Slashdot Mirror
Your Mashup Is Probably Legal
TV Barn writes "We've been conditioned to think that if you pull something off the web and use it, you're committing some sort of copyright infringement. But increasingly, the law is moving in the opposite direction. Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound. On Monday the Center for Social Media released 'Code of Best Practices for Fair Use in Online Video,' which reflects the latest changes in copyright law that has expanded the understanding of fair use to include 'transformational effect.' Already Miro has endorsed the guidelines, as have several public broadcasters. The Center has a good track record, having issued guidelines for documentary filmmakers that have greatly reduced copyright claims in that area. The website has plenty of resources for mashers and mixers; I interviewed the Center's director in this podcast that summarizes the most important findings of the report." On the other hand, says reader kaliphonia, your guitar tablature sites may not fare so well.
The Church of Scientology, for example, is a copyright holder that is VERY determined (very high in the #1 factor). They have taken down MANY critiques that clearly fell well within any reasonable definition of "Fair Use." Go up against them and it won't matter what the "definition" of Fair Use is, they will still likely prevail in any real-world scenario (unless you are also VERY determined and VERY capable of defending yourself).
SJW: Someone who has run out of real oppression, and has to fake it.
So my Mickey Mouse / Prince hentei slash rape movie set in the Palladium universe using music from Metallica is perfectly legal. Sweet. Intertube fame, here I come!
Does this also apply if you want to use three consecutive characters from an associated press story?
a law school. It would have been nice to know why tab sites aren't covered under fair use. From my admittedly ignorant reading of the pdf (IANAL so I am in fact ignorant) it looks like the article says exactly the opposite of what TFS says.
I know that often the law makes little or no sense, but after all, unless the tablature has been written down then your putting it on paper (or computer screen) is a new work.
Can someone help alleviate my ignorance here?
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
Somebody post a copy of Windows XP: I want to memorialize and preserve it, and I'd like to launch a discussion about how MS should continue to sell and support XP.
I guess what I'm saying is, as nice as these Fair Use guidelines are, they're only as good as the lawyers that fight for them and the deep pockets that will fund them.
steampunk web design
is legal now?
Monstar L
You cannot apply fair use to something that has never been copyrighted. Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song .
Either the entire music industry is illegal by definition, or replicating/mimicking a musicians work is not illegal. There is no such thing as a musician who has never played another musicians music.
The sole exception here would be that if someone scanned pages from Guitar Player magazine or some similiar magazine, and then posted the scan on the web, that would be a copyright violation.
And of course, we need a car analogy: Imagine if Ford tried to claim that any instructions explaining how to replace a gasket in their cars manifold was a copyright violation of their manuals.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
However, if you use the word "mashup" you're probably a jerk.
Time to start the development of my Smash Bros Brawl Sex game.
The instructions themselves aren't, but the format and actual text are. You can't just copy it word-for-word. In other words, while the facts aren't copyrighted, their organization and expression in a fixed medium (the shop manual) is.
Kevin Smith on Prince
The thing with mashups is that they often break the revenue model of the folks providing the content. Stripping ads and/or using content without "signing up" for things is sometimes like demanding value for free. So go ahead and make a mashup of the user interface-- just host it yourself and use your own database.
E pluribus unum
Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd. First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song .
And thats what performing bands are paying royality fees for.
bickerdyke
if you pull something off the web and use it, you're committing some sort of copyright infringement.... But increasingly, the law is moving in the opposite direction.
I know the site is USA-centric, but it's probably a good idea to specify the country in the summary. The above blanket statement is obviously not true, since, for example, the Canadian government just introduced DMCA-style legislation that would remove a lot of fair use. I'm certainly not as optimistic as the submitter.
Interesting...
So the way I read this is: if you sample just a teeny bit of a song (the hook from "It Takes Two", e.g.) you're infringing -- or you have to pay out the wazoo to get the sample cleared -- but if you include enough of the material to claim "Commentary", then [they'd argue] you're clear.
VERY interesting...
I think the poster was trying to point out SCOTUS, which in the end of any lawsuit involving this will be the final naysayer to free use. Although, there was a different time...
...and it should be known by now
Exactly. As long as the justice system remains a for-profit industry, you really have far fewer rights than you realize.
That is, unless you are super-rich.
Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
so everything is dandy if the engineer told you how to replace the gasket and then you go and write down the procedure, in your own words?
It is legal for a live band to perform cover songs at a venue if the copyright holders of the music are members of ASCAP/BMI, and the venue pays its yearly royalties to those organizations.
Absolutely.
Kevin Smith on Prince
...since 99% of the live band music played on any given day is what we musicians call a cover song.
And that's why the club in which the band is playing pays licensing fees to a Performing Rights Organization, and those fees transform into royalties for the holders of the copyrights on the songs played, assuming the band reports their set list to the PRO, which they should, as they will also get paid royalties for playing their own songs.
By the way, if a band is recording a cover song, they first have to pay to get a license for the mechanical rights to the song.
Nevertheless, copyright on tablature is an interesting problem. There's no doubt that music is protected by copyright the moment it is recorded. Transferring that music to a different medium (ex. CD to tape) is an infringement of copyright. But what about transferring it to a completely different medium (ex. CD to paper in the form of tablature)? Does that really constitute a copyright violation?
Well, actually, thanks to the reality of publishing rights, it does constitute a copyright violation. Basically, the law attempts to make it possible for musicians to make money selling their music in other forms, such as releasing books of tablature.
Personally, if a website posted tablature of my songs, I wouldn't be at all concerned. Same goes for lyrics. But, then again, I also wouldn't be too concerned over MP3s of the actual songs being distributed. So I guess I'm a little more easy-going on the copyright issue than a lot of other musicians are. My preference is to put all songs, lyrics, and tablature on the band's website so no one needs to go looking for it anywhere else.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
While I admire the effort these academics have invested in this document, it might have more clout if there were a few names from the content industries on the list. Their interpretations seem reasonable on the face of it, but I wonder if Viacom's or Elektra's attorneys would agree with their views.
I note that they make the point repeatedly about how fair use requires a transformation of the copyrighted material being used, and that the use of entire works generally has less protection than excerpts. Still I don't think I came away knowing whether making a music video from a complete song would qualify as fair use or not. On the one hand, the original work might be "transformed" by adding the video component, but the song itself was still used in its entirety. A mix of different video clips backed up with excerpts from a variety of different songs probably has a better chance at a fair-use defense.
So how this affects the legality of AMVs or collections of 30sec or less shorts in their style? The latter case is of particular interest to me, since I've made one, uploaded it to Youtube and it got deleted "by request of the music publisher". After that I lived in a bit of insecurity that my efforts at some demoscene-oriented jokes will be the financial death of me.
;) )
(Though admittedly, it was a bit crap, so I see reason in there
"We are the music makers, and we are the dreamers of dreams [...]."
First, off, whether or not things are still bad, trending towards a broader definition of fair use is still good. Not only in-and-of-itself, but it provides another wedge to start undoing all the other bad stuff and overcoming the factors that lead to abuse.
Second, let's not make the mistake of focusing too much on hosting and take downs. Maybe the RIAA can still force a take down of a mashup, but if the accepted law is that my copy of the Grey Album is legit, my iPod is less likely to be seized at the border.
You cannot apply fair use to something that has never been copyrighted. Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd.
Only if you don't understand how the copyright system works. (Many people do not, which may suggest that the system is poor.)
As soon as a creative work, such as a song, it brought into existence, it is subject to copyright. The creator gets to decide who may make copies of the work, including printed musical notation that represents the content of the work.
In short, the right to publish tablature for a song is reserved to the creator of the song and/or those to whom a license to copy has been assigned.
First of all, you would have to charge almost every band that ever existed with copyright violation, since 99% of the live band music played on any given day is what we musicians call a cover song .
You've changed the subject. I thought we were talking about publication, not performance.
I was about to say the same thing...
IANAL, but have an entertainment attorney (since I am a publisher/engineer/producer in my spare time) who made a very important point:
You can make fair use of content, just make sure you have the bank account to fight them when they take you to court. The golden rule applies. You can get sued for using a kick drum sample to make an original beat for a new song. Will you get sued for this?
Depends...
Would they win?
Not if you can outlast them financially in court and have the better attorney who can prove that you are making "fair use" to whatever judge is on the case.
It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D
-Viz
Don't kid yourself. It's the size of the regexp AND how you use it that counts.
Tab is covered by copyright because the song composer owns the copyright on the specifc arrangement of notes represented by the tablature.
As to cover tunes, they, too, are covered by copyright (as is any music used in performance settings)--a performance copyright. If you buy some of the large and extremely expensive books of cover tunes, they often include limited performance rights (thus the tremendous cost). One of the reasons a lot of coffee shops have dropped or altered their musical programs is that lawsuits were threatened over local musicians who came in and played well-known tunes without having first secured performance copyright permissions. Of all copyright law, that's one to which I can best relate, since I am a songwriter when not bogged down as a sysadmin. Other musicians should not be able to take and use my songs (and make money doing so) without fair compensation to me (I manage my own copyrights, and do not require rediculous licensing fees for their use). Let them either pay a reasonable amount to use a piece in their performance, or let them write their own music.
Now, for mashups, people should be allowed some use of protected pieces, provided that economic gain is not the primary purpose of the mashup. If someone wants to put together snippets of their 10 favorite Devo songs while displaying a collage of abstract watercolor paintings, let it be. Now, if someone wants to do the same and sell the resultant media on a late-night television infomercial, then let them pony up some licensing cash (or revenue sharing).
I use irony whenever I can, but my shirts are still wrinkled...
Only one thing is impossible for God: To find any sense in any copyright law on the planet.
http://www.coderoshi.com/
So Bridgeport v Dimension has been overturned then?
The only changes I see are for the worse, not the better.
Got to throw Girl Talk out there. http://74.124.198.47/illegal-art.net/__girl__talk___feed__the__anima.ls___/
I have a mashup of Linux and some proprietary code (handles the DRM) for a set top box. Good to know it's legal!
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
Scientology has, IMO, pushed a little hard on the legal end.
Their recent attempt to have Gawker Media remove an edited interview of Tom Cruise failed. Gawker's direct response was to cite fair use. See the thread on Gawker.com from January 15th: "Tom Cruise Indoctrination Video." There are follow-ups on Chilling Effects for the Cease and Desist Letter. Gawker's response to it...etc. etc. Basically, you can still see the thing.
Then some people on 4chan seem to have started the whole Anonymous protests as a direct result of Scientology's attempts to silence Gawker. Those protests have waned recently, but were a definite sign that people do notice this stuff and take it seriously.
The definition of Fair Use is a legal one; yes, the pocketbook factor will always limit the direct legal rights you theoretically have, but if you can get a million people in masks out into the streets....
Dan
Which would be "informative", if not for the fact that performing bands are doing no such thing. If you don't believe me, go to your local night clubs and talk up any of the performers. Ask them who they pay royalties. They will look at you like you have three heads.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
However, if you use the word "mashup" you're probably a jerk.
Which I guess would be you minus the "-off"?
Samples are different. There is a whole different wing of case law for samples. Also, fair use is not just about commentary. The key word is TRANSFORMATIONAL. I shoulda linked to my story as well, which discusses that aspect a bit.
But yes, if you can show that you are taking something and making something significantly "new" from it, fair use applies, whether it is commentary or a dance remix of O'Reilly's rant.
But the artist who did that composed his own music. If you just sample, you're taking music and making .... music. Not transformational.
I can only speak vor the situation over here (Germany). I know people in a few bands, and while several of them got away with not knowing about it, some others wish they had payed royalities, as that would have been cheaper than paying the 'fine' afterwards. (more a back payment based on a worst-case-scenario than a proper fine, but nothing you'd want to argue about) As those royalities only apply to "Public Performances" it's often up to the owner of the concert venue as the organizer of the event to take care of it. (read: at least write in the contract who has to take care of it)
bickerdyke
It's a lot easier to pay $.99 to license the kick drum sample from a service that sells sound, as long as you keep your reciept:D
Can you recommend a few good sample libraries whose TOS doesn't conflict with releasing the end product under, say, the Free Art License, the Creative Commons Attribution License, or the Creative Commons Attribution-ShareAlike license?
So, is tablature illegal because someone could now play that song on guitar in their house without paying royalties or licensing fees? Most people just pick it up by ear, which would make brains illegal. What if your friend who is really good at guitar shows you how to play it? If tablature is illegal because the copyright owner could potentially choose to later publish a tab book or sheet music, then is it legal to upload videos to youtube of someone showing how to play a song as long as it's not written down? What if the copyright holder wanted to, at some point, release an instructional how-to-play video? Does that then make it illegal to teach people how to play a song if you record yourself teaching it? How retarded does this argument have to get?
Usually the house pays the fees. Go to your local night clubs and ask the manager who he pays royalties. If he looks at you like you have three heads, you could probably make some money turning them in.
Give me Classic Slashdot or give me death!
Here in the UK, that is covered by a performing rights license. Any venue that allows performances has to have such a license, and under it you are allowed to perform a certain amount of copyrighted work. The band doesn't pay the royalties, but the venue does
"Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound."
Copyright law has nothing to say about making money. If you can make a billion dollars off someone else's IP without copying it then you are already free to do so. Conversely, copying someone else's IP without making a dime is not legal. The concept of "commercial use" only comes up as one of the tests related to fair use determinations, and it is not a binding factor.
A case in point is Google News. What they are doing with the content is allowed by copyright law - they are displaying very short summaries that link to the original articles. The fact that they make a bazzillion dollars off of it doesn't magically run them afoul of copyright law. There is no protection against someone else making a ton of money off of "your" material and refusing to give you any of it. Get over it.
Ignorance of the law does not excuse.
http://en.wikipedia.org/wiki/Clean_room_design
And thats what performing bands are paying royality fees for.
Which would be "informative", if not for the fact that performing bands are doing no such thing. If you don't believe me, go to your local night clubs
Which, for a lot of people affected by these rules, would involve waiting several years to become 21 in order to gain entry to these clubs.
and talk up any of the performers. Ask them who they pay royalties. They will look at you like you have three heads.
Or ask the club's owner if he is paying royalties to BMI or ASCAP or SESAC on behalf of the bands.
From teh TFA: "Fair use reaches its limits [...] when the material is readily available from authorized sources.
If you post full copy of XP, you are clearly violating the limitations.
Windows XP is out of print as of a week ago. So is it as "readily available from authorized sources" as you thought?
Alas, you have cited the biggest non-sequitur bandied about in regards to this issue. You see, just because someone pays fees, does not validate a claim that such a payment is legally required . Clubs pay extorsion fees all of the time. Some of those extorsion fees are paid in the form of "royalities."
Under fair use, no such payment is required . I sometimes play various songs at my family and friends homes, yet nobody pays "royalties". People play songs at train stations, etc. with legal permits , yet they are not required to pay royalties. There is no such thing as a company universally authorized to collect money in exchange for the right to play everyones songs. While it is the conventional wisdom to buy into the extortion, it is a house of cards.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
... again, I don't see a transformational use of the music in the video. If RevoLucian were sufficiently antisocial, for instance, he could sue the dude who made a YouTube video out of his O'Reilly Dance Remix, because simply adding the video to go with the audio, from the exact same Inside Edition rant, would likely not pass a judge's transformational test.
However, in the real world there has been much skittishness over the years about using ANYTHING that comes from Big Media over fear of legal action. This document suggests there is a way out of that, by distinguishing pure ripoff (e.g., last night's Colbert reposted to YouTube) from creative reuse (the famed, 100% Viacom-approved Colbert mashups).
Also, remember these guys have a track record. Pat Aufderheide told me that after their statement on docufilms came out in 2005, Kirby Dick used more than 150 classic Hollywood movie clips in his documentary about the MPAA ... and didn't license a one. If you've seen This Film Is Not Yet Rated, you'd know why - and see a textbook example of transformational use.
Excellent link! Guitar Tablature is the quintessential example of a clean room implementation.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
You can try to define "Fair Use" all you want to. But any definition is utterly meaningless in the real world because your rights are entirely and completely dependent on a number of factors that have nothing to do with any attempt to define the term
Exactly - and the article summary is wrong about the law "moving increasingly in the opposite direction". The law hasn't moved at all. Copyright law is what it is and the last real update to it was the DMCA what, ten or more years ago now? There are several bills making their way through congress right now that would strengthen copyright laws, not weaken them. The law has not budged since the awful DMCA, but if it's *going* to move in any particular direction, it's going to get worse.
What's changed is the public's perception about copyright. But that's got nothing to do with the law. You're perfectly free to believe murder is right and moral too, but that doesn't mean you won't go to jail if you kill somebody. The law is the law.
In Canada, you can recoup your legal expenses. If you take a case to the Supreme Court of Canada, you're looking at out-of-pocket expenses of $1 million or more.
I can't imagine it costing any less to go to the US Supreme Court.
So sure, you could fight the law, but do you have the cash to afford the extensive lawsuit, considering that you'd be out of work for a year or more while you work full-time on your case?
---
ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
You can't just copy it word-for-word. In other words, while the facts aren't copyrighted, their organization and expression in a fixed medium (the shop manual) is.
So shouldn't the fact that most of these (usually user-submitted) tabs on most tabs sites are either greatly simplified or completely wrong be their saving grace? I'd call it paraphrasing the work at best.
By the way, if a band is recording a cover song, they first have to pay to get a license for the mechanical rights to the song.
So if they don't have mechanical rights, they can't record it. So the performance of that cover is not fixed by them in a tangible medium, and copyright over that particular performance won't exist. But if I were to record it, I'd be fixing it in tangible medium. The copyright of the performance may belong to me, but then I could be sued for not having the mechanical rights to make the recording?
Sounds like these licensed mechanical rights mandate a public domain that no one can exploit and the extinguishing of works forced to be ephemeral, which sounds to me to be against the spirit of copyright (see signature).
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
I see where you're coming from, copyright protects you in particular then by assuring people know that your songs are yours.... Unfortunately, I'm pretty sure that, say, Nirvana or RHCP or whoever people are looking for tabs on don't have the same problem. Once your songs are well-known no one's going to go into a coffee shop and pretend they wrote it. And the tabs on these sites are for well-known songs... It really is just a matter of "does anyone care?" I guess.
" If someone wants to put together snippets of their 10 favorite Devo songs while displaying a collage of abstract watercolor paintings, let it be."
Did you just whisper words of wisdom, and was it legal for you to do so if Michael says so, or Paul?
Yeah, that's right, it's "protection money" to ASCAP. Protection from being sued by them that is. I play at a celtic session once a month at a local tavern and the ASCAP assholes even showed up there trying to make the manager pay royalties for us playing there. The songs we play are traditional songs that sometimes date back to the middle ages, there's no copyright on them, they're in the public domain. Secondly, we don't even perform for the bar, we're off in a side room, we don't make any money and neither does the bar owner. The manager told them that and I think and they haven't been back but it's still a concern that we might get booted out of our favorite tavern just because of some corporate thugs have more lawyers than the bar owner.
Gentlemen! You can't fight in here, this is the war room!
What is the deal with guitar tabs? It was always been my understanding that if you're just learning to play it, making no money off of it, then that's fair use. If you're playing it in the a club or coffehouse setting, isn't it the responsibility of the venue to pay for licensing? I really don't get it - is it the fact that the people posting the tabs might be making money off them?
It may be that guitar tabs are not fair use because they wholesale copy copyrighted work. Because there is usually a financial aspect to these sites, they remain prime targets for non-fair-use (unfair) claims.
I've seen a lot of success with my hybrid site Sheet Music Archive offering a combination of locked and unlocked (by subscription) offerings of classical sheet music beyond the copyrightable term.
However, we have seen some "free" sites copy our presumably copyrighted PDF scans (presumably to us, at least) claiming the internal content is public domain. There is an open legal question whether specific editions of public domain work are separably copyrightable. We'd like to think so although I'd be curious to know what legal precedents are known to the Slashdot community.
So if they don't have mechanical rights, they can't record it.
I should have been more clear. They can record it, they just can't legally sell it. If they do, they'd be doing so in violation of copyright and could be sued. The recording would still physically exist, as well as all rights to it.
So the performance of that cover is not fixed by them in a tangible medium, and copyright over that particular performance won't exist.
Are you talking about performance now, rather than recording? Because that's a different situation. Recording involves mechanical rights. Performance involves performing rights. Failing to pay for mechanical rights has no bearing on performing rights.
The copyright of the performance may belong to me, but then I could be sued for not having the mechanical rights to make the recording?
I'm not sure how to approach this, as your scenario confuses mechanical and performing rights. Assuming you are making a recording, with permission, of someone else's live performance of a cover song, regardless of their right to perform it, then I believe you will need to get a mechanical license if you want to sell it.
By the way, it's dead simple and cheap to get a mechanical license.
Sounds like these licensed mechanical rights mandate a public domain that no one can exploit and the extinguishing of works forced to be ephemeral, which sounds to me to be against the spirit of copyright (see signature).
--
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
Again, you're confusing mechanical and performing rights. Copyright is not a single right, it is a collection of many rights, not all of which apply to a specific work. A work does not "expire" before its copyright. Copyright covers the song, not the specific live performance of that song. That performance is not fixed, and therefore not protected by copyright. The song still exists even after the band has finished playing it. If someone records it, then it has been fixed, and that recording is covered by copyright (not the live performance, which has now "expired"). The recording still exists, and it is protected.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
.
One swallow does not a fellatrix make
Provided you are making a truly new use of the content, you are free to make money off those copyrighted images and video and sound.
This is the way the law has ALWAYS been. Copyright law is meant to protect your originality. This is why parodies are allowed, it's the thought that the parody can be as original and artistic what it's making fun of. If you create something unique then it's yours, the part where it gets messy is when you take something and call it unique when it really cant stand on its own without the piece you borrowed from somewhere else.
If i had one dollar for every brain you dont have, i would have $1.
Under fair use, no such payment is required.
Oh, really? Point out the part of the fair use doctrine that allows performance of someone else's songs wherever and whenever you please. Here's the actual law (I'll assume you're in the U.S.).
I sometimes play various songs at my family and friends homes, yet nobody pays "royalties".
That is not a public performance. You can do that all you want without paying royalties, as no copyright holder (not even the RIAA) would ever come after you for that.
People play songs at train stations, etc. with legal permits, yet they are not required to pay royalties.
Actually, they are technically required to pay royalties if they're performing covers. The RIAA hasn't started going after them yet, so don't give them any ideas. Of course, the busking permit could be modified to include a payment to the appropriate PRO (maybe that's already in place. I don't know).
There is no such thing as a company universally authorized to collect money in exchange for the right to play everyones songs.
It would be impossible for an individual copyright holder to chase down every individual who performs the copyright holder's songs without licensing them. So, organizations were created to pool the efforts on behalf of the copyright holders. Bars, clubs, radio stations, etc voluntarily pay these fees to these organizations, known as PROs (Performing Rights Organizations), in order to avoid civil litigation. It is not a legal requirement that fees be paid to this organization, but it is a legal requirement that any fees demanded by the copyright holder be paid to them. The PRO is simply a convenience for the performers/broadcasters and the copyright holders.
While it is the conventional wisdom to buy into the extortion, it is a house of cards
It is not extortion. You don't have to pay it. If you choose to break the law (ie. perform a song that you don't have the legal right to perform), then you may face consequences. That's reality. If you want to avoid the consequences, don't break the law (ie. either pay the appropriate licensing fee, or just don't perform the song).
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Excellent link! Guitar Tablature is the quintessential example of a clean room implementation.
That's debatable. An analogy to writing tablature would be listening to an audio CD of a book, and writing it down, word for word. The end result is a perfect copy of the original book, but it could be argued that it's a clean room implementation.
I can tell right now how well that argument would do in a courtroom.
Of course, the counter argument is that tablature isn't necessarily a perfect transcription of the song (ex. I might write down an open A chord using the 5th, 4th, and 3rd strings, whereas the guitarist on the album actually played a barre chord on the 5th fret using the 6th, 5th, and 4th strings). But that's a pretty blatant attempt at finding a loophole. A judge will see through that.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Protection money is not extortion. You don't have to pay it. If you choose to disobey the mafia, then you may face consequences. If you want to avoid the consequences, don't disobey the mafia.
It is extortion.
Give me Classic Slashdot or give me death!
Go up against [the Church of Scientology] and it won't matter what the "definition" of Fair Use is, they will still likely prevail in any real-world scenario (unless you are also VERY determined and VERY capable of defending yourself).
A relative of mine (one without the surname 'Coward') seems to be doing rather well all the same.
That they can still record to establish copyright but not have license to distribute settles my question, regardless of any confusion on my part between mechanical and performance rights.
However, you misunderstand the signature.
A work does not "expire" before its copyright.
I mean "expire" in the sense that it ceases to exist in any tangible form. The tray liners at Burger King enjoy the same duration of copyright as any other copyrighted work, yet the medium in which they are fixed is not durable for that duration and extremely unlikely to have special action undertaken to preserve them.
In as such as a work can cease to exist in a tangible medium before its copyright expires denies its entry into the public domain by its failure to exist. It might as well have been granted eternal copyright, which would be a violation of the "limited times" clause. Therefore it should be impermissible to enforce copyright upon a work that will not survive its copyright term.
Maybe that's a novel way to challenge copyright: by challenging what constitutes tangible media by excluding anything that doesn't outlive the author by 70 years (80 if Spanish). Certainly DVD media that becomes opaque and unreadable when exposed to air for 48 hours would not qualify by that metric (as tangibility surely presumes accessibility).
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
I've always maintained that amateur tab is the very epitome of legal reverse engineering.
It's really hard to explain that to musicians, though. And I am one. So... yeah.
While you are correct in that many venues do not pay the ASCAP public performance fee, you would be mistaken if you think that ASCAP doesn't pay attention to which venues that pull in big revenues aren't paying that fee.
ASCAP's position on the whole thing.
By and large, the fee is affordable for most non-dive venues, and gets paid as a matter of doing business.
Tab is covered by copyright because the song composer owns the copyright on the specifc arrangement of notes represented by the tablature.
Well, the song is covered by copyright. However, if I just listen to the song and then write down what I think the song composition is, I don't see how this is any different than a cleanroom reverse engineering of any black box.
And yes, I am a musician.
They say "The trend in case law about fair use has strongly been in the direction of supporting transformativeness as a core measure of fair use."
I like how they can't cite a single case of this where this has actually gone in someone's favor. Especially when money is at stake.
you know, that's the most erudite one of these posts I've seen in a while.
The commonly used language "make money off..." (as the post was written) implies a sort of behavior of taking advantage, some sort of magical money-making simply by having/using/exploiting some particular thing.
Absent is the notion of making a genuine creative effort. Absent is the additional value created. Particularly absent in "make money off..." is the work of marketing and selling the product or service to customers/clients who are happy to pay for the value you've added that they desire.
Sure, there's plenty of much worse crap every day in slashdot "articles", but the phrase "make money off" applied to actual, genuine, bona-fide creative effort to make and market something valuable.... I just wish a better phase could be used.
PJRC: Electronic Projects, 8051 Microcontroller Tools
Protection money is not extortion. You don't have to pay it. If you choose to disobey the mafia, then you may face consequences. If you want to avoid the consequences, don't disobey the mafia.
Murder laws are not extortion. You don't have to obey them. If you choose to disobey the law, then you may face consequences. If you want to avoid the consequences, don't disobey the law.
Pain experienced as a result of putting your hand in a fireplace is not extortion. You don't have to avoid putting your hand in a fireplace. If you choose to put your hand in a fireplace, then you may face the consequences. If you want to avoid the consequences, don't put your hand in a fireplace.
Not everything with consequences is "extortion". The mafia forces you to pay up, or face consequences imposed by the mafia purely as a result of your decision to not pay up. Your only choices are pay, or suffer the consequences. However, in the case of PROs, you have the option to pay up if you want to legally perform the song. Your choices are to pay up in order to legally perform the song, or break the law and face the legal consequences, or don't perform the song at all (note the extra choice that doesn't exist in the mafia scenario). If you've made the choice to perform the song, and you've made the choice to do so illegally, the fact that there are consequences to choosing an illegal act doesn't turn this situation into extortion.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Uhmm .. no, it wouldn't, but thanks for making my point. In the case you cited the words would match letter for letter. There would be few if any extra or missing letters. However, in the music scenario, when you compared the analog outputs using signal analyzers, there would be no one to one correspondence. There would be different harmonics, different frequencies, some extra tones, and some missing ones, etc.
Also, perhaps you are unaware of sampling, and the courts ruling with regard to the legality of including them in songs?
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Excellent link! Guitar Tablature is the quintessential example of a clean room implementation.
How? Tab is generated from listening to the music (a copyrighted work). A derivative work is then created. A clean room design would be if the tab was based not on the music, but of a written discription of how the music made you feel.
Your ad here. Ask me how!
In the case you cited the words would match letter for letter. There would be few if any extra or missing letters. However, in the music scenario, when you compared the analog outputs using signal analyzers, there would be no one to one correspondence.
There wouldn't need to be a one to one correspondence on the recording, just on the sheet music. Copyright doesn't just apply to a specific recording of a song, but to the music itself. If it only applied to a recording, then there would be no issue with copyright and tablature. The reason there is an issue at all is because copyright covers the actual music, not just the recording of that music.
Also, perhaps you are unaware of sampling, and the courts ruling with regard to the legality of including them in songs?
No, I'm not unaware of that at all, but thanks for bringing it up. Sampling generally involves using only a portion of the song, and creating a new derivative work. That has nothing to do with tablature.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Look on the bar's door/windows for a sticker showing that they are ASCAP, BMI, or other similar music licensing organization members. The venue pays, not the band.
Fair enough. And since there is no such one to one correspondence, we can agree that there is no copyright infringement ;-)
Exactly! And that is why I cannot play a song from Deep Purples album on a phonograph, etc., lip sink to it, and call it my own without infringing, but I can play the song myself all day, even for money in a venue, without infringing. My rendition is a derivative work which differs substantially from the original (albeit, because I suck at the guitar) ...
Funny. The last time I used tablature, it represented only a portion of the song, and what I played was a mere derivative of the work. In fact, my derivation differed substantially more than the legal sampling examples with which I am familiar.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Really great in depth coverage of the legal problems around guitartabs.
The author comes to the conclusion (after 28 pages) that tabs will be found illegal under current law, but that current law is not a proper representation of the original goal of copyright laws. He proposes a system where people can legally create tabs, until official tablature is marketed for the specific song.
It provides quite an in depth view of the legal issues surrounding the legal status of tabs under current U.S. law. Really recommended!
A interesting excerpt:
tab is not a complete documentation of a song in almost all cases and almost ever includes the timing.
I've seen tabs that use the spacing between notes to indicate rough timing. PC tabs are generally shown in a monospace font, and in many cases, the width of each character's glyph represents the duration of an eighth note or a sixteenth note.
you can't take hendrix, lock him in a room with the tab for some recent metallica song and expect him to come up with something more than vaugely familiar.
"Vaguely familiar" can go far to establish substantial similarity, especially if other facts of the case show intent to reproduce.
How long after the fact is irrelevant unless the time exceeds the copyright.
I'll grant that. But it is relevant for statutory and case law forbidding the misappropriation of "hot news". See, for example, INS v. AP and discussion of the hot news doctrine.
It is also relevant for trespassing laws. Ordinarily, to observe a sporting event in person, one must carry a ticket. Consideration for a ticket to an event often includes requirements other than a monetary payment. In this case, it may require that the person not publish, or cause to be published, any detailed description of the event within x amount of time of the event.
Murder laws are not extortion.
Why not? If you consider "not killing someone" to be a service, then the use of threats to obtain that service can definately be seen as extortion. Extortion is not as bad as muder though, so we choose the lesser of two evils.
However, in the case of PROs, you have the option to pay up if you want to legally perform the song. Your choices are to pay up in order to legally perform the song, or break the law and face the legal consequences, or don't perform the song at all (note the extra choice that doesn't exist in the mafia scenario).
In the case of the Mafia, you have the option to pay up if you want to keep your business. Your choices are to pay up in order to keep your business, defy the mafia and face the consequences, or don't have a business at all. (note how these choices are exactly the same as above).
The only difference between what the mafia does and what the RIAA does is that the latter is legal. The fact that there are squiggles on a piece of paper somewhere permitting it doesn't make a bit of difference to the victim.
Give me Classic Slashdot or give me death!
By transcribing a recorded piece of music, you are only copying the composition - not the recording, therefore only violating one of the copyrights.
One thing, i wonder, is how arrangements are treated in respect to copyright. If i take a piece of music - for example a Bob Dylan song originally written for guitar and vocals - and rearrange it for a 100-man orhestra, will i be enitled to copyright fees from that arragement?
So if they don't have mechanical rights, they can't record it.
Which does not happen because mechanical licenses are compulsory, meaning they have to grant permission to everybody in exchange for royalty payments. The scale of the royalty is set by law and changes every so often. This is indeed a cutout in copyright law, but to combat inefficiencies of excludability and transferability in the market for cover songs. These versions can be sold.
When I was a kid, we only had one Darth.
Perhaps you should actually read the Wiki article. Then you would not be asking how. You would (hopefully) see that it maps EXACTLY with a minor unimportant exception, to wit:
The only difference? Step 2 isn't actually necessary, since you don't need a lawyer to verify tablature doesn't include a recording of the song or a portion thereof, since it isn't even physically possible.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
Does this mean P. Diddy (or whatever he's calling himself these days) won't have to pay royalties when he "records" a song which is an exact copy of the original with him saying "yeah! uh, huh!" periodically throughout it?
In clean room design, the people creating the new work have never been exposed to the previous work. When writing tab, they have been. A song can be copyrighted as lyrics and notes, in addition to each derivative recording being copyrighted.
Your ad here. Ask me how!
Not true. Take the Broadcom drivers in Linux for example. The people writing the Open Source drivers already own broadcom cards, and may have used them to connect to a wireless network. They just haven't seen the source. In the music clean room example the person reverse engineering the music creates the tablature. The person using the reverse engineered spec (the tab) re-implements.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
gracias amigo
Limbo of the Lost is saved!
Claiming that a song is copyrighted, and therefore any tablature is copyrighted is absurd.
Under U.S. law, copyright applies to the fixed expression of an original idea at the time it's fixed. So when you wrote the lyrics or recorded the tune, you gave them a fixed form. There has not been a requirement to add the C-in-a-circle or "Copyright 2008 Fred Frack" since the 1970s, though having the notice, and registering the copyright, can permit additional remedies in cases of infringement.
And since there is no such one to one correspondence, we can agree that there is no copyright infringement ;-)
Not quite, as there doesn't really have to be a perfect one to one correspondence at all. I mean, if I make a copy of a book, but change a handful of words here and there, it's still copyright infringement.
Exactly! And that is why I cannot play a song from Deep Purples album on a phonograph, etc., lip sink to it, and call it my own without infringing, but I can play the song myself all day, even for money in a venue, without infringing. My rendition is a derivative work which differs substantially from the original (albeit, because I suck at the guitar) ...
Your paragraph started with "Exactly", but then proceeded to contradict the sentence you were responding to. That sentence explained why you can't "play the song myself all day, even for money in a venue, without infringing." It's not a derivative work if you simply play a song poorly.
My last band put a cover on our first album. The original song was played with an acoustic guitar and vocals. Our version was played with two electric guitars, drums, bass, and vocals. It's clearly substantially different, but still required a mechanical license from the publisher of the original song in order to put it on the album, because it's still a cover of that song.
The thing that is covered by copyright is a thing that is intangible. It is more of a concept, a vague idea, than an actual thing that can be clearly defined. You're attempting to get around copyright law by pointing out things that aren't perfect reproductions of something tangible.
You have to understand that copyright is not just a single, simple right. It is a collection of rights that has many facets. You keep bringing up sampling, but that's covered by a completely different part of copyright (specifically, mechanical rights) than the part that covers live performance (performing rights), or tablature (I think that falls under communication rights).
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
Why not? If you consider "not killing someone" to be a service, then the use of threats to obtain that service can definately be seen as extortion. Extortion is not as bad as muder though, so we choose the lesser of two evils.
Um, okay, fine. Every action that has a consequence is extortion, then. The corner store uses extortion ("if you don't pay us money, we will deny you this product"). Hell, even gravity uses extortion. Whatever. I'm sorry, but it's a stupid argument.
The only difference between what the mafia does and what the RIAA does is that the latter is legal.
That's not the only difference. Extortion involves coercion. There's no coercion here, anymore than there's coercion when I go to the corner store. If I want the product, I pay for it. If I choose to take the product without paying, I've committed a crime and am subject to the consequences (prosecution). This is the same for the PROs. If you want the service (performing the song), you pay for it. If you choose to take the service without paying, you've committed a crime and are subject to the consequences (since this is civil law, not criminal, the consequence is a lawsuit, rather than prosecution). It's not extortion.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
You can try to define "Fair Use" all you want to.
Fortunately for us, we don't have to, as it is already defined for us. I get a kick out of people who throw stuff together and claim "Fair Use" and they can't even cite one legal exemption that falls under Fair Use. Here's news for you Mr. Mashup--your work is not protected under Fair Use, because it (most likely) isn't for academic or review purposes. If you "think" it is, then you best be prepared to prove it in a court, as the burden of proof shifts to the accused in this case.
It is never legal or illegal until the copyright holder complains.