View Full Version : When you're on hold and you hear the local rock station....who pays?
04-09-2003, 02:03 PM
I'm living on hold with the local Nissan Dealer. They keep putting me on hold. And yet in true Doper fashion, instead of ranting I wil ask a real question.
When some company like my car dealer uses the local radio station for a Hold Call, do they have to pay to use it? It's not Muzak, so let us not travel that seamy path. This is my real local rock and roll station, being used in realtime while I am on hold.
How does that work? Do they just steal the signal and import it into their phone system?
04-09-2003, 02:15 PM
The station broadcast is there for anyone to hear. If it's playing in the dealership, then you hear it on hold, how is that stealing?
They are no more stealing the signal than you are stealing it by listening to the station.
The station makes money through advertising, which is also broadcast over the phone. One of the drawbacks of using a radio station as a MOH (music on hold) system is possibly playing a competitor's advertisement on your phone system.
As far as payment for performance (paying the song's composer through ASCAP, BMI, SESAC, etc.) that's all done through the radio station - they pay to perform (play) the songs.
In it's simplest form you hook a radio up to the phone hold system. We do it here at my shop.
This was a big deal many years ago and it was resolved in favor of the MOH systems.
04-09-2003, 02:48 PM
Apparently, you're not supposed to do this (http://www.onholdplus.com/pages/about_copyright.html) unless you get a license.
04-09-2003, 03:56 PM
<----------- Spoonfeeding rico his dose of crow. Thanks, FCM !! .
Does this mean I can't do business with them anymore??
04-09-2003, 06:09 PM
Well, you don't know that they don't have a license, do you? OTOH, anyone who leaves you on hold doesn't deserve your business, dagnabbit!
yeah, I'm crabby - what's it to ya?!?
Music performance licensing is probably the most misunderstood part of the industry. I was remembering a case back in the 80s that playing music for one person over a telephone line was not considered a "perfomance" of that piece...
That apparently was overturned. I stand (actually sit) corrected.
And get off the crabbies!
04-09-2003, 06:47 PM
Hold that crow.
The linked site raised my dubio-detectorometer (it's obviously not impartial), so I did a small amount of digging. The only actual law cited in that blurb was from the US Code Title 17 Section 101. That section (http://www4.law.cornell.edu/uscode/17/101.html) doesn't actually prohibit anything at all, it's just definitions. So, true, the first claim made by the site
('By statutory definition, since a corporation or other company is a place 'where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered,' (17 U.S.C. SECTION 101) it is a public place for copyright purposes')
is true, the second may or may not be, and is at least an uncited claim
('Whether the performance is by the playing of a CD or tape, by a radio tuned to a particular station, or via music-on-hold (which constitutes a public performance by virtue of its being a transmission to the public), permission must first be obtained in order for the use of that music to be lawful'),
since the cited statute makes absolutely no restrictions about obtaining permission AFAICT.
In fact, Title 17, Section 110 (http://www4.law.cornell.edu/uscode/17/110.html), subsection 5, subparagraph (B), sub-subparagraph (i), sub-sub-subparagraph (I) makes specific allowances for the public (as defined in Sec. 101) retransmission of copyrighted works that are being broadcast by a radio station by a company or other non-food-service establishment.
Sec 110 exempts certain displays, noting that:
the following are not infringements of copyright:
communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission...
in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and -
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space...
no direct charge is made to see or hear the transmission or retransmission;
the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed.All of which conditions seem to me to be satisfied by the retransmission of your typical MOH, as long as the particular radio station being broadcast is in line with FCC regulations and has their license in order.
IN OTHER WORDS, unless I'm reading this wrong, we can come to three conclusions:
1) Rico was right
2) FairyChatMom was wrong, and further,
3) The website she linked to hawking their 'royalty-free' music was at best disingenuous and at worst lying through their teeth in order to promote their product.
With regard to Rico's last post, it appears that the retransmission of MOH from a radio broadcast does qualify as a 'display' under Title 17, but is exempted from exclusive rights due to other circumstances. Rico's first post was pretty thoroughly correct.
Anyway. We do this where I work too. The boombox we use is just down the hall from me, actually. It's got a busted antenna so we can only get a couple stations. I can unplug the cable that goes into the phone-system box and hear it myself if I want to.
04-10-2003, 05:12 AM
Well, send me to my room without dessert. Being neither in broadcasting or in law, I was curious by the question in the OP and I did a little searching. Obviously I did not fully understand what I read, nor did I know that I didn't understand it. Nor did I understand WL's cites, but I'll accept the explanation. Legal language continues to perplex me. I just gave myself a headache...
04-10-2003, 06:21 AM
Actually, FCM, you may get dessert after all. In White Lightning quote, subsection (5)(b)(iv) says:
the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
I would say that hold music would be considered to be "further retransmitted beyond the establishment where it is received." Because it is not subject to the exception it is probably prohibited unless the business gets a license.
04-10-2003, 02:09 PM
Billdo, we're going to run into some problems here because there's no language in Title 17 specifically applicable to music-on-hold. Section 101 (http://www4.law.cornell.edu/uscode/17/101.html) defines an 'establishment' as "a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly."And, of course,"To ''transmit'' a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent."
I see what you're saying, that the boombox down the hall can be said to be 'receiving' the transmission from the radio station and 'retransmitting' it through the hold music on our phones. But this situation doesn't fit the term 'establishment' as defined because we're not talking about a physical establishment where the customer is coming in and there's music playing, which clearly is the situation that Section 110 provides for, we're talking about a more amorphous telephone 'establishment' where the customer phones in and music is playing over the phone. My thought was that that set of circumstances satisfies the conditions laid down in 110.
You make a very good point, though, and I'm not sure my case could be argued effectively. I certainly don't know anything about legalese myself.
So can FCM have her dessert after all, but Rico doesn't have to eat his crow either?
Oh hey, FCM, I didn't mean to be coming off harshly in my last post... or as a know-it-all or whatever. The site you linked to certainly did say just what you said it did. It's just that after digging into it (what can I say, I was bored at work, poring over copyright law seemed like just what the doctor ordered at the time) it seemed like they were being dishonest. Nothing personal. Sorry if I gave offense.
04-10-2003, 02:22 PM
As someone who reads legalese for a living, this is how I'd interpret it:
Section 110 is an exception section, it provides that: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: "
Sub-section (5)(b) provides for an exception for retransmission of broadcasts in certain small establishments. (It seems to me that the exception is to enable someone to play the radio in a small shop.) If you don't fit precisely into the exception (or some other exception), you are subject to the copyright laws.
Because the Nissan dealership at issue here is almost certainly larger than the square footage listed in (5)(b), and because the retransmission goes to phones off premises, it would likely considered a copyright violation.
04-10-2003, 03:27 PM
General Questions. I think it'll get more air play over there.
04-10-2003, 04:56 PM
But... but... I'm not smart enough to post in GQ!
Man, I hadn't even thought about the square footage issue; I just glossed over it when I read through that part. You're right about that, but that again points us to the issue that the music isn't actually being played on the premises of the car dealership, it's not even really being played in a physical space at all.
But then I guess you're right again -- Section 110 is a list of exceptions, so if you're not exactly what is detailed in Section 110 you're still liable. Like I said in my last post, I'm trying to massage the definitions but it probably won't hold water if push were to come to shove.
04-10-2003, 05:22 PM
Okay, the spoon is in the garbage. My apologies to Rico. I have to admit, I am reading this really carefully ( I don't even play a legal AIDE on t.v....... :D ).
Forget the local Nissan dealer. They have a reasonable customer radius of..100 miles? I'm wondering how people like, say, Nissan North America ( not to pick on Nissan ) handles this? Their potential square footage? Fuggeddabaddit. You can call toll free from anywhere. I will admit I have heard local radio while calling a 1-800 # and being placed on hold. A company in Michigan that I call with some regularity puts one into a hold que that lets you hear the local radio feed.
Keeping a close eye on how this lays out. Youse legal beagles let me know, I'll keep the Starbucks and Krispy Kreme's flowing. :)
vBulletin® v3.7.3, Copyright ©2000-2013, Jelsoft Enterprises Ltd.