyright laws. It seems if you show any copyright material like an episode of “24” on a TV larger than 55 inches to company, it may constitute a "public performance" and therefore break copyright law. I know you have a big screen TV. I have a big screen TV. The copyright law currently goes under anything that has more than four speakers in one room, constitutes a public performance and will break a copyright law. The NFL was the one that brought this to my attention when they had their big what to-do with the whole Super Bowl party in churches.
RUSH: Yeah, but there's a reason for this, and that is that these sports bars that have all these TV screens in there showing the Super Bowl are paying for it. They are paying. There's a rights fee for this, or they may be using smaller screens, but it's just like... Let me tell you, if you have a restaurant and you play music in there, the first people you're going to hear from are the BMI and ASCAP gang, and they're going to want royalties for every bit of music. You're using that to draw customers and make money, and the people that own that property want their cut. The Super Bowl, the National Football League, they're not giving the product away. The 54-inch thing is, I think, just an arbitrary number maybe, but it's designed to keep people from using big screens to attract large crowds and perhaps try to make money on the side in their own way. What do you think is "antiquated" about that?
CALLER: Well, I don't think there's any problem with protecting one's rights to the material. I just think with our technology, with TVs getting bigger at home, it does seem to leave a loop for private citizens to get into legal troubles by, you know, just having parties and showing it. RUSH: No, that's not going to happen.
CALLER: I don't think it's going to happen, but they seem to threaten that.
RUSH: Well, where? Where have you seen any evidence of that?
CALLER: I just read an article over at TechDirt.com that the NFL wants to remind you that having people over to watch the Super Bowl on a big screen is copyright infringement, and they're alluding to the possibility if you have a big screen in your house --
RUSH: -- and you're showing “24” or the Super Bowl, and somebody learns about it, they can come and shut you down?
CALLER: Well, that's what they're saying the law leaves loopholes for. It doesn't say it can happen. I don't know of anyone who's been sued over this, but it seems to be a good possibility. RUSH: I don't see how. The privacy of your own home is different than a public place. Church is a public place.
CALLER: Sure.
RUSH: A sports bar is a public place. You have the Fourth Amendment protecting you against illegal searches and seizures, unless Bush is tapping your phone and then, of course, all bets are off. But, no, I've got a giant screen in my place, and I have people over to watch the Super Bowl and the last round of the Masters and “24,” and I'm not worried about it. We're not making any money off of it. I'm not sending out a public invitation.
CALLER: Sure. But you talk about it a lot on the air. I thought if anything happens, it will happen to you first.
RUSH: (Laughing.) You know, this is interesting. This just goes to show you the natural inherent fear people have of government. You actually have a genuine fear this could happen, right?
CALLER: Well, not a genuine fear. I work at a church, and I've been studying copyright laws so that we don't break it, because we are a public forum and we buy certain licenses through certain or organizations to make sure that we don't.
RUSH: You know what they're thinking? The church wants to invite people in to watch the Super Bowl, fine, and the church isn't going to pass the plate, but the church thinks that maybe the next time they do pass the plate there will be a little bit more in it because of appreciation. CALLER: You never know.
RUSH: You never know. You never know what they are thinking. Speaking of this, you want to talk about copyright and all that. People who listen to this program on our daily podcasts, which are distributed about a half hour after the program is over each day, we do not put in commercials in the podcast because the advertisers are not buying that.
CALLER: Sure.
RUSH: And we don't put in any music. We don't put in any parodies that use licensed music because there isn't... Well, there's permission to do it, but the cost is prohibitive, and they just raised the rates. The copyright tribunal -- the broadcast people, the music people -- just announced their rates. I want to tell you how this works. It just happened early this week or late last, and it's going to affect everybody that plays music on the Internet. We're already covered here the way we do the music with BMI and ASCAP with a broadcasting contract. The Internet is a whole new thing, and podcasts are delivered via Internet. This is going to affect everybody who plays licensed music in any form on the Internet. Here's the formula -- and I don't have all of the years, but I ran the numbers for us. I think it's 0.00008¢ -- four zeros and an eight, so eight-thousandths of a cent -- for every time you play the tune, times the number of people in your audience.

So, if this were applied to us, we would have to pay something like -- in this year, next year it goes up, and eventually it gets up to 19-hundredths of a cent per audience member. Every time we play a parody here or something, if the podcast audience was as large as the radio audience (and it's going to be someday) would be about $6,000. Now, you might think, “Well, you're EIB. Six grand is nothing.” Times how many times a day, times how many broadcasts a year -- and the rates go up. It adds up. You know, I think these people are actually shorting themselves. They're going to see to it that fewer and fewer Internet broadcasters or streamers are going to use licensed product because that's going to add up. Now, for small operators that don't have large audiences, they may be able to afford it, but that's what we've been trying to negotiate with ever since we started our podcasts and that's why they are music-free. Even bumper music is covered. You can't put bumper music on or any parody that uses music. We just played John Edwards singing “I am Woman.” We cannot put that on the podcast. People listening to the podcast this afternoon are going to hear me intro it. They will not hear the song, and they're going to hear me say, “Man, that was funny as hell,” and they want to know why they can't hear it and send me e-mails. That's why I'm explaining this. This is not going away. In fact, the intellectual property owners are getting even more vigilant about theft because of things like YouTube and MySpace. There's all kinds of stuff going up there, and the people posting it don't own it. These guys are going to go like banshees to gain control of it because it is their property. They are creating it, be it “24,” be it any other network show or what have you. But I don't think they're going to invade our homes, not for that. They may eventually invade our homes to see if we have any Bush paraphernalia in there, but beyond that I'm not worried.

2 comments:

Max said...

The caller is correct that people are getting bigger TVs and effectively creating home theaters (which, of course, is precisely how the salesman describes the ultra-super-duper-big screen plasma with 7 speaker surround sound). And by doing so, they are stumbling into copyright law. Ditto for personal websites leading to personal "virtual" printing presses or music distribution, etc.

Hopefully Congress will eventually rebalance copyright law based on changing realities like this. But I'm not holding my breath. I think it's more likely that the combined educational efforts of the RIAA, MPAA and Creative Commons will eventually hit home (the common message being "all rights reserved means 'do not copy without permission'"), and people will start looking for Creative Commons licensed material (or similarly-licensed material), and shunning anything without a permission statement.

pilgrim said...

It's nice to see the arcana of copyright law getting some attention (and hey, it's nice to see Rush Limbaugh not totally butcher the facts, but only get them slightly wrong). But of all the problems that need to be worked out in copyright law, all these 55"-TV horror stories that cropped up before this year's Superbowl are rather bizarre.
The subsection of Title 17 in question, Section 110, creates a carve out for certain types of performances/displays. I.e., by default, a public performance is an infringement, but 110 exempts some types of conduct. One of those categories is reception of a transmission, and the showing of that transmission on the kind of TV one finds in private homes. That is, even if you actually are dislaying a broadcast for the public (which would other infringe the owner's display/performance rights), you can it anyway (without infringing) if you follow certain rules. One of those rules is that if the place you're doing this is "large" (over 3750sf for a bar/restaurant, or 2000sf for others), then the TV in question can't be more than 55". Some other rules are that you can't charge admission to see the broadcast, and you can't be getting it via pirated cable or satellite. Yes, it's really complicated, is difficult for a layperson to understand, and the text certainly reflected the sort of lobbying and horse-trading on Capitol Hill that we all lament. But the bottom line is that this rule doesn't apply to people watching TV privately in their homes (like the caller to Rush Limbaugh), no matter how big their TV is (and doing so is not infringement of the *public* performance or display rights). And if a church or similar venue wants to show the Superbowl, they can do so provided they don't charge admission, and either (a) they are a small church - under 2000sf, or (b) they don't show it on screens larger than 55", and they have a maximum 4 TVs showing it in total, and no more than 1 in each room. As an alternative a church might also try to claim fair use, although I doubt they'd win such a case over a Superbowl broadcast.

Frankly, I'm not all that up in arms that churches are forced to get a license for showing the Superbowl on a movie screen hung above the altar. Call me a jack-booted secular copyright thug.

On the other hand, I'm rather glad that this issue is being discussed publically. Churches and other non-profit institutions ought to be concerned about the scope of copyright, and what it means for the ability of the organization and its members to make use of creative works. If this issue is what it takes to get these groups interested, so be it.