Botany 500, a Philadelphia-based DJ, rents iPods full of custom music mixes to local restaurants, stores, and salons to play through their sound systems.
Armed with a small fleet of iPods, Porter's embarking on a one-of-a-kind business venture: filling the little mp3 players with a specially created musical catalog and renting them out to area businesses. "Instead of going in with my vinyl and DJing for four hours, I can DJ for them for the whole month." As far as he knows, he's the first to come up with this particular business model.
(…)
"He makes it easier for us," says Adriatica bar manager Albert Gotto, who is glad not to have to change CDs anymore. Now finding the right mood is painless. "We can kick it up a bit after dinner. It's a very convenient service.
IANAL, but it would seem that there are a number of problematic legal issues here with regard to rights clearances. Any lawyerly BoingBoing readers care to comment? Update:Reader Joe Hughes points out this snip from the story: "Because many businesses already pay licensing companies like ASCAP and BMI for the right to play the radio in their establishments, Porter doesn't have to worry about licensing issues. And most places already have some kind of sound system in place, meaning they just have to plug the iPod in and press play."
Update II — Not so fast. Fred Von Lohmann of the EFF replies:
"This one is such a tangle that it'd make a great exam
question in a law school copyright class. Let's break it down:
For Mr. Porter:
(1) he's making lots of unauthorized reproductions, potentially
infringing both the musical work and sound recording rights embodied in
each song. Is it a fair use? It would be a fair use to rip your own CDs
for personal use on the iPod, but does that mean you can then start
renting out the iPods? Well, it's commercial, it's the entire work, and
each work is creative. That's three strikes against him. Does it harm
the market for the works? That's a bit harder, although copyright
owners can argue that this activity makes it hard for them to enter a
nascent licensing business for this kind of activity.
(2) Once he's made the reproductions, he's distributing them. Rental of
sound recordings and the music works therein embodied, even if lawfully
made, is forbidden by section 109(b).
(3) If he rents them to any merchant, knowing that they do not have the
necessary performance licenses, then he might be a contributory
infringer, as well.
How about the merchants?
(1) Assuming they have the necessary performance licenses
(BMI/ASCAP/SESAC), they are covered for public performance of the
musical works. I don't think they need licenses for performance of the
sound recordings, since this is not a performance by digital
transmission.
(2) The merchants are not making copies or distributing them. Mere
receipt of infringing good is not illegal under copyright law.
(3) But if Mr. Porter is violating copyright law, and the merchants are
working with him to choose the music and the like, they might be
contributorily liable for his activities.
Given the number of works in question, at a maximum statutory damage
amount of $150k per work, Mr. Porter could easily be on the hook for
tens of millions in damages. I'd say Mr. Porter needs a very good copyright lawyer."
Update III: DJ Botany 500 responds, in the Discuss board for this post: "The City Paper article kind of blew it up before the project really started. I am doing this for the love of the music not money, I am not putting 50 Cent or Destiny's Child in the mix, and I'm trying to expose noncommercial music. This project has been conceived by a DJ/Independent Record Store Owner not to replace DJ's or steal music, but to turn a wider audience on to better music locally."
Link to Philadelphia City Paper story, Discuss (Thanks, Mark)
