Me and a small group of friends (10 people) are going to have a party. Normally, we would meet each other at someones home. However, due to the COVID-19 pandemic, everybody will stay at their own places and join through a video chat.

When meeting physically, there would normally be background music. And we wouldn't have to pay any fees (other than for relevant streaming subscriptions, downloads, or physical copies of the music), as this is a private gathering with friends.

But how does this work with online replacements like this? Is it close enough to a "real" party, or are there any relevant copyright laws that would kick in?

Is there any legal difference between having music in the background (picked up by the microphone) or a dedicated stream in the chat for music?

(The event will not be recorded.)


There is a possible difference, but it is not clear what the outcome would be in case you got sued. The technical fact is that playing and transmitting sound by computer involves copying. 17 USC 106 says

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords

and copies are defined as

material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

The courts have not ruled definitively on what a "material object" is, but there is a good chance that sound transmitted by computer becomes a disk file (in a supposedly temporary buffer). In the case MAI Systems Corp. v. Peak Computer, the court found that a computer makes a copy of a program when it reads from hard disk into RAM so that the program can be executed, and is thus a copy under Title 17. The computer-owner was licensed to make such copies, but the repair company (defendant) was not a licensee. The case largely centered around the question of what a copy is, and the court concluded that

the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement.

Even though RAM is somewhat volatile, it is

sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

17 USC 117 has some exceptions to the copyright holder's rights regarding programs (not data) and repairs, neither of which would deny protection to background music (plus: the statute is framed in terms of actual owners of software, not licensees). There are also performance exceptions in 17 USC 110, mostly limited to educational or religious performances. But this is where there could exist an exception. (4) enumerates an exceptional case that is not infringement:

performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

Your plan is not a transmission to the public, and I assume there is no money involved. The two "if" clauses are about money, and I suppose there is no money involved in this party.

The problem is that this exceptional section is about performances and not making copies (this is a separate right protected under 17 USC 106). No exception has been created for the kind of copying that would result by computer-transmitting copies of protected works.

So yes, there is a difference: when you are together in a room, you can "perform" the work. That doesn't mean that there is a real danger of an infringement lawsuit, and it is possible that you have permission from the licensor to make such internet-transmitted "copies".

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