Barely Legally

Confessions of a Moot Court Bailiff

Swedish Car Mafia

The musical copyright industry is not particularly well-designed. It’s had to adapt and add-on to itself every time someone comes up with a new way of listening to music. Although, as technology advanced and society progressed, the whole industry seems to have spent roughly the same amount of energy screeching about its own imminent demise at the hands of predatory upstarts as it has spent inventing bizarre new middlemen dedicated to skimming off its own revenue stream in new and exciting ways.

We’re going to focus on a specific kind of middleman here: performance rights organizations. In the U.S., you’ve got ASCAP, the American Society for uh… Capitalism and Arbitrary Protectionism, and BMI, the uh… Blithely Moribund Interlopers. These two “very” “useful” middlemen charge licenses for the performance of other peoples’ music, and then selflessly pass every penny along to the artists’ middlemen.

Well, every penny except for about a hundred million dollars or so. Annually. Each. Since 1941.

These companies get a little silly. But STIM, the Swedish version of ASCAP/BMI, is getting a lot silly. They’re actually charging car rental companies for the music that people play in rented cars. Yes. Beautiful trollsmanship. I love it. TorrentFreak has a fun story about one car rental company standing up to this shakedown:

STIM (Svenska Tonsättares Internationella Musikbyrå) is a collecting society for songwriters, composers and music publishers. It demands license fees whenever its members’ music is broadcast or transmitted, and […] ensures that its members are paid when their music is played in public.

Each car rented out by Fleetmanager contains a stereo radio and CD player so that the customer can enjoy broadcasts of all kinds, including music. STIM says that to do so legally Fleetmanager needs to obtain a license but to date has failed to do so.

The reasoning here is that there’s a difference between you playing a CD in your home and a doctor playing a CD as background music in their waiting room. Makes sense, right? One is just you enjoying some songs, and the other is the use of music in public in a commercial enterprise. I get it.

But, uh, inside a car? That’s not really a public performance. Even if you have the windows down, calling that public is … pretty tenuous. Also tenuous: STIM is charging a flat fee for the potential to play music, not the songs people actually listened to. That’s not unusual for performance rights organizations, but I thought I’d bring it up because it’s lousy. Not quite “pretending a car is a public place” lousy, but pretty lousy.

All right. Hit me, Sweden. Why are rented cars public places?

STIM is arguing that the inside of Fleetmanager’s cars contain members of the public and therefore amount to public places. On this basis the company needs to obtain a public performance license. Fleetmanager disagrees, noting that any music played inside a car is only heard by a limited circle of people.

Oh. Because “members of the public” get into a rented car. Right. Yeah. That’s not absurd at all. Look, sometimes members of the public listen to music while they’re in the shower. Or while they’re on the subway. Or while they’re cooking! Lock those performance cooking rights up, guys! Last week, in a public bathroom, the guy in the stall next to me was playing music on his phone quite loudly. All these license fees, lost like tears in the rain.

A few other car rental companies have already paid these fees. Maybe in Sweden, they have some weird law to support all this. I don’t know. I didn’t take the Swedish bjår exam.

But I do know that, in America, we have what’s called the “Homestyle” exception. Very very broadly, if a business using ordinary home A/V equipment, and isn’t charging for the privilege of enjoying the music, that will not be considered a “public” performance. Also, if the business in question is a bar, it can’t be more than X square feet with Y TVs, and so on. There’s a whole list. Ray Dowd wrote a good summary of the frankly hilariously-specific scenarios given Homestyle exceptions.

Maybe they don’t have the Homestyle exceptions in Sweden. But I think that would pretty neatly cover Fleetmanager’s “public” performance of hypothetical songs in a private rented car.