In the past weeks I've had support calls for engaging in hosted telephony configurations, and I saw through the eyes of the provider as they demonstrated through a WebEx session the process to load music and message-on-hold recordings to their platform.
My question was: "Do you inform your customers not to upload unlicensed music files for music on hold?"
I thought this would yield some canned answer, but instead I heard youthful logic.
The rep stated that since the person purchased the CD or iTunes song, they have the right to use the music. So I asked, "Does this give them exclusive rights to use their purchased music however they want?" The rep stated, "The customer purchased the music!"
Finally I said to the rep, "So you don't think this violates US copyright or Intellectual Property (IP) rights?" She replied, "No, people have been downloading music from the Web for years."
For anyone with doubts, let me introduce you to BMI and ASCAP.
BMI--Broadcast Music, Inc. (BMI) describes itself as follows:
"[BMI] collects license fees on behalf of the more than 550,000 songwriters, composers and music publishers it represents, and distributes those fees as royalties to members whose works have been publicly performed. As a performing right organization, or PRO, BMI issues licenses to various users of music, including television and radio stations and networks; new media, including Internet services and websites and mobile technology businesses such as ringback providers; satellite audio services like XM and Sirius; nightclubs, discos, hotels, bars, restaurants and other businesses; digital jukeboxes; and live concert venues."
ASCAP--The American Society of Composers, Authors and Publishers (ASCAP) describes itself as follows:
"A membership association of more than 450,000 U.S. composers, songwriters, lyricists, and publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership. ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music."
As for purchasing iTunes songs and using them for your music-on-hold (MOH) source you can purchase "royalty free" iTunes songs here.
Now as for any legal theories or interpretations of law, IP, copyright, etc.... I'll leave that to the experts. I think the theory of "No, people have been downloading music from the Web for years" is akin to that old theory that, "You don't have to pay federal income tax since it is prohibited by the Constitution." In either case you really need to think about what you do before you do it (or refuse to do it).
Music and message-on-hold is just one area that potentially compromises a customer telephony solution by putting the customer at risk for liability down the road. The rep I spoke to isn't an isolated case; for one she is correct in noting that, "...people have been downloading music from the web for years." Customers often argue against paying for MOH systems and fees for music/message recordings. There are many perceptions about music and its use. There is an excellent book review by Michelle Lee on Joanna DeMers' book, "Steal This Music: How Intellectual Property Law Affects Music" here.
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