Guys,


A potential client asked me to host its site, which contains a lot of music files (wave-format). Problem is that these are copyrighted files from famous artists, that are being used to play as a background on people's sites.
Ofcourse at first sight this seems to be illegal, but the files are highly compressed and playing at 24Kbps.
At such a big compression, could it be that this isn't illegal?

What are the risks?

Thank you once again. :)

Originally posted by .::DefCon::.
At such a big compression, could it be that this isn't illegal?

What are the risks?



A copyright is a copyright - compressing the files doesn't change that.

ASCAP, BMI, the RIAA, and other organisations actively look for unauthorized use of copyrighted material on the web, and can potentially sue you into the next time zone.

There are moral and ethical issues here as well. How would you like someone using your site design without your permission? What your customer wants to do is exactly the same thing, only with music rather than with html and graphics.

Your choice, but I'd pass.

-Bob

Originally posted by TMX
Your choice, but I'd pass.

We're talking about a rather big client here (50$/mth), and she has already managed to get hosted at GeoCities.com
She still is, actually. :) That's what made me wonder... :rolleyes:

I think the song copyright does not exclude of how a song is being compressed explicitely. If the original song before it was compressed is copyrighted, then it is still illegal, regardless the compression ratio.

Unless it is royalty free, there will be risk involved. I don't know what will happen if you get caught, but I guess the result can be severe.

We're talking about a rather big client here (50$/mth), and she has already managed to get hosted at GeoCities.com Does Geocities know about this?

Ask the customer to provide a sworn, notarized statement that they have the right and pemission to publish those files and that they agree to hold you harmless.

You would not be libel if you've made a good faith effort to ensure the legality of the content. Even if the content were illegal, you would first get a cease and desist from the attorneys for the copyright holders. You would first respond to them with your sworn statement from the customer. If they say that despite the statement your customer has no right to publish those files, you simply comply with their request to remove the offending material and close the account.

Believe me, the copyright holder doesn't want to spend their time and lots of money in court with a (pardon this next word please, not meant as an insult) small Web hosting provider who wouldn't have the ability to pay any large judgment in any case.

They'll pay more in fees than they'd ever collect, and they know it.

If you act in good faith, you will likely have no problems. I was once threatened and bullied by a "high-powered" outfit using strong-armed tactics and a page full of legal jargon, but since I knew I was acting in good faith, I rebuffed them. As it turned out, they backed off and admitted they had no legal recourse but instead they asked politely that I comply as a favor to their client -- which, since they decided to act in a reasonable fashion, I did.

They knew no court would ever side with them, because I had acted (here are those words again) in good faith. The problem for them and their attorney was that they didn't know that *I* knew that, too.

Steve

So what you're proposing is that I need to ask my (potential) client for a signed document, containing the following:
"a sworn, notarized statement that they have the right and pemission to publish those files and that they agree to hold you harmless" :confused:

In other words, my client needs to send this through Air Mail, and we'll need to wait like a week at least (!) before it arrives here... :rolleyes:

Correct?

I agree with TMX. A copyright is a copyright, end of story. Don't be stupid and try to manipulate it.

Originally posted by .::DefCon::.
So what you're proposing is that I need to ask my (potential) client for a signed document, containing the following:
"a sworn, notarized statement that they have the right and pemission to publish those files and that they agree to hold you harmless"

In other words, my client needs to send this through Air Mail, and we'll need to wait like a week at least (!) before it arrives here...

If you want to accommodate the customer and the customer wants to use your service, yes.

Steve

Originally posted by TMX
There are moral and ethical issues here as well. How would you like someone using your site design without your permission? What your customer wants to do is exactly the same thing, only with music rather than with html and graphics.

How do you know this? How do you know that the customer doesn't have full permisison to use this material?

Steve

Originally posted by Omni
I agree with TMX. A copyright is a copyright, end of story. Don't be stupid and try to manipulate it.

Obviously there is a tremendous lack of understanding of copyright law here. Just because a work in a fixed medium is copyrighted doesn't mean it can't be published, re-published, or even re-sold.

As the executive editor of a monthly magazine, I dealt with this issue almost weekly. There are two courses to take: if Defcon doesn't care about his customer, he can just close their account. If he does, he can educate himself as to how copyrights and permissions work.

Personally, if I ran such a business, I'd want to armed with understanding rather than operate in ignorance. Of course there are some people who actually believe you can get a cold by going outside in cold weather or that you have to wait an hour after eating before swimming, so...

Steve

What you mean you don't have to wait an hour after eating to go swimming? My mother always makes me wait.

Originally posted by Tetraboy
What you mean you don't have to wait an hour after eating to go swimming? My mother always makes me wait.

Nope. And my mom still warns me about not going out in the winter time without a jacket because the cold air will cause me to catch a cold.

As for the swimming:

"From the 1930s through the 1950s water safety experts believed swimming after eating would lead to stomach cramps that would double you over in agony, causing you to sink like a stone. This was thought to be a leading cause of drowning. As late as 1956 the Red Cross water safety manual devoted several pages to the topic complete with staged photo of a gasping "victim."

That same year, however, University of Georgia swim coach B.W. Gabrielsen published a book called Facts on Drowning Accidents that revealed that swimming after eating was implicated in fewer than 1 percent of drownings. Thereafter the wait-an-hour hysteria began to subside. It's now thought stomach cramps are rare. It still isn't a good idea to do strenuous swimming right after eating lest you exhaust yourself. But a quick dip in the pool after dinner is harmless."

Steve

Hmm, you have all raised very valid points.

We have a site hosted here in the UK that is full of copyrighted music. We've said to the client that it's fine but, if anyone complains about it, we'll ask them to remove it.

They're ok about it and we're ok about it. The site shifts over 100Gb per month.

Maybe it's morally wrong, maybe it's legally wrong - but there's a lot of stuff that goes on in this world that's a lot worse! :D

Originally posted by bb99

Maybe it's morally wrong, maybe it's legally wrong - but there's a lot of stuff that goes on in this world that's a lot worse! :D
Following your idea, steal could be wrong, but there's a lot of stuff that goes on in this world that's a lot worse?:confused:

We have quite a few people that ask us if they can host copyrighted stuff, and the answer is an resounding no each and every time.

Defcon, I simply recommend you refuse to host them, no matter what they offer to pay.

Originally posted by voxtreme-matt
We have quite a few people that ask us if they can host copyrighted stuff, and the answer is an resounding no each and every time.

Just out of fear? Have you ever faced having your business shut down over some issue that's caused you to take this position?

Originally posted by voxtreme-matt
Defcon, I simply recommend you refuse to host them, no matter what they offer to pay.

That's one way to go, for sure.

Steve

Originally posted by scslawin


Just out of fear? Have you ever faced having your business shut down over some issue that's caused you to take this position?



One of the reasons is that yes, we don't want our business to be involved in illegal activies.
Secondly, files / data is copyrighted for a reason. We respect that.

Originally posted by voxtreme-matt
Secondly, files / data is copyrighted for a reason. We respect that.

But the point is that, despite copyright, it may be perfectly legal and acceptable for them to publish it. They may have paid a licensing fee to use it. They may have an agreement with the original publisher. They may be a non-profit that has been gifted the rights to republish.

For instance, articles I've written about Internet marketing and such bear my copyright, yet I allow others to republish them on their own Web site.

I can understand how one might be too afraid to allow it, but one must also refrain from the assumption that something is illegal unless one knows for certain or unless you're intent on taking the most conservative route. Thus, I return to the "acting in good faith" issue and putting the burden on the customer.

Steve

Maybe my first post was a little indecisive :)

If they have permission from the copyright holder, then we have no problems with that.

This is a very interesting area... on one hand you are an isp/ops which gives you strong protection from suits against your customer's content. Napster tried to obtain this status but failed, a host on the other hand is pretty much on target for the exact meaning of the term osp (online service provider).

With that said, the protection given to OSP's is nearly unlimited and actually allows you to know about possibly illegal content but do nothing. However, the protection of this act does nto stop the music world from trying to sue you and even if they only go through 1 or 2 levels of court it would cost more than most people would be willing to pay.

I think the most pressing issue is that you know about the copies being made. Had you not known, or not publicly known and thus been able to state you had no idea, it would be nearly impossible for someone to go against you in court. Even with your knowledge, you are still not required to act giving as that as an OSP you are not required to figure out the legal validity of every such client (imagine if AOL was responsible for making sure all its users didn't break any laws while on its service).

On a final note, giving the change in the quality (I'm not really awake so I didn’t think about the specs you listed too long), copyright infringement defenses do include fair use which looks at the amount and quality of a copy. If it was found that the copies were partial and of very low quality (ie a vcr taping of a few minutes of a show) there wouldn't be a good claim. I doubt that that's the case.

My final thoughts, dropping the client is the simple way out... keeping them might get you into trouble but should be something you have a clear and precedent defense to get away from.

PS I am not a lawyer, what I say is only from what I've learned through tech law courses, you should consult a lawyer on this or any advice given before trusting it as legally valid.

Follow up:

While the law may allow you to get away with this that doesn't mean it's moral or a good thinig. Like voxtreme-matt said, I wouldn't take a client on who I knew was breaking copyrights... my TOS forbids it, I forbid it and don't want anything to do with it.

Originally posted by .::DefCon::.


We're talking about a rather big client here (50$/mth), and she has already managed to get hosted at GeoCities.com
She still is, actually. :) That's what made me wonder... :rolleyes:

Do not EVEN go there. Spammers tend to go for the large accounts too when they sign up. You going to let spammers on just because they'll pay? People get away with stuff on geocities all the time until people report the site and geocities gets around to it. Until s/he has written consent by the copyright holder and gets a copy of that to you, don't even consider them a potential client.

By saying it's different because it's compressed, you're opening yourself up for hosting all sorts of nifty illegal stuff. Let's just compress a few highly known pirated programs in some zip files, ace files, rar files, etc.... then it's ok right?

My apologies if I came off as somewhat angered there (though that was weak). The response given with how it's different since they're willing to pay more just bugged me.

Is you ASSUME it's illegal, then don't accept it. Unfortunately, that could be a bad assumption. And just so you know: before any suit was filed you'd receive a cease and desist and be given ample opportunity to comply. Take it from someone who has received such a notice firsthand.

Steve

Originally posted by scslawin


How do you know this? How do you know that the customer doesn't have full permisison to use this material?

Steve

A - I'm a BMI-registered professional musician as well as a web geek, so I try to be at least somewhat aware of what's going on with regard to copyright infringement and the net

B - Had the potential customer been granted permission to use the copyrighted material, it's a safe bet that he/she would have let the original poster know about it, as it's a fairly big deal.

-Bob

Originally posted by JustinK


Do not EVEN go there. Spammers tend to go for the large accounts too when they sign up. You going to let spammers on just because they'll pay? People get away with stuff on geocities all the time until people report the site and geocities gets around to it. Until s/he has written consent by the copyright holder and gets a copy of that to you, don't even consider them a potential client.

By saying it's different because it's compressed, you're opening yourself up for hosting all sorts of nifty illegal stuff. Let's just compress a few highly known pirated programs in some zip files, ace files, rar files, etc.... then it's ok right?

My apologies if I came off as somewhat angered there (though that was weak). The response given with how it's different since they're willing to pay more just bugged me.

This isn't a SPAM client, I've seen her site myself.
It's a site that offers html codes for (newbie) webmasters to put on their websites. Their visitors hear a song each time they visit the site. All music hosted is for that purpose only. Not for downloading or anything (ofcourse people can do so), but to let it stream of'f our server to her "customers"/newbie-webmasters' sites.
I see nothing wrong in that. :)

Originally posted by .::DefCon::.


I see nothing wrong in that. :)

Apart from the fact it's illegal :rolleyes:

Yes, ofcourse. Apart from that. :D
No, seriously. I know this may be no good, but I've decided to give it a go. I mean; we'll see what happens. After the client's first month at GHS I will evaluate the situation, and make up my mind then. :cartman:

If you don't play, you can't win. (nor lose, ofcourse. :rolleyes: )

Well you may be $50 up, but I doubt it has done your reputation any good...

We'll see, Matt, we'll see. ;)
Thanks for your concern, I really appreciate that. :)

Originally posted by voxtreme-matt
Apart from the fact it's illegal

Or so you assume.

Steve

Originally posted by TMX
B - Had the potential customer been granted permission to use the copyrighted material, it's a safe bet that he/she would have let the original poster know about it, as it's a fairly big deal.

No, it isn't a safe bet at all. It's very FAR from a safe bet.

Do you suppose that every Web designer who has bought images from Getty Images to use on their Web site has notified their hosting company providing them the details of their purchase? I can answer this definitively: no.

Does every webmaster who purchased a CD full of clip art contact their Web hosting company and show them their license for the images they're putting on the site? Again, I can answer this with 100% certainty: NO.

As someone who has routinely purchased copyrighted material for publication, as well as being someone who has also PROVIDED copyrighted material for publication, I can safely say that the issue of rights doesn't often get discussed until rights are CHALLENGED. Someone claims the stuff is being used illegally, the Web host contacts the client and asks them to provide a valid license, and if they can't the host shuts down the site.

That's how it works. No court in the land would hold the Web host responsible if they acted exactly in that manner. It would never get even close to a court.

But with all of that said: if you KNOW FOR ABSOLUTELY CERTAIN that what they're doing isn't LEGAL, then DON'T ALLOW IT. Period.

Steve

Originally posted by scslawin

No, it isn't a safe bet at all. It's very FAR from a safe bet.

If the customer would go through the trouble of telling the original poster about having copyrighted music on her site, she wouldn't then forget to mention that she had obtained the rights to use that music if she had in fact obtained them. That's not something that slips your mind, which was my point.

Do you suppose that every Web designer who has bought images from Getty Images to use on their Web site has notified their hosting company providing them the details of their purchase? I can answer this definitively: no.

Of course not, but then again Getty Images isn't represented by powerful performing rights and lobbying groups such as the riaa, bmi, and ascap. These are big guns with deep, deep pockets, who are actively looking for people to make examples of.

When pirated artwork starts getting the attention that pirated music has, we just may well see hosts asking for proof of ownership or licensing agreements.

I can safely say that the issue of rights doesn't often get discussed until rights are CHALLENGED.

Correct, however the lack of such a challenge doesn't suddenly make it OK to host something you know to be illegal - which was the original point of this thread.


But with all of that said: if you KNOW FOR ABSOLUTELY CERTAIN that what they're doing isn't LEGAL, then DON'T ALLOW IT. Period.


Amen.

-Bob

Originally posted by .::DefCon::.


This isn't a SPAM client, I've seen her site myself.
It's a site that offers html codes for (newbie) webmasters to put on their websites. Their visitors hear a song each time they visit the site. All music hosted is for that purpose only. Not for downloading or anything (ofcourse people can do so), but to let it stream of'f our server to her "customers"/newbie-webmasters' sites.
I see nothing wrong in that. :)

I didn't say she was. I was asking if you'd let spammers get away with the same stuff just because they might be willing to pay for a larger plan. It doesn't matter the purpose, it isn't their music to play. It's like a commercial. The commercials don't just get to use whatever they feel like, they have to strike a deal and get permission. By doing this, you're putting everyone of your clients on that server at risk if for some reason it gets seized for having illegal content. Now while that may be a rare occurance, by knowingly putting her on that server, you've upped the odds.

Stop trying to change DefCon's mind, it'll just turn into an exercise in stupidity. He's a lost cause.

Originally posted by Jeff Rambo
He's a lost cause.
:bawling:
HEY! :mad:

Originally posted by TMX
Correct, however the lack of such a challenge doesn't suddenly make it OK to host something you know to be illegal - which was the original point of this thread.

I disagree that this was the point of the thread. If you read the first post, Defcon was clearly questioning whether the use of the material was possibly legal or illegal.

In response to that question, I say that you should never host illegal materials if you know them to be illegal. However, if you have a client who wants to host files that you don't know to be illegal but you think COULD BE illegal, your recourse is to either refuse or to have the client provide proof of the legality and accept the burden if someone shown later to be illegal.

Steve

Just ask your client to get an ASCAP license or show you somthing similar. It's not wrong to explain your questioning to this client.

Yes, you're lost cause. You ask what the risks are and still go off on your own accord. You wasted the time of these people who responded to you as you were going to host the site regardless of the answers you received, as that is obviously the case seeing as to how the responses are in the negative yet you still stated you'd host the site.