Here's the problem with your argument.. the protections for software and music are not identical.
A copyright is granted by statute.
An EULA is a contract.
As for music; once the work has been published some of the control you are claiming is lost by statute. For one thing - the work can be performed by anyone with no other liability but the royalty prescribed by statute. There is no EULA that automatically attaches to the "Christmas Song" only copyright law and those rights which the statute allows an author/publisher to reserve. If I obtain a recording of it from iTunes and play it in a club which has active ASCAP/BMI accounts I'm not liable for anything. The worst Apple can do is close my account. The EULA contains no other actionable provision since I have violated no one's copyright, and produced no damage or liability for Apple.
The RIAA tried to argue that MP3s are software and thus not applicable to the Copyright Act's authority over "phono-recordings." That argument was lost and the Home Recording Act further codifies digital music files as "phono-recordings" for the purpose of copyright legislation.
If I am performing a December wedding in the park and Mel Torme happens to stroll by and hear the "Christmas Song" he has no claim on a public performance because the song is not being performed at a public gathering. The park has been permitted for a private event. Mel hearing the noise has no more actionable cause than if he heard the stereo in the apartment next door.
No it doesn't. It means: a derivative causal relationship absent any statutory exemption.
Furthermore: Commercial use and public performance do not mean the same thing.
If you run a bar you generate beverage sales. If you add background music your revenue increases. If you add music for dancing your revenue increases even more. There is a direct causal relationship between the addition of music and sales receipts. This relationship is independent of whether the music comes from a band, DJ, or jukebox. This is a public performance not a commercial use.
If I'm a mluti-op and duplicate 10 copies of custom CD compilations to make a library for each of my DJs this constitutes a derivative product and is a commercial use not a public performance.
If I outfit my 10 DJs with a collection of original CDs and they go out and do 10 weddings simultaneously - this is neither a commercial use or a public performance.
If one of my 10 DJs shows up at a club with his collection of original CDs this is a public performance not a commercial use.
The profit must result from a public performance or derivative product. Performing a work publicly attracts a crowd - and the profits to which the law refers are the products you sell to that crowd and/or the cover charge to be a part of it. A royalty is due because the music is used to establish or enhance the disposition of buyers.
A wedding is private and therefore exempt by statute - nothing is being sold and the disposition of the crowd assembled is defined by their perosnal relationship not the music program. The fee (or lack thereof) for the DJ or band is irrelevant because the music they play is unrelated to any business purpose for which the crowd has been assembled. The purpose for which the music is applied (personal celebration) is by statute deemed non-commercial and private.
Your argument is limited by the word "using" which for music means something entirely different from "performing." Once you publish a musical work it can be legally performed by anyone, anywhere, anytime, with only the the prescribed royalty (if any) being due.
They don't have a snowball's chance in hell of even getting a case heard against a wedding DJ. If they did, they'd have already done it and we would all be paying special royalties to be wedding DJs. It is expressly prohibited in the USA under terms in both both Title 17 USC and Title 15 USC.
