Posts Tagged ‘Music Law’
Posted on September 9th, 2010 • Filed under Uncategorized • 3 Comments
I’m late to this party, but the Internet has been abuzz about a blog post by the musical theater composer Jason Robert Brown in which he relates the frustrating experience of trying to convince people to stop trading his sheet music on a sheet music trading site (if you didn’t know such sites existed, now you do). He received positive responses from many traders, but resistance from others, in particular a teenager named Eleanor. A selection from their email exchange follows.
…you’re offering several of my songs and scores for “trade” on this website. I’d appreciate it if you wouldn’t do that, since it affects my livelihood considerably when people can get free copies of my work from strangers and I don’t get anything in return. I’m glad you like my songs and I hope you’ll keep playing and singing them, but please don’t “trade” them on the Internet, especially with people you don’t know.
…Why are you doing this? I just searched you on this site and all of the stuff that people have of yours up there say that it’s “Not for Trade Per Composer’s Request.” Did you think about the aspiring actors and actresses who really need some good sheet music? … a lot of people who would love to have [Brown's] sheet music can’t afford it. Thus the term “starving artist.” Performers really need quick and easy ways to attain good sheet music and you’re stopping a lot of people from getting what they need. It matters a great deal to them that they can get it for free. Why does it matter so much to you that they don’t?
Eleanor also states that she can’t buy his music because she doesn’t have a credit card and can’t use her parents’ card, and says that she should be able to download Brown’s sheet music for free because she might expose other people to it, winning Brown new fans and securing greater royalties for Brown down the road. Brown says that the same result would be achieved by the legal purchase of his music.
After being asked by Eleanor why he is not “supporting the theater community” and why he is “doing this,” Brown explains his motivation:
…I think it’s annoying and obnoxious that people think they’re entitled to get the sheet music to my songs for free, and I’d like to make those people (you, for example) conscious of the immorality, illegality, and unfairness of their behavior…. You assume that because a good thing comes from an illegal act, it’s therefore mitigated. That’s nonsense. I’m glad people want to sing my songs, and I’m glad that when other people hear them, they enjoy them – that doesn’t mean I surrender my right to get paid for providing the sheet music.
I’m not saying that you’re not somewhat right in the way you’re thinking, but you’re also defiantly wrong. Would it be wrong for me to make a copy of some sheet music and give it to a close friend of mine for an audition? Of course not. In fact, it would be considered nasty of me to refuse. But to trade sheet music online is bad? This website is not even technically illegal. Since the music is never actually uploaded onto the site and is sent via email from one user to another, I’m breaking no law by participating in it. You think I don’t look this stuff up?
…I never said that it was an amazing thing happening and I never said that it doesn’t start with what I’m sure seems to you as a bad thing. I “assume that because a good thing comes from an illegal act, it’s therefore mitigated”? Well, I have just explained that it is not illegal, so we will leave that alone. Yes. I assume that because something that good comes from something so insignificantly negative, it’s therefore mitigated.
Brown concludes with a lengthy explanation of his position and his understanding of copyright law:
[J]ust because technology makes doing a bad thing easier doesn’t mean it’s suddenly not a bad thing…. The way I get paid is that people buy the work that I do, and I get a percentage of that money – other percentages go to the publishers, the bookstores, the theaters, the actors, the typesetters, the copyists, the musicians, the designers, the operators, even the libraries since the government takes a piece and that’s how it funds everything you rely on in your everyday life. You think you’re entitled to deny all of those people their rightful share of the work they do. I don’t understand why you think that.
…[I]t is your responsibility as a citizen, as a member of the theatrical community, and as a considerate human being to pay attention to the laws, ethics and customs that make it possible for you to do the thing you love…
I’m sorry if you still think I’m a jerk, but what I’m talking about here is not “insignificant.” The entire record business is in free-fall because people no longer feel the moral responsibility to buy music…. All of us who write music for the theater are very much concerned that the sheet music business will eventually go the same way as the record business. I’m doing my little part to keep that from happening.
Brown then posted the exchange on his blog and received over a hundred comments, many calling him an out-of-date, doomed dinosaur and many others expressing the “everything should be available for free downloading always” viewpoint common on tech media sites. A blog called Digital Society then used Brown’s post as a jumping-off point to attack many common pro-copying arguments from a rightsholder perspective.
Although I haven’t included many of them here, most of Brown’s arguments are moral ones. He thinks it’s morally wrong to engage in file-sharing because it’s tantamount to stealing. He also makes a few practical business arguments, including that file-sharing will hurt the financial interests of the musical theater community. He also offers a few legal arguments, explaining his understanding of fair use and directing Eleanor to Wikipedia to read up on copyright law.
The problem with Brown’s arguments is that they’re all easily refuted with some popular counterargument. Eleanor’s moral and business counterarguments are utilitarian: copying harms the composer but benefits others in the community, and exposure stemming from illegal copying will result in greater sales somewhere down the line. Her legal argument is simply that her conduct is not technically illegal. Of course, she might be wrong, but she has no incentive to find out, so she feels happy about her response. The availability of these common counterarguments allows her to remain secure in her belief that what she’s doing isn’t wrong.
Brown overlooks several arguments that might have carried greater weight. He doesn’t argue that it violates the norms of the musical theater community to copy music and that her reputation will be damaged by engaging in such conduct. And he doesn’t argue that the penalties for violating copyright law are severe or explain to her why her conduct is illegal.
Brown also seems to think that copyright has a moral component which comports with his general sense that copying is stealing. In fact, the stated purpose of copyright in the United States is a practical one: “to promote the progress of science and the useful arts.” Copyright is a means to an end. It has a specific stated purpose: adding to our country’s store of knowledge.
Worst of all, though, while Brown goes back and forth with a teenager about the philosophical implications of her Internet behavior, he is staring a lost business opportunity in the face. She specifically says that she is a fan of his but that she can’t purchase his sheet music from an online retailer because she doesn’t have a credit card. He responds, effectively, “tough luck,” because he wants to educate her that what she’s doing is morally wrong. Of course, while educating this hapless teen, he could also have been:
- Contacting his online retailer and saying “How can kids without credit cards buy my sheet music? Paypal? Money order? Something else?”
- Calling his manager or business partner and saying, “I found teenagers trading my sheet music online. How do we convert these kids to paying customers?”
- Asking, “Where do teenagers fit into my fanbase? Are they a big part of it? If so, have I made it too hard for them to buy my music? If not, shouldn’t I focus my efforts elsewhere?”
- Asking, “Eleanor says she wanted my sheet music to use in auditions. Why don’t I put a free sample of sheet music on my website for teenagers to use in auditions and track sales of my other sheet music to see if it has any effect?”
Brown’s mistakes support my general impression that creators who think practically, not philosophically, about digital copying do the best job of adapting to the digital environment of the 21st century. Brown expends a great deal of effort mulling over the moral, philosophical, and economic issues associated with unauthorized digital copying. Meanwhile, some competitor of Brown’s is treating it like a business problem… and fixing it. Given the choice, which do you think would be a better use of Brown’s time:
- Trying to change teenagers’ moral and philosophical understanding of unauthorized copying
- Lobbying to revamp United States law
- Bemoaning the difficulty of items 1 and 2 above
- Doing a little market research and fidding with his e-commerce strategy?
I hate to be crass about someone’s art, but Brown’s not really talking about art. He’s talking about the mechanics of selling copies of his art on the Internet. Brown, and artists like him, ought to spend a little less time on Wikipedia or plato.stanford.edu and a little more time surfing CDBaby, Lulu or Etsy.
Law Students Win Downloading Victory; Corporations Contemplate Political Speech; Gaga Trademarks Self
Posted on February 25th, 2010 • Filed under Uncategorized • 1 Comment
Students from Franklin Pierce Law Center’s clinics are declaring victory for their client in a music downloading suit against the Recording Industry Association of America (RIAA). Students from the Consumer and Commercial Law and Intellectual Property and Transaction Clinics aided a New Hampshire woman, Mavis Roy, in reopening a default judgment lodged against her for allegedly illegally downloading hundreds of songs. The case was then set for trial and the students spent months preparing. After Roy’s counsel obtained an expert report which “seriously challenged RIAA’s evidence linking the downloading activity to Roy’s computer,” the two sides reached a settlement highly favorable to Roy — the suit was dismissed with prejudice and she paid no damages. Thanks to @piercelaw for the tip.
As you might expect, law firms are already advising corporate clients about how to direct corporate spending to political campaigns in the wake of Citizens United v. FEC. According to K & L Gates, they should proceed with caution and keep a low profile. For more information on Citizens United, see our earlier post, “Citizens United v. FEC: Eight Unanswered Questions.”
Gawker reports that Lady Gaga has applied for a trademark in her name for use in conjunction with an extremely wide range of products, including gift cards, tank tops, and pens. The application is here.
Posted on February 12th, 2010 • Filed under Uncategorized • 5 Comments
The scandal already has a name – Blogocide 2010. In the first week of February, Google deleted several music blogs entirely for alleged violations of the Digital Millennium Copyright Act. Bloggers reacted with outrage. As I write this, Google has just posted an explanation of their actions, which specifies, “[w]hen we receive multiple DMCA complaints about the same blog, and have no indication that the offending content is being used in an authorized manner, we will remove the blog.” Google has restored one blog which Google concedes did not receive notification of DMCA complaints, but the others remain deleted as of the evening of February 11th.
If you’re a music blogger who uses Blogger or any other remote hosting service, you may be wondering if you will be the next to lose your blog. You may have already received a DMCA takedown notice. Below, we discuss the chain of events that likely led up to Google’s deletions of the offending blogs, as well as what you can do if your blog receives a DMCA takedown notice.
How Does This Happen?
The chain of events doesn’t start with Google. DMCA notifications are sent by copyright holders or their representatives to entities hosting allegedly infringing content. In this case, Google owns Blogger, which hosts the content of the music blogs, so copyright holders send notifications to Google regarding particular Blogger accounts. Then Google contacts the individual Blogger account holders and says “we received a notification that Content Item X potentially infringes on someone else’s copyright, so take it down or else.”
Some people seem to believe that the DMCA itself is an organization. It’s not — it’s a law. As seen in the following post to Blogger’s complaint forum by Bill Lipold, the owner of the deleted blog IRockCleveland, the organization seeking to enforce the DMCA in his case was the International Federation of the Phonographic Industry, a multinational lobbying organization which represents record labels in pursuing anti-piracy enforcement on a worldwide basis.
In Lipold’s case, Google forwarded him approximately three takedown notices in fall 2009. Lipold seems to have ignored them until his blog was deleted, at which point he posted a complaint on the Blogger support forum. In his post, he informs Google that he believed he had permission to post an mp3 from the band BLK JKS and posts an email from the record label Secretly Canadian, whose publicist expresses confusion about the takedown notice and apologizes.
Looking at the IFPI’s roster of labels, it appears Secretly Canadian is not an IFPI member. However, BLK JKS’s album on Secretly Canadian is distributed by the Alternative Distribution Alliance (ADA), a distributor which is 95% owned by Warner Music Group (WMG). Warner Music Group is an IFPI member. The other two artists about which Lipold received DMCA notices, Spindrift and Jay Reatard, also have releases distributed by ADA.
In other words, the likely chain of events was as follows: indie label’s publicist sends out a promo mp3 to a blogger. Blogger posts mp3, as publicist intends. Indie label’s major distributor reports blogger’s posting of mp3 to blogger’s ISP as infringement. Blogger’s ISP deletes blogger’s blog.
They have a word for this sort of thing. However, it appears that Lipold made an important mistake of his own: he ignored the takedown notices simply because he believed he had permission to post the mp3s he posted. Blogger, ADA and the IFPI, on the other hand, likely did not know that Lipold had permission, presumably because Lipold’s posts were not reviewed by a human being, but by a bot crawling the web looking for infringing music files. Although he may have been entirely in the right legally, Lipold did not take steps to address and clarify the dispute until it was too late. Now his blog is strumming a digital harp in Internet heaven.
Why is Google Being So Mean?
Google is not being mean. Google is trying to avoid secondary liability for the copyright infringement of others by demonstrating that Google responds to reports of potentially infringing material on its own site (Blogger) as quickly as possible. In other words, Google is trying to avoid being sued itself for allowing copyright infringement to continue after Google itself has been notified of illicit activity. Google is simply trying to protect itself. It is most likely not targeting any particular blog out of malice.
I Got a DMCA Takedown. What Can I Do?
Lipold and his fellow bloggers should have taken affirmative steps to respond to the takedown notices and protect themselves. Below, we’ll discuss what you can do if you find yourself in a similar situation.
DISCLAIMER: The following is meant only to sketch out potential courses of action. It is not legal advice; please do not rely upon it as if it were.
1) Send a counter-notification ASAP. The DMCA includes its own means of responding to a DMCA takedown notice — the DMCA counter-notification, a form in which a notice recipient explains why the notice is in error. Google’s own instructions for creating and sending a counter-notification can be found here. Note that you have to assert a legitimate reason why the takedown was in error. Alternatively, Chilling Effects, which is a clearinghouse for information about DMCA takedowns, has an automated form here which you can use to create a counter-notification. Note that you must submit your counter-notification by snail mail or fax. Don’t wait to respond — it appears that the blogs targeted in Blogocide 2010 may not have responded promptly to the DMCA notices forwarded by Google. When Google sent notices and got no response, it felt it had no choice but to proceed as if the offending blogs were posting material without authorization.
2) Contact a lawyer. If you are really not sure what is going on, talk to a lawyer who is familiar with copyright and the DMCA. He or she can advise you how to proceed and prepare correspondence to record labels, ISPs and other parties on your behalf. You might have to pay your attorney for a few hours of work, but you’ve put a lot of time and energy into your blog.
3) Alternatively, try contacting the Electronic Frontier Foundation. The EFF is a public interest organization which works on behalf of electronic freedom and privacy. If you have a meritorious claim, the EFF may be able to put you in touch with a lawyer who can assist you on a pro bono basis. They host the Takedown Hall of Shame and offer very good advice on dealing with Youtube DMCA takedowns which can be applied to other takedown scenarios as well.
Posted on February 2nd, 2010 • Filed under Uncategorized • No Comments
Playing in a band that must perform live music on television for a huge audience every night has given Questlove some inside knowledge about the complicated process of arranging rights clearance for the songs the Roots play as personalized “walk-on music” to introduce celebrity guests. As you might expect, playing even a few seconds of someone else’s song on network television can be quite expensive. (In a February 2009 interview, Questlove explained that part of the reason the Roots were hired was because they could write original music for walk-ons, allowing NBC to save on licensing fees.)
Questlove recently took to Twitlonger to explain just how expensive these things can get, as well as letting me know in advance what my walk-on song will be if I ever get on Late Night:
one day i gave my last minute clearance list in before a show only to be told mid show i couldn’t use “cry me a river” for joan rivers because justin timberlake charged an enormous rate. i “think” he is the only non dead/non rock and roll hall of famer to charge this strange rate….which kills me because the second we get any Richard on the show i wont even be allowed to do “Dick In A Box”…
Read the rest of Questlove’s post here.
Posted on January 26th, 2010 • Filed under Uncategorized • 1 Comment
(Left: A page from the Center for the Study of the Public Domain’s “Bound by Law” comic book.)
This was originally supposed to be the Monday Afternoon Legal Information Coverage Explosion (“M.A.L.I.C.E.”), but somehow Monday afternoon turned into Tuesday morning. What’s with the acronym, you ask? I’ve been reviewing criminal law for the North Carolina bar exam and I’ve got mnemonics, acronyms and altered mental states on the brain.
Anyway, here are some interesting news stories, opinion pieces and academic papers that came across our desks in the past week.
Our former professor James Boyle (@thepublicdomain) alerts us to The Public Domain Manifesto and to the latest installment of his always-excellent Financial Times column (registration required), entitled “Obama’s Mixed Record on Tech Policy.” Boyle notes that the U.S’s decision to stand up at the World Intellectual Property Organization’s recent summit in support of certain limited copyright exceptions intended to aid the visually impaired has been seen as a small victory for copyright sanity, but that “[w]hen the decision not to throw the blind under the copyright juggernaut counts as enlightened policy, it tells one a lot.”
Our friends the Future of Music Coalition have information for you about the ins and outs of the LiveNation / Ticketmaster merger and the progress of an antitrust suit alleging a digital download price-fixing scheme between the Big 4 major labels.