Behind the Music with the RIAA

A frank discussion of copyright realities in the new millennium as it appeared in the July 2004 issue of Mobile Beat magazine (www.mobilebeat.com).   Reprinted with permission by Mobile Beat Magazine.

At the 2004 Mobile Beat Las Vegas show, I hosted a seminar session that was held to discuss copyright issues as they relate to DJs, with John Langley of the RIAA (Recording Industry Association of America). It was a unique opportunity to clear away some of the continuing misconceptions about intellectual property rights that have been stirred up anew in this age of easy MP3 downloading, storage and playback.

Langley is the Senior Operations Supervisor Agent over the western region of the U.S. He has been with the RIAA for over 20 years and has seen the growth of the organization firsthand. Previously with the Canadian Royal Mounted Police for 17 years, he was instrumental in the development of the current AVLA license for DJs in Canada. 

Copyright Basics 101

After a brief introduction, Langley presented some copyright essentials that every DJ needs to know:

• Piracy is THEFT! Only 8% of all CDs break even, only 6% make money.

• Every year, the recording industry’s piracy losses are $350 million in the U.S. and almost $3 billion worldwide. The industry is down 33%, due mostly to piratical activities, much of it online. For example, illegal CDs of Jay-Z’s The Black Album were easily available on the streets of Los Angeles three weeks before it was released to the public.

• Who does piracy really hurt? All of us. We are all in the music industry. When you steal music you hurt yourself. Because of the nature of how our industry works—for instance, the fact that pool services can’t satisfy all our needs, such as older, classic party music—we must buy retail CDs.

Watching the Commercials

The main issues revolve around commercial gain:

1) Direct Commercial Gain – This would be where you are actively selling musical recordings. It includes selling duplicated CDs or CDRs, as well as selling hard drives with recordings on them. These are illegal activities. Period.

2) Indirect Commercial Gain – An example would be if you were creating CDs for clients or guests and giving them away as “CD favors.” This is a clearly illegal activity and should NOT be engaged in, in any fashion. Even if you are not selling them, the benefit derived from using these CDs as an enticement to book your services is indirect commercial gain. The same concept applies to DJ “mix CDs”— you cannot sell them or give them away to promote your services or talents.

The Lowdown on Downloads

From the RIAA’s perspective, download services such as Kazaa, Bearshare and other P2P (peer-to-peer) filesharing services are illegal. While the legality of the actual services is yet to be decided by the courts, NOTHING can be done to make the sharing of unauthorized materials legal.

Quite a lot of media attention has been directed at the 12-year-old girl who was sued by the “big, nasty” RIAA. Here are the facts: She had almost 11,000 tracks on her computer AND her system was also online 24/7, with all those files available for download by P2P users. Her computer had logged over 28,000 tracks downloaded by others from her hard drive. Was she a knowing infringer? Yes. Did she know that she was vending 28,000 files? Probably not. But ignorance is no excuse in the eyes of the law.

Do the math. The lost revenue would have paid artists, producers, engineers, secretaries, and many others who work in the music industry as a whole. If you download illegal tracks from an illegal source you have a problem. They are illegal and always will be. If you use these in your business you have a problem.

Most people found to have illegal recordings will receive a “cease and desist“ letter before any other actions are taken. Correcting the situation and removing the offending materials from your possession will generally result in no further action.

Direct Access

The following are excerpts taken directly from the seminar, where John Langley answered some essential DJ questions about copyright issues.

Q: Is it illegal to buy music from the pay-per-download services?

A: No, as long as the source material is legitimate and there is no serial duplication—and as long as you can demonstrate that you have done your best to pay a royalty and comply with the law.

Q: Can I convert my legimate CDs to MP3s?

A: As long as there is no serial duplication,* you should have no problems.

[Editor’s note: serial duplication refers to making multiple copies of a file to use on multiple systems.]

Q: Can I convert or compile my CDs down to CDRs to reduce the volume of CDs I carry to an event? 

A: Again, as long as you retain possession of the source material and there is no serial duplication, you should have no problems.

Q: Has any event ever been stopped and the DJ arrested for using illegal music?

A: No. Claims to the contrary are just not credible and should not be believed or listened to.

Q: A DJ has been in business a long time. He has a library that he has converted and has also purchased several hundred tracks. He has sold his DJ business with MP3s but has kept the originals from which the MP3s were made. Is this legal?

A: No. When you sell a computer system, I suggest that you erase the hard drive.  That, or make sure that you have supplied all the original source recordings from which the MP3s have been made. This would mean a complete chain of custody transfer, to the new owner, of those original recordings.

Q: A number of companies have come forward with services offering to sell you hard drives with MP3s on them, based upon signing an affidavit that you have the originals. Is this legal?

A: Not a good practice. Those doing this are taking large risks, since anyone can sign an affidavit stating anything. Without proof, the risks are large and not worth it.

Q: There are also services that will provide MP3 conversion services for you, if you send your CDs. Is this legal? 

A: I feel that it is a very risky proposition. It is a very gray area. They have a commercial gain from the transference of sound recordings. That is an issue.

The main issue is loss of your chain of custody over your CDs. This gives you exposure. You should maintain direct control over your original libraries.

Q: There are companies around the country that are circulating letters to venues telling them that they could be sued for the actions of a DJ using MP3s and CDRs. Do the venues have any liability?

A: No, they do not. They are welcome to contact me at the RIAA. I will tell them that they have no exposure.

Q: Do you feel the RIAA has used heavy-handed tactics in seeking data about people downloading off the web, using loopholes in the DMCA?

A: There are no loopholes in the DMCA. These are the tools that are there for us to do our jobs and protect the property rights of our members.

Q: Do you feel the slide in CD sales is due to the popularity of online download sites or to the general lackluster quality of music being released?

A: Both. The issue comes back to how few CDs actually break even, let alone make money. The labels are not going to invest $600,000 to put a CD on the market that will only have a 2% chance of being profitable, knowing that it will be pirated. They are not spending the money in artist development that was once spent.

Q: Do you feel the RIAA Amnesty policy, called “Clean Slate” (www.riaa.com/pdf/cleanSlateDesc.pdf) will protect someone from a 3^rd party? 

A: The issue is that it doesn’t protect you from a 3^rd party action.

Q: I have an ASCAP license. Will this allow me to make CD recordings for sale or use in the promotion of my business?

A: No. ASCAP only covers and compensates the songwriters and composers for the public performance of their works. It does not entitle you to make derivative recordings for sale.

Q: How can DJs get out of the gray area of music use?

A: Don’t steal. Don’t use piratical materials. Have original source materials. As long as you have original source materials you should not have a problem. We are not here to make your job difficult, or to restrain you from using the technologies that we know you will use anyway. Our job is to work with you, to encourage DJs to always obtain their music from legal sources.

For further information you may contact John Langley at jlangley@riaa.com. To report someone breaking the law, call 1-800-BAD-BEAT. You can find the online text or PDF versions of the Digital Millennium Copyright Act (H.R. 2281 or Public Law 105-304) at http://www.access.gpo.gov/nara/publaw/105publ.html.

Music Rights—Listen and Learn

Hear the candid discussion with John Langley in its entirety on the tape, “Music Rights in the New Digital Age”—the latest addition to Mobile Beat’s Ultimate Instructional Library, tape #90. You can find the complete listing of The Ultimate Instructional DJ Library on Audiocassette at www.mobilebeat.com under the DJ Library tab or in the back of any issue of Mobile Beat Magazine..