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Jun 06, 2005

Comments

1.

The simple real world comparison is this: Let's ban all musical instruments because someone somewhere might use them to play a song that they didn't write. That ought to end the debate since it will end music.

Oh, and don't forget to ban people's ability to make noises from their pie-holes as they might end up singing a song that they didn't write.

2.

I think that the SWG issue is actually chimera of two real world situations:

1. A cover band playing in a club or bar.
2. A DJ broadcasting her remixes.

3.

Interesting. I was in the Mos Eisley cantina last night and an entertainer was speaking modified lyrics to "Mack the Knife". Does the ability to broadcast copyrighted lyrics to the server population mean that all text communication should be removed as well?

4.

Since then it's not allowed to have or use musical instruments?
OR since then producer of guitars would be responsible for what every buyer will play on them?

If US law is troubling themso far, register SWG owner-company in Palestine or Uganda or any EU country(there are at last 4 EU laws that directly allow you to play that madonna song) and problem is solved.

5.

It’s probably circle breaking, but they could do the SL side step and facilitate streams.

6.

Greg (quoting Wired quoting SOE lawyers)>If we allowed someone to play anything they want, they could play a song by Madonna and then we'd have licensing issues

I guess this means it's just a matter of time before the music industry comes down on this.

Do they have buskers in the USA? What music do they play?

Richard

7.

Surely it would be easier for the copyright owner (setting aside the rights and wrongs of copyright) to collect royalities in virtual space than in real space. If you use an in-game instrument to play a piece of copyrighted music, the game could simpy deduct a few platinum pieces and wing them over to Sony Entertainment.

8.

Greg,

I am not sure this is quite the same as the Marvel suit. Aaron pegs it: what is the substantive difference between the MMO* that allows players to play their instruments and a venue that at which a cover band plays?

Did anyone at Sony look into what ASCAP/BMI/SESAC would charge for their respective licenses (per shard or per game)?

Shame on Fred in the article. I get so tired of the EFF shtick.

Jeff Cole

9.

What happens if a player reads the Madonna lyrics line by line?

What happens if a player with voice chat (coming soon to many new MMORPGs) sings the madonna lyrics?

What happens if a player pipes a madonna recording through voice chat?

Techincally: If the music companies provided MIDI "clips" from their copyrighted songs, it would be reasonably easy to detect an infingement, taking into account key changing and tempo variations. Would this be legally necessary? What happens if 1 (or 2, or 3) out of 10 notes are different? Is this copyright infringement.

Do text chat systems need to likewise verify that users aren't infringing copyright by searching through hundreds of terabytes of text to make sure the player isn't typing in someone's copyrighted material?

10.

I really do not buy this excuse.

As many people have mentioned, people could easily broadcast lyrics via text in the game.

Or they could paste articles from magazines, or given enough time books.

SOE must have had some other reason for not allowing it (possibly something as simple as not wanting to spend money to code/support it) and they are using this excuse as a way to dodge accountability.

11.

Afterthought:

Heck, is there a substantive legal distinction (for copyright/licensing purposes only!) between music broadcast in SWG, and music broadcast over good ol' airwaves?

Seems to me, it's just a matter of negotiating the amount of the license.

Jeff Cole

ps. Initially, I had thought there was a potential sync license issue, but have convinced myself there is not.

12.

Jeff Cole > legal distinction (for copyright/licensing purposes only!) between music broadcast in SWG, and music broadcast over good ol' airwaves?

Don’t think there is a legal distinction in the way that you mean.

Issues are ones of practice. The parallel is that, at least in the UK, there is a well established system for collecting royalties from radio stations and other places that do public performances. It’s the PRS (Performing Rights Society I thin that does this).

The issue with radio is pirate and now, if you see IP as a radio medium, streaming / pod-casting etc.

Thus SOE simply don’t want to be used as a pirate broadcaster.

13.

There is a difference in net-radio licensing, traditional radio broadcasting, and venue performance licenses.

At first glance, the only one that comes close to applying to online services would be the net-radio license. IIRC, actual licensing fees are based on the number of times the music is played and the size of the estimated market listening. The bigger the market, the more you pay per song. Both the recording label and the songwriter/composer get a royalty for each performance.

I stopped following the Internet Radio Royalty debate once the US Copyright office issued its ruling, but found this pdf detailing the mandatory methods used.

This license doesn't translate well to SOE's needs, and it would be incredibly costly for SOE to operate under it, however you break it down. They'd have to implement a system to keep track of songs played, time on the air, and audience size for each performance.

-----
An easier approach would seem to be local venue licensing, but this is handled very differently and does not apply to virtual worlds. "Music Performing Rights Organizations" like BMI, ASCAP, and SESAC represent different agencies. They offer annual licenses to venues that may want to play the songs in "public places." Bars with stages, jukeboxes, or DJ's fall under this, as do public areas in dorms, nursing homes, bowling alleys, gyms, and "private clubs." They cover all performances (movies,TV, music, etc).

The cost here is determined by the size of the location and how the music is offered. I've seen small bars pay $500 for basic jukebox services, and I've seen a college dorm get sacked with $1000 licenses to cover an ill-conceived one-time free "public performance" of a movie in a 20-seat TV-room (It was "Navy Seals" no less... the students should have been compensated for WATCING it)

If you want to be able to play a movie in the public area- you're gonna buy a license (or risk getting nailed). A friend who works in the recreation hall of an assisted living center has 2 big-screen TV's and about 12 seats per TV. To insure he's covered for any movie the residents may bring from the video store (or that he has in his personal library) he pays about $4000 (total) to three licensing agencies annually. He once assumed he could do it for free, but a resident reported him (he paid 4 years' back-license rather than go to court...)

Since size of venue and frequency of play are variable in a virtual world, none of the current agencies have licenses that address this venue, even if they had the powers to issue such a license. Media companies would be reluctant to issue such licenses, as they easily become "loopholes" to deny them revenue from other models (move your net radio to a SWG cantina and save all licensing costs)

Finally, offering a public performance without a license is copyright infringement. Copyright infringement in the US can include the copyright owner's actual damages, the infringer's profits, and ‘statutory damages’ of $30,000 (up to $150,000 per song if the infringement was "willful"). Now, assuming a 3 minute song, if SOE was found liable for hosting such an infringement that went unnoticed for 30 minutes (10 songs) they could be fined $300,000 (to $1,500,000 if it can be shown they willfully allowed it) in statutory damages. Multiply that by the number of potential public performances...

I don't blame them from being careful.

14.

Ren: Right.

So long as SWG obtains a license from ASCAP/BMI/SESAC they're good, right?

It's all managed through contractual relationships.

So, then there are, generally, three possible categories: (1) original works of authorship authored by an author who is a subscriber, (2) original works of authorship authored by an author who is not a subscriber but is a member of a major performing rights society, and (3) original works of authorship authored by an author who is not a subscriber and is not a member of a major performing rights society.

Catgory (1) can be easily handled through the EULA (i.e. direct contractual relationship between author and developer). Category (2) are handled through a developer's license (contractual relationship) with the author's performing rights society. Category (3) circumstances do not expose the developer to any significant liability.

I just don't buy that copyright per se is the problem, here.

In fact, this fact performing rights societies exist to facilitate licensing in just these types of situations.

Jeff Cole

15.

The problem really seems more one of "public" versus "private" in onlines spaces being poorly (or not) defined.

Similarly, how do you value a Cantina in SW:G? Is it the average number of avatars who are there, say 10, the maximum that the cantina can support, say 100, the maximum number that the shard can support, 3,000 or whatever, the max cuncurrent of 30,000 or whatever, or the total subscriber base of 300,000. If you are talking about this with ASCAP/BMI/SESAC folks, do you wanna bet that they will argue for really large values, effectively preventing the Cantina from operating.

16.

> Chas York wrote:
>
> If you want to be able to play a movie in
> the public area- you're gonna buy a license
> (or risk getting nailed). A friend who works
> in the recreation hall of an assisted living
> center has 2 big-screen TV's and about 12 seats
> per TV. To insure he's covered for any movie
> the residents may bring from the video store
> (or that he has in his personal library) he
> pays about $4000 (total) to three licensing
> agencies annually. He once assumed he could do
> it for free, but a resident reported him (he
> paid 4 years' back-license rather than go to court...)

And the movie industry wonders why very few people consider pirating movies to be immoral?

Instead of their crappy commercials they force us to watch at the theater, maybe they should work on better policies for crap like this.

Furthermore, the above example is not comparable to someone playing music in SWG.

What it is more comparable to is if that same facility had a piano (many of them do) and if a resident played the piano the facility would have to pay a licensing fee if that person played any copyrighted songs.

> I don't blame them from being careful.

I blame them for lying and either being too lazy or just not wanting to give their players the freedom to play music.

17.

Jeff>In fact, this fact performing rights societies exist to facilitate licensing in just these types of situations.

First, these performance rights societies are limited to the venues they're allowed to license to. They can't, for example, negotiate a radio or net-radio license. These are standardized elsewhere.

From what little I've been able to glean, the venue-rights organizations are limited to location-specific instances. They could not issue to SOE if they wanted to.

This is, as the article suggests, where the current social system breaks down. Internet-radio broadcasts are managed differently than local venues, but the virtual world environment doesn't work well with such a license model. Venue licenses make more sense, but are barred from the internet medium by definition. SOE is left in a legal limbo until somebody determines how a license should be governed, but any performance would still be a copyright infringement.

Also, this isn't limited to audio. Mike mentioned that someone could stream text of a song... well, that, too is claimed as a right by the copyright holder. As this old link suggests, online lyric databases were under litigation for unlawfully presenting that information at one time...

What about teamspeak or net radio? I've known guilds that have a "DJ" streaming music throughout a raid...

Well, net radio is covered under the MANDATORY license above, but there are some stipulations there for the truly small, guild level group. I'd suggest checking that to determine if your "guild radio" is required to pay royalties.

As for teamspeak... I think there's a case to argue that this does not constitute a "public performance" as it's a "private" gathering of "family and its social aquaintances." It's a stretch of the law, mind you, but it might hold. Besides, to be CAUGHT you have to be reported.

Do you trust your guildmates?

Remember, they could get a cut of the revenue if they report you....

18.

Aryoch,... the above example is not comparable to someone playing music in SWG.
What it is more comparable to is if that same facility had a piano (many of them do) and if a resident played the piano the facility would have to pay a licensing fee if that person played any copyrighted songs.


There is no difference in the eyes of the law between playing the music from a recording or playing the music on your own instruments save one:

If you perform the music without the license, you're violating the rights of the songwriter/composer. If you play a recording of an artist playing the song, you're violating the rights of the artist/label AND the songwriter/composer.

So the analogy really doesn't need strengthing. It's the same violation of the same crime, you've just halved the number of offenses.

19.

Chas -- thanks. You sound like an IP lawyer... ;-)

I think you've misconstrued Aryoch's question about the piano, though. I think what he's asking is: would the owner of a coffee shop have reason to fear a letter from ASCAP for merely placing a piano in the coffee shop? (Presuming, course, that the shop never enters into a contractual arrangement with a performer.) I'm never seen a lawsuit that looked like that, but I haven't looked hard for one. Who knows?

I realize that any person who, by their own volition, shows up and plays Madonna to the patrons of the shop will need a license, even if it is non-commercial (see the Girl Scouts PR fiasco). The difference here, I think, is that this decision by Sony removes the possibility of getting that far. End users are not allowed access to the technology that would allow them to create because of SOE's fear that enabling *any* creative expression will enable infringements that they don't want to worry about. A player who wanted to compose her own original songs in the cantinas is not allowed to do that because cyberspace is restricted in ways that real space is not restricted. That's a sad state of affairs (and why I think this is analgous to NCSoft, Jeff).

20.

Chas, you are mistaken on how performing rights societies work.

http://www.ascap.com/licensing/radio/

http://www.ascap.com/weblicense/

http://www.ascap.com/reference/writerapp.pdf

Authors give the societies the right to license non-dramatic public performances of the works.

And, you also misunderstand the compulsory license, above. It is a licensing alternative to the performing rights societies. It is not compulsory in the sense that all webcasters have to pay it, it is compulsory in the sense that a copyright holder must license to a webcaster that jumps through the appropriate hoops.

Jeff Cole

21.

Greg, you are correct, the coffee shop owner would not face liability for merely placing the piano in her shop ... however, once she starts letting people play it ...

I understand the similarities between this and Marvel insofar as creative restrictions are concerned, but I think they are sufficiently distinguishable so as not to be "analogous." But I readily admit that is a normative judgment.

Jeff Cole

22.

Jeff,

Thanks for the correction, I was trying too hard to draw the distinction between the venue-based licenses and the online ones. I didn't mean to imply that a performing-rights society could not also manage the radio contracts, but it did come out that way.

My main point was that these perfroming-rights societies have to operate within the bounds of their contracts. They are not be able to forge "new agreement" that handle alternate media (virtual worlds) without insuring their agreement with the IP-holder allows it. Most do not. There's too much at stake as each emerging technology could mean new revenue streams. That contract would have to be ammended first.

In the "webcaster" agreement, I think your distinction may confuse the issue. The wording could lead some people to assume that they don't "have to pay" to webcast.

The contract is "compulsory" in that the IP holder (or representative) must license the IP under the conditions provided to any willing to operate under that condition (no witholding, no gouging others). The IP holder should be free to waive the fees listed within. However, it is also "compulsory" in that webcasters CANNOT legitimately operate without seeking permission from the IP holder or its representatives. The permission may come from elsewhere, (it could be free) but it can never be assumed.

I'm more experienced with the way these societies operate under the venue license, as I've encountered a good number of people who have fallen afoul of them.
------
greglas,
would the owner of a coffee shop have reason to fear a letter from ASCAP for merely placing a piano in the coffee shop?

I'm not a lawyer at all (as my goof here can attest). As for your question... well, karaoke bars have been required to be licensed for their songs, so I'd gravitate to a qualified "yes." If the coffee shop owner placed the piano with the understanding that customers could use it, they do have a small risk regarding what the customers opt to perform.

In those instances, a diligent shop owner has little concern for a license. The shop owner could argue that the piano was just there for ambiance or performance of original works, or that he licensed for a small portion of songs, but stops any unlicensed performances. His risk would be minimized.

That's not to say that the licensing agency wouldn't do some arm-twisting. Which would you rather pay: an annual $250 fee or $250/hour to a lawyer?

23.

Chas, no worries.

I guess my main point is that IP is a convenient scapegoat because it provides a very fertile soil for FUD. So, I cringe when I read, "IP makes that possibility too dangerous for Sony Online."

Did SOE ever contact ASCAP/BMI/SESAC? If so, what result?

Ultimately, I agree with Greg, et al., that it would be cool to be able to play music in such spaces. What I am not sure about is the lack of solution. I am immediately skeptical of any argument that takes the leap, "this is virutal, therefore, we need a different law."

Jeff Cole

24.

I do agree that raising the "IP Flag" is generally to be questioned. I don't blame the devs as much as I blame the lawyers. I've been in (heck, I'm working in) places where corporate lawyers, so averse of risk, stifle any significant innovation.

Another part of the article did mention giving the player the ability to compose their own songs from "segments" of music- a "remix grab-bag," if you will. This, itself, is a significant undertaking. The fact that they're considering going so close to "per note composition" but stopping short suggests it's not about an aversion to code.


25.

I understand SOE's stance, but think it's more a question of gunshy Legal Counsel than it is any real exploration into the legalese behind it.

As a former Master Musician (twice), I also want to point out that the current SWG interface would need a serious overhaul to allow bands to create full songs note by note. Bandwidth would also hold them back. Unless players precoded their songs (which would require an integrated music notation module to get the required accuracy), I don't think bands would be able to stay in time. A player and his/her droid maybe :)

What exists right now plays the current selection well (8 keys to activate loops and players can control a whole band of people if they want). It's more about the casual side of Apple's GarageBand than it is something like Finale and mixing boards.

I've always wondered if SOE's reasoning wasn't really about the legal angle as much as they couldn't justify the expense to do it "right".

26.

I may have missed it but I haven't seen anything here about SOE's status as a common carrier. That is, if SOE provided the ability for players to play musical notes, and some players played copyrighted series of notes, SOE would not, in theory, be liable for any copyright infringement (as it stands now, not even Madonna could come in and play one of her own songs!). So long as SOE doesn't provide editorial oversight, they're a common carrier (used originally I believe to refer to the phone system, and how you can't hold them responsible for what someone says to you over the phone - harassing, profane, or even copyrighted).

Of course this doesn't mean that someone couldn't sue SOE and cause them headaches that way, whether their suit was successful or not. Lawyers tend to advise against anything that could bring up a lawsuit no matter how unfounded... and while IANAL, lawyers are definitely not game designers either.

Darniaq may be right too -- there could be entirely other reasons (technological, resources, managerial, etc.) for why they've left this ability as limited as they have.

27.

Mike Sellers wrote: Darniaq may be right too -- there could be entirely other reasons (technological, resources, managerial, etc.) for why they've left this ability as limited as they have.


Technologically, players won't be able to play in sync because of the internet lag... the human brain can compensate somehwat, but not too far. I'd guess 1/10th of a sec max. (I vaguely recall hearing that some medieval composers tried splitting the orchestra and choir on opposite sides of the cathedral for a cool stereo effect, but had problems with the speed of sound.) Players in the same room could coordinate.

The MIDI also needs to be cached and delayed to ensure no drop-outs as well as the 1 ms timing accuracy necessary for music. This means that players will hear the musc 500 ms+ after the player has played. (Voice chat already does the same.)

Game play issues also exist, as mentioned above: Such as Madonna tunes being played in a medieval setting (although many medieval songs were also very baudy). 50 players trying to play the same piano and squabbling over it. Using MIDI to annoy other players. Relative lack of MIDI keyboards, a low number of players that can actually play, etc. These are all reasons for a mass-market product to avoid MIDI.

NOTE: A MIDI keyboard is just another input device, just like a mouse or keyboard.

28.

Curious... I expect the somewhat grumpy SWG player community not to take an SWG producer at his word, but I'm a little surprised to see the same reaction here.

What's so odd about what Torres said? Why is it strange that SOE/LucasArts would prefer to avoid any licensing entanglements?

After all, they're not in the business of distributing music; they're game developers. Their particular game has a feature that allows players to play music together, but how does that imply a responsibility on their part to allow players to compose their own music (some of which could be already-written songs that are copyrighted)? Is it really so easy to create such a composition capability that writing and testing that code would have a satisfactory cost/benefit ratio, even taking into account licensing costs and potential legal action?

All things considered, why not just take Julio Torres at his word when he says they'd rather not expose themselves to legal (i.e., financial) trouble?

--Flatfingers

29.

I see no reason to think he's not being straightforward here.

As Jeff notes, you can also read this as SOE saying it doesn't want to *pay* for a license -- a simple cost/benefit calculation. (As I expained above, viewing it that way actually doesn't make me feel any better about what is happening.)

But re: "After all, they're not in the business of distributing music" -- actually they are.

30.

Aye. I don't question that Torres is being upfront. I cannot imagine that, given the novelty of the circumstances, the cost/benefit analysis favors implementation.

Further, I think the "magic circle" consideration is probably much more determinative, here (e.g. Torres: "To have a player in our game create a song that is Jon Bon Jovi or Metallica would throw people out of the fantasy").

That said, I regret to see very smart people make statements like, "It's sort of a loss all the way around when LucasArts has no ability to get that license and players are left with this rather artificial restriction."

Jeff Cole

31.
Mike Sellers wrote: That is, if SOE provided the ability for players to play musical notes, and some players played copyrighted series of notes, SOE would not, in theory, be liable for any copyright infringement
This statement reminded me of the recent CoH debacle with Marvel. I've always wondered how this would play out. Providing players near-unlimited abilities to be creative risks they'll recreate licensed properties, because they're big fans of them; however, it doesn't guarantee it. In fact, iirc, evidence of "abuse" in that case was tossed when it was discovered Marvel recreated licensed recognizable characters themselves (presumably because they couldn't find enough examples of players doing so in the game ;) ).
Flatfingers wrote: I expect the somewhat grumpy SWG player community not to take an SWG producer at his word, but I'm a little surprised to see the same reaction here.
I think this is because it's a fairly old topic. I wasn't involved in Music back in beta, but the first post-Launch correspondent was heavily involved in discussions similar to this. Every Musician back then had a system for integrating notation software, and some of them probably would have worked :)

In any case, I personally doubt their stance will change. I imagine it costs a lot of money and time to create new music, yet new music has been added since launch. I think the number of selections are fine. I just never agreed with the skillpoint requirements for the class (nor a few others), but that's another (dead horse) topic.

32.

Well, I'm not so sure that Fred is off-base with that "no ability" statement, if you take it to mean simply that the compulsory schemes won't work or that IP law makes this a headache for SOE.

I not quite up to speed on the current framework for webcasting, but I doubt that a webcasting complusory license could be made to work here, even if it could work, it would probably still be cost-prohibitive, given the sheer volume of player performances (And some might be creative, yet infringing -- e.g., SOE must decide if Wookie #3412 was doing something new or if it was covering "Smoke on the Water.") And while negotiating a license with the various societies might be possible, I imagine it would be quite a mess and it wouldn't surprise me if it were cost prohibitive as well.

33.

I dunno if I buy it, Greg. That's an awfully broad definition of "no ability."

I would imagine that these spaces will wind up being licensed much like venues. The webcasting provisions really addresses a different problem.

Jeff Cole

34.

"But re: "After all, they're not in the business of distributing music" -- actually they are.
Posted by: greglas"

This was my first thought on this issue, that sony is a music company itself, therefore any opinions it states on the legality of issues like this are biased by that fact. Sony is well known for being pushy about its copyrights.

It was pointed out that CoH beat Marvels legal challenge, and while that seems at first to win teh debate, it might not since we're talking about two different types of media.

So, I would ask this. Did Yahoo need to worry about copyright infringement when it started its voicechat programs? If not, then Sony is just blowing smoke in the faces of game designers, in my opinion, and id hope that those gamers would pick up the gauntlet thats been thrown down.

Problems with out-of-character music being played would easily be solved by letting players mute musicians they dont like.

35.

Actually now that i turn on Counter Strike i realize just how foolish this is.

Can't touch this naaa nanana nana nana can't touch this!

36.

To clarify: Sony Online Entertainment isn't in the business of distributing music, even if another division of Sony Corp. is.

SOE makes online games, and should probably be expected to focus on doing that, rather than on dealing with music licensing issues (other than what comes from LucasFilm through LucasArts for Star Wars Galaxies, since we're being picky).

That said, it's still easy to imagine SOE's parent corporation saying, "Hey, listen, we've got these artists on our music label we'd like to cross-promote -- maybe you could add some code that lets your players just play tunes to which we already own distibution rights?"

If I were an SOE producer, that's a phone call or email I don't want to get. *grin*

--Flatfingers

37.

The whole problem is that Sony is a music copyright holder. Their hold up isn't the fact that they can't, its the fact that they don't want to. They don't want to give up their own music rights, real or supposed.

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