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Dennis Sichner traveled 400 miles to hang out at a D.C. bar on a Sunday night. There were $3 beers, 40 to 60 men and women, and a local bluesman playing three sets that evening. None of that mattered to Sichner. After waiting nearly four hours — and with just 10 minutes until closing time — the saxophonist from Cleveland got what he came for when three Stevie Wonder songs played over the house sound system. Sichner was a spy for a coalition of music publishers looking to make a copyright infringement case against Madam’s Organ, a popular bar in Northwest Washington. And Wonder’s songs apparently did the trick. Earlier this month, a federal judge in the District ordered Madam’s Organ to pay $15,000 in damages to two publishing companies for the violations, as well as $2,500 in court costs. U.S. District Judge Colleen Kollar-Kotelly also permanently banned the bar from playing any songs owned by members of the American Society of Composers, Authors and Publishers (ASCAP), a publishing association representing thousands of artists and copyright holders. The judge is also considering whether Madam’s Organ’s owners should pay $63,000 in plaintiff attorney fees. Not surprisingly, folks at Madam’s Organ aren’t happy. “This was a shakedown,” says Madam’s Organ manager, William Duggan, adding that the bar may be forced to close if ordered to pay $60,000 in legal fees. “Their intention is to make a hardball example out of us and scare the shit out of everyone else.” In an age where millions of copyrighted songs are downloaded and shared via the Internet, the Madam’s Organ case serves as an example of how publishing companies are still using old-school tactics — such as sending spies into bars and restaurants — to catch scofflaws. And the strategy appears to be highly successful, netting thousands of dollars in awards for publishers, while forcing the defendant to pay the legal fees. “We can’t go to the FBI and say, ‘Please arrest this person for violating the law,’ ” says Richard Reimer, senior vice president of legal services for ASCAP. “ But we can, on behalf of the owners, enforce their rights and can get significant monetary damages.” The case also exposes the vulnerability of establishments that play music to a paying — or dancing — audience. Duggan of Madam’s Organ argued in court papers that there were no copyright violations because the bar subscribes to Music Choice, a cable music service provider. Kollar-Kotelly, however, ruled that the copyright protections offered through Music Choice did not extend to places that charge an admission fee or allowed dancing. The judge found that Madam’s Organ had done both. Greenbelt, Md., lawyer Richard Basile, who represents Madam’s Organ, says there are so many different parties owning various copyrights to songs and programs broadcast through computers, satellite television, and cable that it has become increasingly difficult for business owners to ensure they are complying with the law. “There isn’t an exclusive license for anything,” Basile says. “This is becoming more of a problem than the old days when you had jukeboxes and bands.” PERSISTENT PUBLISHER Most songwriters and copyright owners in the United States are represented by publishing companies who partner up with associations to issue licenses and collect fees for the use of their songs. ASCAP and Broadcast Music Inc. are two of the largest, representing an enormous catalog of music. Under federal law, any public performance of a copyrighted work must be licensed, and the artist is entitled to collect a royalty fee for its use. According to the complaint, Madam’s Organ has known since 1998 that it was violating the law. That year, ASCAP representatives began writing, calling, and visiting the bar in an attempt to get the owners to pay an annual licensing fee in order to play music by such artists as Dave Matthews, Elvis Costello, the Rolling Stones, and Led Zeppelin. The communications warned that live bands covering one of their artists’ songs would be a copyright violation. In a July 2001 letter addressed to Duggan, an ASCAP official wrote that if Madam’s Organ did not send payment for a license within 15 days, then the matter would be turned over to the association’s lawyers. An invoice was included with the letter stating that Madam’s Organ owed more than $3,000 for licensing fees going back to 1998. According to ASCAP documents, how much an establishment must pay for a license depends upon several factors, such as capacity, how many days the place is open, and whether live music is performed. By 2001, ASCAP had determined that Madam’s Organ — known for having live acts seven nights a week — should pay $1,100 annually. According to court papers, Madam’s Organ grossed more than $900,000 that year. ASCAP’s Reimer says his organization tries to license establishments that it believes are violating the law and turns to spies and the courts if the business refuses to pay. The publishing companies have a pretty good track record in the courts. Reimer says in the 30 years that he has worked for ASCAP, the organization has filed hundreds of actions and lost about two. Federal judges also routinely allow plaintiffs to recover their legal costs. D.C. TARGETS ASCAP has been active in pursuing cases against D.C. establishments. In the past year, two other federal cases resulted in bar owners being ordered to pay the organization after investigations found copyright violations similar to those at Madam’s Organ. In September 2003, a federal judge ordered the owners of Twins Lounge to pay $10,000 in damages to ASCAP and another $10,500 in attorney fees. In July, the owners of The Coach and Club U settled with ASCAP members for $16,500 for playing songs by hip-hop artists Outkast and Missy Elliott. A federal case was already pending against Madam’s Organ when Dennis Sichner dropped by the bar in March 2003. A year and a half earlier, a different spy, this one from Atlanta, had reported hearing Stevie Wonder songs and a cover of a Cars song being played at the club. Both spies reported that the Wonder songs were played from a compact disc player behind the bar. Madam’s Organ faced six alleged copyright violations with penalties ranging from $750 to $30,000 per violation. Basile argued that the music the spies had heard came from Music Choice, the cable subscription program. Basile also claimed that the live act, which the Atlanta spy allegedly saw perform a cover song, was out of the country at the time in question. ASCAP’s outside counsel, Benjamin Zelenko of D.C.’s Baach Robinson & Lewis, filed a motion for summary judgment, arguing that the Music Choice contract did not extend to establishments that charged admission or had dancing. Both of ASCAP’s spies reported that the bar charged a $3 to $5 cover, and one claimed she saw people dancing. Zelenko referred calls to ASCAP. The use of spies to find copyright violators is not limited to the music industry. For years, retail companies have used such tactics to bust people selling knockoff designer purses and fake Rolex watches on street corners. Pamela Deese, an intellectual property partner at the D.C. office of Dorsey & Whitney, says companies will routinely hire investigators to scour Internet sites for copyrighted material being used without permission. And while Internet searches may identify potential violators, Deese says, investigators must sometimes take to the streets to make the case. “Even in the age of technology, there are limits to using the technology to see what is happening,” Deese says. NO DANCING ALLOWED In the Madam’s Organ case, investigators were determining whether admission was paid and dancing took place. The defendants argued that neither was a part of Madam’s Organ’s business. In court papers, Basile stated that the bar does not have a dance floor. Duggan says the bar’s liquor license prevents it from charging a cover, but that minimum drink fees are sometimes charged at the door. Duggan says the plaintiffs offered to settle the case for $47,000, an amount he says he thought was excessive. In finding that Madam’s Organ violated copyright laws, Judge Kollar-Kotelly ruled that any dancing — whether it be to the copyrighted song or to a live band playing an original composition — would void any protections offered through the Music Choice subscription. Kollar-Kotelly stated that the door charge voided those protections as well. The judge also initially granted Zelenko’s request for $63,421 in attorney fees. In her Aug. 12 judgment, Kollar-Kotelly signaled, however, that she may reconsider that decision. Duggan says he plans to appeal the judgment.

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