Jerry Kopel

At least fifteen states are now looking at a "national" contract bill that for a while, moved through the Colorado legislature as fast as a dose of mineral oil and phenolphthalein through Porky Pig.

"Fast" for a good reason. When a restaurateur in your legislative district calls, you listen. Otherwise, too many constituents who visit restaurants might hear criticisms about their legislator.

The bill is HB 1242, by Rep. Tool (R) and Sen. Wattenberg (R). It would write into statute, contract terms between music users (such as restaurants) and owners of music copyrights. And it may infringe on the U.S. Constitution which protects copyright owners, Article 8, Section 8, and the federal Copyright Act.

The Colorado Restaurant Association claims that copyright owners, acting through "performing rights societies" such as American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) which license use of musical works, allow over-aggressive tactics in collecting royalties.

In turn, ASCAP and BMI charge restaurateurs are not paying what is due their clients. In response, the restaurant association claims many of their members "do not know that they are violating any federal copyright laws when they bring a favorite CD from home to play at their business."

The pro-restaurant Colorado bill copies one of the laws being pushed in other states. As in most contract disputes, it is one-sided. For instance, contracts would not exceed one year, no snooping around by agents of a licensee on the restaurant premises, and royalties can't be "unreasonable" in comparison to royalties paid for similar licenses in the same area.

The restaurateurs do have a legitimate right to know what copyrights are in ASCAP and BMI if they are going to pay royalties, but the bill adds to the national destruction of trees by requiring a written list of hundreds of thousands of titles and performances for each restaurant. Access to that information could easily be available by computer.

When evaluating a bill, I always look at the damages section. This one allows the restaurant owner to seek to terminate the contract, recover treble damages, attorney fees, costs of the action, etc.

If the copyright owner sues "a court shall dismiss an action if such action was brought as a result of threats made by the copyright bring legal proceedings for the purpose of coercing the proprietor to negotiate or enter into a contract for the payment of royalties..."

Hey, I thought that was exactly what an attorney was SUPPOSED to do when the client says "someone is stealing my product and getting away with it."

My suggestion to both sides: Take the dispute to binding arbitration. It should not be the legislature's job to write contracts into statute.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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