Tormenting Gitmo detainees with copyrighted music: Is torture a "fair use"?
The tormenting of Guantanamo detainees by subjecting them to round-the-clock barrages of blaring rock music has raised a thorny, if thus far hypothetical, legal question: Is torture a "fair use" under the Copyright Act?

Several commentators have recently pondered whether songwriters who object on moral grounds to use of their music in this fashion might be in a position to enjoin such activity. (See the Patry Copyright Blog here, and an article in the U.K.'s The Register here.) I decided to take the legal analysis to a more prosaic level by simply inquiring whether royalties might not already be due and owing songwriters and music publishers for infringement of the performance rights in their works.

After all, songwriters need the money. Music-as-torture seems to offer rare growth potential in an industry otherwise in distress, ravaged by revenue losses brought on by digitization and its consequences: downloading, file-sharing, and the demise of the album. In previous years, we would, only once in a great while, see our government use copyrighted music -- mainly hard rock and heavy metal classics -- to break down a foe's will to resist. We saw it used in Panama, for instance, to drive Noriega from his palace and then, years later, in Waco, Texas, against David Koresh and his Branch Davidians (with unanticipated results). But with the arrival of the War on Terror and our liberation from previously crabbed interpretations of international human rights commitments, high-decibel music may now be becoming a fairly routine interrogation tool used in Guantanamo, Iraq, Afghanistan, and, perhaps also, an archipelago of secret C.I.A. prisons across Eastern Europe. I'm speculating, but for Van Halen, Metallica, the estate of Jimi Hendrix, and certain rap artists we might already be talking real money here. Likewise, Barney the Dinosaur's excruciatingly monotonous "I Love You" theme (see Patry post and links therein) has apparently been found by military intelligence officials to possess powerful, yet so far entirely unrecompensed, coercive properties. (I should acknowledge up front that the Bush Administration denies any use of "torture" anywhere in the world; whenever I use that term in this article I am using it only in its nontechnical, lay sense, the way the rest of the world seems to understand it.)

For my research, I asked three eminent copyright scholars the pertinent, if ordinarily un-askable, questions. Though sometimes ill at ease, they obliged me in the spirit of grappling with a preposterous law-school exam question.

At the outset, of course, my experts all noted that the U.S. Copyright Act only applies to infringements in the U.S., and they were uncertain of the nuances of the applicable laws abroad (particularly in the secret prisons, if they exist). William Patry, the author of a magisterial new treatise on copyright law (see here and my earlier post here), reminded me, however, that thanks to former ambassador Paul Bremer's puzzling priorities, Iraq does now have a copyright law much like our own. Both Patry and professor Jane Ginsburg, of Columbia Law School, also thought that Guantanamo would be treated as a part of the United States for these purposes, bringing the largest potential source of new royalty streams within the purview of the Act. Ginsburg noted, too, that one might even be able to argue that, to the extent U.S. officials were using music on U.S. bases in this fashion, the U.S. copyright law should "follow the flag," though she acknowledged that this would be an aggressive interpretation. (While the U.S. would probably not be protected from royalty demands by sovereign immunity, songwriters would have to sue in the U.S. Court of Claims, where there are no juries and damages are circumscribed, both Patry and Ginsburg observed.)

The key hurdle to royalty recovery that all the experts homed in on first was the songwriters' obligation to establish that bombarding prisoners with loud music in locked cells inside walled prisons could be considered a "public" performance. Nevertheless, the Copyright Act provides that the copyright holder's performance right will attach even to a performance held in a private place "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Certainly the Branch Davidian compound near Waco would seem to meet that definition. My panel of experts felt that even an interrogation held inside a sweltering container car in Guantanamo or Iraq might conceivably qualify as "public" under that provision, depending on how many interrogators and detainees were present at the time. "One soldier, one detainee?" says Patry, "I would think not." But if you had a small group of interrogators in there it would present a more difficult question, he says. "It's not a group of friends or social acquaintances."

If the playing of music as an adjunct to interrogation did count as a public performance, the obvious next question would be whether the government could defend its nonpayment of royalties by arguing that it was making a "fair use" of the works in question. Here my experts parted company with one another. Patry thinks fair use would be a "tough" argument for the government to make. It's certainly not one of the usual fair use exceptions, he says, like excerpting a work for purposes of scholarship, teaching, news reporting, or creating a new work of art. "They're not using the work for criticism or comment," he continues. "Quite the opposite."

But Fred Koenigsberg of White & Case -- who also serves as ASCAP's general counsel -- thought the fair use argument to be a weightier one. Referring to some of the key factors to be weighed in any such an analysis, he notes that interrogators are clearly not using the music for a commercial purpose and that the government could argue that, indeed, they're using it for purposes "relating to public safety and welfare, and to aid law enforcement" -- all factors that would weigh in favor of granting a fair use defense. Likewise, he notes, the effect of military use of the music on its existing commercial markets seems to be negligible. "Fair use would not be a laughable claim" in this context, he concludes.

In hypothetical rebuttal, Ginsburg suggests that the songwriters might contend that "if word gets out that their music is being used for these purposes, it might [well] have a deleterious effect on the commercial market for the music." (This might be a stronger argument for the publishers of Barney the Dinosaur's songs than for the publishers of the Metallica catalog.)

Clearly, no songwriter should imagine that collecting royalties for use of their works in Gitmo interrogations will be a slam dunk, let alone a windfall or future annuity. Yet as more traditional revenue streams for artists dry up, songwriters can't afford to be leaving money on the table -- or the gurney, as the case may be. Music-as-an-instrument-of-torture does at least seem to offer the promise of a growing market segment: a rare bright light amid the general gloom.
Posted by Roger Parloff 6:18 AM 22 Comments comment | Add a Comment

I am a 43 year old father of four teenagers.

I am tortured by their music every day.

Maybe someone could sue my kids, and end this misery?
Posted By Spence Hendarson, Salt LAke City, Utah : 9:14 AM  

Is this guy insane or what? If word gets out that an artists song is being used to "torture" prisoners then it won't be commercially accepted. Artists sell out all the time and no one cares if a song is used by the military except for leftist wackos. Should the military pay for these songs. Should I have to pay if I use a Celine Dion song at my wedding. How far do you want to push this. You should pay if you are using a song to profit. Most music today is torture to me so can I sue those record labels for putting out crap that harrasses my ears. Find something more important to write about Roger.
Posted By EJ, Utica NY : 9:42 AM  

I think playing annoying music is a creative and harmless way to try and coax information.

If you locked me in a cell and played the Dixie Chicks, I know I would sing like a bird.
Posted By Chris, Columbus, OH : 9:48 AM  

The real problem here is the use of the word "torture" to describe a relatively mild device used by our forces against captured enemy combatants. We ought to consider the potential value of the information these detainees possess and weigh it against the harm caused by using such techniques (like the future treatment of our military personnel). It would help our interrogators to have at least the threat of more drastic measures than blaring Barney at their disposal. Remember that the enemy interrogators enjoy decapitating their prisoners.
Posted By Matt, Boston MA : 9:54 AM  

The music industry is not at all "ravaged...by...digitization." If you checked the facts, you'd see a very slight revenue drop in the past year or two, nothing that could possibly constitute a "ravaging." Nor are artists "ravaged" by this digitization. All the bands you list are hardly worrying about royalties from torture sessions when their music is being illegally duplicated and sold widely in foreign countries, particularly in Asia. Smaller bands have welcomed the digitization as an extremely cheap means of getting their music into the wide world, and thus we have seen a massive rise in popularity of independent, or "indie," labels over the past 5-10 years, much to the Big Four's chagrin.
Posted By Dave, Washington, DC : 10:07 AM  

Interesting and a tad snarky, but as a fan of Metallica, I can tell you I was as outraged as they were when they heard their music was being used for combat, since most of their music laments effects of war. Were I not informed on the subject, and it was widely reported their music had been used, I personally would be much less likely to buy their next album, considering them a sell-out beyond the Napster and hair cutting.
Posted By Rob, Seattle WA : 10:27 AM  

I'm tortured by music on a daily basis in the privacy of my home, walking on the streets or sitting in my car. In all of these places I am assaulted by loud bass being amplified by teenagers who could care less that they are invading the privacy of my home or car with their incessantly loud music. Why should we have to listen to their music in our houses?
Posted By heresa Wilson, Houston, TX : 10:43 AM  

Copyright infringements over tools for psychological warfare? That is really reaching, isn't there something more pertinent going on in the world today? Anyone at Gitmo is there for a reason. Whatever goes on there to ensure our rights as we know them is not of our concern. I can't believe I wasted a moment of life actually reading this.
Posted By A. Burns, St Charles, MO : 10:46 AM  

Does liberal ilk slant have to appear in the business section as well?
Posted By Cris, Los Angeles : 10:49 AM  

Read between the lines. This has nothing to do with the music industry. It is a simple and ongoing jab at our military and intelligence forces by the liberal "establishment". I believe that most people with a grain of common sense would see thru this. It is sad display.
Posted By Cris, Los Angeles : 10:59 AM  

That was a well written article . . . very, VERY funny!!
Posted By Beth Jetton Snowflake, AZ : 11:07 AM  

Whoaw! How far can you liberal flakes go? You should have to pay me to read this garbage. Talk about torture.
Posted By Abroga8 : 11:17 AM  

I agree, this is a great article that serves to point out our governments abuse of rights at Gitmo in a humorous way. Well done!
Posted By Jim, Salt Lake City, UT : 11:42 AM  

Recent music is all torture anyway, so whats the big deal?
Posted By herb schmitt; richardson tx : 11:54 AM  

I am appalled by the ignorance transparing from readers' comments. Dozens have been released from Gitmo with NO CHARGES, so how can anyone claim that "Anyone at Gitmo is there for a reason". Men, you should read more.
Torture is no good, any form of it. And my understanding is that we pretend that our system is better than theirs, not worse.
Posted By GG, Charlottesville, VA : 12:47 PM  

If I were subjected to endless hours of RAP, I'd have to admit to the crime.....within a few minutes, or maybe even within seconds. You have to remember, the detainees have different cultures and music. No matter whether Metallica, or the Eagles, or ZZ TOP...they would find it offensive. Probably blasting "Cashmere" by Led Zepplin over the loud speakers would be enough to send them over the top. Subjecting them to rock music should be allowed. You've got to remember, they chose to put themselves in this position. Cutting off fingers is torture. Loud rock is not....although we sometimes disagree.
Posted By Dave, St Louis, MO : 12:58 PM  

Way too funny! It's nice that even business writers get a chance to write fun stuff occasionally. I think P.J. O'Rourke might even smile about it. It seems only a couple of readers "got it".
Posted By SoCal Tommy, SoCal : 1:36 PM  

You're hilarious! Artists don't get paid for their music, record companies do!!
Posted By Dave-Champaign, IL : 1:36 PM  

I recently finished a law review article about governmental infringements of intellectual property rights. To sue the military, one sues the United States. Under 28 USC 1498(b), the government can be sued for copyright infringement, but there is an exception under 1498(c) for claims "arising in a foreign country." The way courts interpret that exception, I'm afraid the public performances at Gitmo (in Cuba, notwithstanding it's a U.S. military base) would not give rise to government liability, regardless whether they are fair uses.
Posted By RJM, Columbus OH : 1:50 PM  

The exemption in 28 USC 1498(c) states: "The provisions of this section shall not apply to any claim arising in a foreign country." That means at the least that one cannot sue the United States in the United States for violation of U.S. law. My understanding of Gitmo is that is not considered a part of the United States, and certainly is not under the definition of the "United States" in title 17 USC. I agree therefore that one could not bring suit for copyright infringement in the U.S. for acts that occurred in Gitmo, although from a purrely legal perspective, one could theoretically bring suit in Cuba or Iraq unless there is the equivalent in those countries of the Foreign Sovereign Immunities Act and assuming that if there were such equivalent acts that they covered the use of music as part of interrogative methods.
Posted By William Patry, N.Y., N.Y. : 8:09 PM  

At first glance this seems like a tough call here since the music isn't being used for commercial purposes in the strict sense. But it is also not being used for private and/or personal use (the question of enjoyment set aside).

I think Fred Koenigsberg is wrong in his assertion that "interrogators are clearly not using the music for a commercial purpose" because all the other equipment and personnel involved in its use are bought and/or paid for by the government (like whoever is dj'ing). This would tend to mean it is a commercial application. We're not talking a backyard garden party here. We're talking a serious mega watt sound system paid for by US Taxpayer $ being run by soldiers also paid for by Taxpayer $.

Private usage would tend to imply direct use by the end user for their own personal use (presumably enjoyment). Of course if the end user is sadomasochistic and their enjoyment is inflicting pain on someone else by playing loud obnoxious music at them, then usage similar to that at Guantanamo would pass muster. In this case however, even if the soldiers or military contractors enaging in the playing do derive personal enjoyment from the task (an entirely separate issuo to worry about), one can quite reasonably demonstrate that such enjoyment is secondary, and they playing of the music for the purpose of psychologically weakening their enemies is primarily being done in the performance of their job duties, which makes it inherently commercial.

So I think it all comes down to the motivation of the person doing the playing of the music. If they are doing it for no money, and of their own free will for their own entertainment, then it is not copyright infringement. If they are being compensated in any manner then I think you have to say it is a commercial usage and royalties must be paid or copyrights are being infringed....
Posted By Jay Hersh, Lincoln, MA : 10:26 AM  

The lack of intellectual curiosity regarding business law, sense of humor, and even the ability to read and do simple analysis, as evidenced from these comments, is astounding.
Posted By Mike, Sacramento, CA : 12:41 PM  

Or feel free to send a letter to the editor about this story. Top of page

About this blog
This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist. To join in the discussion or suggest topics, please email rparloff@fortunemail.com.

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Market indexes are shown in real time, except for the DJIA, which is delayed by two minutes. All times are ET. Disclaimer Morningstar: © 2014 Morningstar, Inc. All Rights Reserved. Disclaimer The Dow Jones IndexesSM are proprietary to and distributed by Dow Jones & Company, Inc. and have been licensed for use. All content of the Dow Jones IndexesSM © 2014 is proprietary to Dow Jones & Company, Inc. Chicago Mercantile Association. The market data is the property of Chicago Mercantile Exchange Inc. and its licensors. All rights reserved. FactSet Research Systems Inc. 2014. All rights reserved. Most stock quote data provided by BATS.