[bct] Copyright Dilemma

  • From: "Rich De Steno" <ironrock@xxxxxxxxxxx>
  • To: <BlindCoolTech@xxxxxxxxxxxxx>
  • Date: Wed, 08 Mar 2006 15:39:31 -0500

Hi folks:

I would like to make a few comments regarding the ongoing copyright issue
that has been discussed and debated on this list.  First, although I have an
extensive legal background, I have never done any work in the copyright
field, so I do not speak with any particular legal expertise in this field.
However, as a result of this debate, I have done some research and I have
concluded the following:

Technically, Neal is correct that performing the song or reading the poem of
another author on the internet, such as in our little talent show, violates
copyright law, because it publishes another individual's creation without
permission.  I have no problem with Neal's strict adherence to this law,
since he is the individual doing the work of putting it together.  The
narrow exception to the prohibition of use of copyrighted material without
permission is in the "fair use doctrine" which does not apply here.  I have
pasted a summary of the doctrine in at the end of this message, as it is
explained on the U. S. Copyright Office's web site.

Despite all of the above, we must recognize that the internet is flooded
with web sites, home brew radio stations, and lengthy excerpts that use the
copyrighted songs and other creations of authors without their permission.
As a practical matter, no action is ever taken against such use, as long as
it is not for a commercial purpose, or in the case of file sharing, a
pervasive epidemic affecting music sales.  Thus, if I operate a little
internet radio station from my bedroom and play Beatles, Rolling Stones, and
old Doors songs, because I love that stuff and want to keep the sound alive,
I am technically violating copyright law, but I have no doubt that no record
industry rep or individual connected with the bands are going to sue me or
even request that I cease the practice.  After all, such a practice only
advances the popularity and image of the artists.  That would not be the
case, however, if I am selling their work.  There are singers in small clubs
all over this country who sing popular songs of other composers as part of
their acts without ever seeking permission.  As a rule, they are not asked
to cease such a practice.

The recording industry eventually aggressively sought to end the practice of
sharing recordings on the internet through Napster and other file sharing
sites, because the industry perceived that it was a pervasive problem that
was beginning to have a significant economic effect on sales of recorded
music.  Even that was after years of abuse and warnings.  However, in that
case, people were giving away the finished commercial versions of songs sold
on CD.

In the case of our little talent show, we are basically just a small group
of blind people who have gotten together to help each other and have some
fun.  I cannot imagine that any artist would even request that we cease
using their material, much less pursue legal action, but as I said, it is
not my web site and I am not the person doing the work to put the show
together.  Neal has taken on that responsibility and has the right to adhere
strictly to the letter of the law if he so chooses.

In summary, it does technically violate copyright law to use other
composers' material without permission in our little, innocuous group, but
as a practical matter, it is extremely unlikely that any composer would
object to such use, even assuming that they ever learned of it.

Below is a summary of the Fair Use Doctrine as promised

Fair Use

One of the rights accorded to the owner of copyright is the right to
reproduce or to authorize others to reproduce the work in copies or
phonorecords. This
right is subject to certain limitations found in sections 107 through 118 of
the copyright act (
title 17, U.S. Code).
One of the more important limitations is the doctrine of "fair use."
Although fair use was not mentioned in the previous copyright law, the
doctrine has
developed through a substantial number of court decisions over the years.
This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the
reproduction of a particular work may be considered "fair," such as
criticism, comment,
news reporting, teaching, scholarship, and research. Section 107 also sets
out four factors to be considered in determining whether or not a particular
use is fair:
List of 4 items
1. the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the
copyrighted work.
list end

The distinction between "fair use" and infringement may be unclear and not
easily defined. There is no specific number of words, lines, or notes that
safely be taken without permission. Acknowledging the source of the
copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the
U.S. Copyright Law cites examples of activities that courts have regarded as
fair use: "quotation of excerpts in a review or criticism for purposes of
illustration or comment; quotation of short passages in a scholarly or
work, for illustration or clarification of the author's observations; use in
a parody of some of the content of the work parodied; summary of an address
or article, with brief quotations, in a news report; reproduction by a
library of a portion of a work to replace part of a damaged copy;
reproduction by
a teacher or student of a small part of a work to illustrate a lesson;
reproduction of a work in legislative or judicial proceedings or reports;
and fortuitous reproduction, in a newsreel or broadcast, of a work located
in the scene of an event being reported."

Copyright protects the particular way an author has expressed himself; it
does not extend to any ideas, systems, or factual information conveyed in

The safest course is always to get permission from the copyright owner
before using copyrighted material. The Copyright Office cannot give this

When it is impracticable to obtain permission, use of copyrighted material
should be avoided unless the doctrine of "fair use" would clearly apply to
situation. The Copyright Office can neither determine if a certain use may
be considered "fair" nor advise on possible copyright violations. If there
any doubt, it is advisable to consult an attorney.

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