Is it ok to set up a private music website without royalties? Suppose that there is a private band. They occasionally record covers for the fun of it, they don't distribute, sell, or perform live so don't require any permission / royalties for their covers. Suppose that they want to set up a music website where they can upload their covers of other people's copyrighted songs. The website will be private and only friends / family will be given a login to listen to their music if they wish. The general public can't register and listen, it's an invite only basis. There's no fee for using the website. They don't want to sell the music or sell any subscription. This is for personal use only and registrations are manually approved to ensure only invitees can log in. Legally, is this ok? The research I've done points to the song author only needing to be paid royalties if the record is distributed or sold to the public.
Technically, this is infringement Overview of US law In the US, Playing copyrighted music in a private setting for personal enjoyment and practice does not require any license or royalty payment. However, uploading recordings in which copyrighted music is played so that others, even a small invited group, could download copies and could, if they choose, distribute them further would be copyright infringement if done without the permission of the copyright holder. In the US such permission could be obtained with a &quot;mechanical&quot; license, which requires payment of a statutory fee. Or it could be requested directly from the holder or holder's agent, in which case the terms would be whatever the holder will agree to. Making recordings of a copyrighted musical work, even if they are not distributed, also requires permission (which can be obtained through a compulsory &quot;mechanical&quot; license or directly). Cites to US Copyright Law 17 USC 101 says: To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 USC 106 lists as among of the rights which a copyright holder has: (1) to reproduce the copyrighted work in copies or phonorecords; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 17 USC 115 covers &quot;mechanical&quot; or &quot;cover&quot; compulsory licenses. Practical Considerations Given that the web site will be on an invite-only basis, it is likely that the copyright holder would never learn of it. Even if the copyright holder does learn, many holders would not consider filing suit, which would involve court fees and legal expenses, in such a case. If no fees are being charged, and the market for the copyrighted work is not harmed. the likely damages even if a suit is filed and won, are relatively small, so a suit might well not pay off. But some holders would sue on principle, and there is no way to know in advance who would or would not. There would be an element of legal risk in putting up such a web site. Other countries The above is all based on united-states law. I believe that the law would be similar in most countries that have signed the Berne Copyright Convention, but the details would differ.
If you used some creative work of mine without my permission (I'm the copyright holder, and you have no license giving you permission) then I can sue you to make you stop using my work, to get payment for damages, and to get payment for statutory damages. If you used my work because someone else told you wrongly that you had a license, that's very unfortunate for you, but is no reason why I wouldn't or shouldn't sue you. Obviously in this situation that third party did something badly wrong. I can sue both of you together to make sure that I get payment from whoever has deeper pockets. You can also sue that third party if you think that their lying, or being mistaken, about a non-existing license caused you damages, or if there is a contract or something that makes them responsible.
In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage.
You can put anything you like in a ToS document, but not everything you might put there will be enforceable. By posting something on the web, you are inviting anyone to read it. In some jurisdictions that may include the right to make and store a personal copy, although not multiple copies or a copy for commercial use. You can taker technical measures to prevent automated access and automated downloads (scraping). There was a case (hiQ Labs, Inc. v. LinkedIn Corp, 938 F.3d 985 (9th Cir. 2019)) in which access restrictions were held binding in a US court, but in that case the site owner had notified the would-be reuser (a competitor) directly. The laws on this sort of thing may differ from country to country, and are not as well-settled as older parts of the law tend to be. The question asks: can I list in my terms of service that all users acknowledge I own their posts ... The only way in which the host could &quot;own&quot; the posts would be if the users transferred copyright to the host, or granted the host an exclusive license. Under US law this would take a written and signed document. Clicking an &quot;I agree&quot; box or button might constitute a valid signature. A statement that &quot;by using this site you agree ...&quot; would pretty clearly not. You might prohibit bots copying from your site and posting duplicates, but to prohibit users re-posting their own messages elsewhere is harder, legally, and leas reasonable in my view. Under US law you could not actually file suit for copyright infringement until you had registered the copyright, but that is not true in many other countries.
What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a &quot;clean room&quot; design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for &quot;fundamentals&quot; may not get you anywhere.
Maybe. It might fall under &quot;fair use&quot;, which overrides the general requirement to get permission. The way to find out is to do it, get sued, then try to defend your action by using the fair use defense. If they win in the lawsuit, you can't, if you win, you can. There are four &quot;factors&quot; that have to be &quot;balanced&quot;, plus a fifth. The factors are &quot;the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes&quot;, &quot;the amount and substantiality of the portion used in relation to the copyrighted work as a whole&quot;, &quot;the nature of the copyrighted work&quot; and &quot;the effect of the use upon the potential market for or value of the copyrighted work&quot;. The fifth consideration is &quot;transformativeness&quot;. W.r.t. purpose of the use, your use would likely be found to be &quot;fair&quot;, except for the Youtube monetization problem. The &quot;nature of the copyright work&quot; question is primarily about &quot;artistic works&quot; versus &quot;factual works&quot;, so it would depend on what you are taking from. One second might not be substantial, unless that one second is the only reason people pay to watch the copyrighted work. That interacts with the substantiality desideratum: could people get the crucial amusement content of the paid work for free by watching your video? You can read some case law in the links here, and you basically have to get an attorney to analyze your plans to tell you what your risks are.
The crucial limitation is 17 USC 106(4) which gives the creater of the work the exclusive right to authorize in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly You can play music copyrighted privately, but not publicly, without a license. Look at the definition of public performance in 17 USC 101: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
DRM-free is not license free. DRM is just an attempt to enforce copyright licenses via software. DRM will theoretically prevent you from playing the music unless you have a license that allows you to play it. The lack of DRM it doesn't mean you can do whatever you want with the recording. It just means that any violation of copyright rules will have to be settled using the legal system. If the copyright holder finds you offering their music for replay without a license to do so, they can take you to court to make you stop. Bandcamp and other distributors have negotiated a contract with the musical artists and other copyright holders to offer their music for replay on their site. If you want to legally offer music to which you don't hold the copyright for replay on your site, you too will have to negotiate a license with the copyright holders.