While we were enjoying the block party last night we were approached by a very nice lady from SaveBuckroe.com. The city of Hampton owns the land surrounding Buckroe Beach, it is public land, and recently the Hampton City Council voted to rezone the land surrounding the beach so that it would be made available to public developers. Save Buckroe feels that such development would be detrimental to public access to the beach and have filed a petition to overturn the Council’s decision. They have until July 10 to gather 4500 signatures. If they are successful the ordinance would be suspended and subjected to a public referendum during the next general election.

Save Buckroe are looking for Hampton residents who are registered voters to sign the petition and stop the public Buckroe Bayfront park from being turned over to developers. They are also looking for volunteers to help gather signatures. Help us support them by spreading the word and encouraging others to sign the petition so that this beautiful area can be saved for public use.

Via @HRMusic and @PilotNews comes this article about Suffolk bar owner Randy White’s troubles with the American Society of Composers, Authors and Publishers (ASCAP), which distributes licenses for bars, restaurants, TV and radio stations to perform members’ songs, and distributes royalties to songwriters.  In August 07, ASCAP employees visited White’s bar, Randzz,  and caught cover-band performances of several songs written by ASCAP members. The organization later contacted White to purchase a license, which he refused. ASCAP sued, and this past May a judge found White guilty and liable for over $14,000 in damages.

Many bar owners, and no doubt many people in general, are not aware of the licensing fees that businesses have to pay just to have the radio playing in their establishment. Just as sports bars have to pay additional fees to allow public performances of pay-per-view and football, baseball and &c., bars, restaurants, coffee shops are liable for fees if ASCAP/RIAA agents catch loud music playing in a public place.

To ASCAP’s credit, they did approach White to get him to pay for a proper license. He refused, calling the claim ‘bogus’. He apparently thought that it was a scam and that he could just ignore it without ramification, as White never hired a lawyer or responded to the court in any way. (EMI Music et al v. White) He apparently thought if he ignored the lawsuit it would go away. We hope he has better luck with that tactic in the future.

Here’s some other examples of recent lawsuits from ASCAP:

• 1996: ASCAP files against the Girl Scouts and the Boy Scouts for songs performed by Scouts at camp. Amidst a firestorm, ASCAP retracts their lawsuit, stating it never was their intention to collect fees from the two organizations.
• August 2, 2007: ASCAP files 26 separate actions against nightclubs, bars and restaurants in 17 states, including Jay-Z’s 40/40 Club, the Hiro Ballroomm and Fusion 215.
• December 14, 2008: ASCAP sues Patrick’s Pub, a Rhode Island Bar for $120,000 due to copyright violations . The owner settled earlier this year for $14,000, to be paid out over a 3 year period. The pub’s owner originally thought that the ASCAP request for license was a scam.
• October 07:  While not directly related, the UK based Performing Right Society (their version of ASCAP/RIAA) filed suit against auto-body repair shop Kwik-Fit for numerous violations of employees playing music which could be heard by coworkers and customers. The PRS claims that playing broadcast radio constitues a ‘public performance’ and sued for over £200,000. I was unable to discover the results of this lawsuit.

To be fair, ASCAP does allow broadcast radio to be played (see #15) so long as certain circumstances are met, one of which is that there is not a cover to enter the business.

To go back to Mr. White’s lawsuit for a moment, his defense was that the bands themselves should be responsible for licensing, not the bar owners. From ASCAP’s take, and the one the judge apparently sided with, reads:

“Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business.”

ASCAP has several agents active in the Hampton Roads area who are responsible for finding all the newly opened bars and making sure that they are in compliance. Mr. White did not do his homework and is now paying the consequences, just like the owner of Rhode Island’s aforementioned Patrick’s Pub. From the judgment, p.15: “‘Courts have repeatedly emphasized that defendants must not be able to sneer in the face of copyright owners and copyright laws.’ […] Rather, the defendant must ‘be put on notice that it costs less to obey the copyright laws than to violate them.’” Further in the document: “Plaintiffs have shown copyright infringement based upon a live band performing three copyrighted songs. The very nature of the kind of infringement suggests irreparable harm. Once a song has been played and heard, it is difficult to conceive of how such harm can be remedied – short of an effort to award damages.”
The law is very clearly on ASCAP’s side, and while we are not as bad off as the UK under the PRS, these lawsuits do point out the broken nature of America’s copyright laws. Indeed, a $1500 a year license seems like a small price for a popular establishment to pay for a year’s worth of all the music they can play. The problem lies with whether or not non-licensed performances of copyrighted music constitutes ‘irreparable harm’ to the copyright holder. One might argue whether or not a person like Beyonce or Tom Petty suffers when garage bands play their songs at dive bars, or whether Alica Keys is slighted when a bed and breakfast plays her CD for ambiance in the lobby. My take is that they do not.

Lets stop for a moment to consider how ASCAP distributes royalties to their members based mainly on the results of radio playlists. Local artists who’s work is being performed but not broadcast locally get excluded from these surveys .This means that of the hundreds of millions of dollars that ASCAP collects for their members, a majority of that money goes to the top played artists on national radio. There is no mechanism in place to guarantee that the money will go to the actual artists who’s work is performed. In fact it is probable that a vast majority of ASCAP members never recieve any substantial royalties.

A similar thing has become apparent to many popular artists in their dealings with record labels. The cost of doing business with them has become increasingly less beneficial to the artist, instead primarily filling the coffers of the label. As artists like Radiohead, Trent Reznor, and the Dresden Doll’s Amanda Palmer have discovered, it is substantially more in their benefit to bypass the record labels completely and deal directly with the fans. Direct web sales and those through iTunes see a significantly larger amount of money back to the performer than via traditional CD sales in brick-and-mortar stores. ASCAP has recognized this and filed a lawsuit in 2007 to make digital downloads ‘public performances’, allowing them to charge licenses to website operators and bloggers who post music on their sites. These fees threatened to shut down sites like music recommendation engine Pandora.com, which almost had to shut down last year over the fees.

Business owners should be aware of the responsiblities that they have. Any live music played in a public place, whether via an open mic night cover song, or a patron’s CD played over the house stereo, may put you at risk of liability against either ASCAP, BMI, or the RIAA. If you are ever approached by agents of these organizations about a license, consult a lawyer and consider paying the license fee each year as a cost of doing business, as it will be cheaper than being found guilty of infringement. Randy White only faced a total of 3 counts, or about $9000.  He could have faced numerous additional counts against him, as the ASCAP catalog totals more than 8.1 million songs.

Most musicians may not be aware of these licensing deals and should be aware. You may want to start checking with your booking agent to make sure that the locations that you play at are licensed. In the few examples that I have given, it has been the establishment owner that has been hit with the lawsuit, but if the ongoing efforts of ASCAP, BMI and the RIAA continue, it will just be a matter of time before they change their tactics to target the performers themselves.

As a warning to music lovers, and also to point out just how broken copyright law is, I want to point out this web page called Unhappy Birthday. Did you know, that if you, as a customer,  sing Happy Birthday in a public restaurant, you are subject to the public performance license? If the establishment that you are in is unlicensed as Randzz is, the owners are subject to fines and penalties. Pretty crazy, isn’t it? The Unhappy Birthday site may be tounge in cheek, but it is pointing out the truth of the matter.

The easiest solution to get out of paying licensing authorities is simply to stop playing their music. If organizations like the RIAA want to continue their heavy handed tactics against their fans, the best thing we can do is to abandon their customers. There is enough free music available from unknown, undiscovered, indie artists to fill the airwaves of a thousand radio stations. There are hundreds of artists creating quality work, releasing their music for free, who would love to get some exposure via public performances. What the big giants like ASCAP have yet to realize is that thier old models don’t work anymore. You will still have the mainstream commercial big names like Brittney and Lady Gaga and the likes, but most musicians these days recognize that the way to survive is not via song sales, but by performing. Touring and merchandise are the bread and butter of the modern-day emerging artist, with direct to the consumer digital downloads or cd sales for the true fans that want to support the artist. You have to give away a lot of music to make it big these days, and the little guys aren’t concerned with whether someone paid the ASCAP licensing to play their music, they’re just happy that it got heard.

“I like paying taxes. With them I buy civilization.” — Justice Oliver Wendell Holmes.

I couldn’t just let this wonderful day pass by without a few choice words about the Tea Parties going on today. I’ve been watching the interwebs/twittersphere with amusment at all the teabagging jokes going around today. Also I’m amused at all the people taking this shit seriously.

I mean come on Wonkette is having field day with this!

So is Gawker.

I was watching the local Twitter results today and noticed a few people talking about attending the local tea parties around Newport News Town Center and Virginia Beach. I was half tempted to drive on down there during my lunch break to check it out and snap some photos. I’m sure it would have been fun.

It’s highly amusing to witness the the right wing hysteria that has accompanied Obama’s few months in office. These are the same people that stood by silently for 8 years while W ran this country into the ground, and now Obama’s been ni the White House for 10 weeks and they’re going apeshit. Here’s a little fact check for you: Obama’s proposed tax rate for the wealthiest Americans will still be lower than what it was when Regean was president! Here’s a chart in case you’re slow:

And as ProgressNotCongress notes, the funniest thing is that it is the middle class out here acting outraged at the bidding of the superwealthy, Fox News, and the GOP. They’ve let 8 years of war, no-bid contracts, and destruction of science, environmental and constitutional rights go by without a squawk and have gotten riled up at a massive liberal spending plan for education, healthcare and energy. Of course there’s the bank bailouts to be mad about, and these people probably think TARP’s all Obama’s fault as well. While I’m not a huge fan of the bailouts per se, the President believes that one dollar given to the banks get’s spent 7 times over in the larger economy.

My high school government teacher, Mr. Tenny, used to have a sign up in his class that said “The richest 10% of the population controls 90% of the wealth.” These same people are now inflamed because they pay 72.4% of the tax revenues. Outraged that those making less than $44K a year only pay a collective 3.3% of the total tax burden each year, they go out of their way to hide their income in tax shelters, charitable deductions, and spend hundreds of millions on their lobbyists to get the tax rules changed to benefit them, their bank accounts, and the corporations that they work for.

What’s sad is the sheer number of middle Americans that have gotten swept up in this hysteria. We saw the beginnings of it during the election cycle as people bought into the Obama-is-a-secret-Muslim propoganda that still survives to this day. The right wing hype machine stirs up a little outrage and the 43% of the population that watches Fox News gets whipped into a rabid frenzy. I understand that most of these people are acting in their self-interest, I feel that it is the result of a the deluded propoganda that they have been exposed to and that they are actually serving the best interests of the right wing elites.

To give you a similar example from (not-so) recent American history, look to the situation that existed in the runup before the Civil War. The slaveowners in power realized that if the lower class were to side with the slaves, it would be the catalyst for a massive revolt and uprising against the slaveowners and status quo. Accordingly, institutionalized racism was used to stir up the us vs. them mentality and discourage white working classes from socializing and empathizing with the slaves. What does that have to do with today’s events? It is analogous to the division of the middle class against the impoverished and lower income populations of this country and the alignment of them with the upper class.

The original Boston Tea Party was a protest over taxation without representation. Today’s tea party seems to be just about taxation. While a lot of the people that turned out today are protesting against sincerely held beliefs and outrage over the bailouts, I suspect that the real agenda is to align the upper middle class with the super-rich and preventing centrist, middle-of-the-road America from pursuing a more progressive, liberal agenda that favors the disenfranchised.

Reality is purported to have a liberal bias. Today’s teabaggers are so far out of this plane of existence, deluded and frightened that America is going to turn into a welfare state where everyone who works for a living has to pay rent for those to lazy to go out and get a job. What would they instead advocate for, a me-first apocalypse wasteland of militias holed up in compounds waiting for the End of Days while the rest of the world burns?

Last month some of these people were complaining that Obama’s tax stimulus amounted to an extra $13 dollars a week or so. Now people are complaining that Obama will have to raise their taxes down the road by a similar amount to pay for the stimulus that was just passed. What they don’t understand is that they’re leading the call of people for whom a change in the tax rate means millions of dollars. As someone who just paid over two month’s salary on last years taxes I can understand a bit of the outrage that the teabaggers are feeling. I feel that a lot of it has been drummed up by disinformation and propaganda, and unfounded fears of America turning into a European Socialist state.

There has been an imbalance in American society toward wealthy individuals and corporations over the past few years, a preference toward wealth building over quality of life and basic government services. One of Obama’s main strengths is his activist (read radical) and community organizing skills. He showed exactly how to rally a class of disenfranchised people toward a common cause, and he has used that power to pass revolutionary spending plans in education, healthcare and energy infrastructure. Conservatives hate this, and so they have used their own community organizing to create their own movement.

Too bad it looks pathetic.