[bct] Re: Copyright Dilemma

  • From: "Brent Harding" <bharding@xxxxxxxxxx>
  • To: <blindcooltech@xxxxxxxxxxxxx>
  • Date: Wed, 8 Mar 2006 18:09:38 -0600

I would almost guess that at the most, an artist could request the file be taken down. The thing of archive.org is though that you can't remove anything.

----- Original Message ----- From: "Larry Skutchan" <blindcooltech@xxxxxxxxx>
To: <blindcooltech@xxxxxxxxxxxxx>
Sent: Wednesday, March 08, 2006 5:28 PM
Subject: [bct] Re: Copyright Dilemma

Well, I've been thinking about this quite a bit, too, and I'm passing the buck to Jake.

Jake says that we should, on a per incident basis, publish such performances. I don't think we should just let the individual file, in the case of Jim, because there is no way to identify the performer. If Jim wants to make an introduction or provide me with a word or two, I'll be happy to announce it.

Neal, I completely understand your reluctance, but as far as bct goes, I can't see a legal problem with sharing such a performance where we are not charging for anything and the participant is willing to share his work.

----- Original Message ----- From: "Neal Ewers" <neal.ewers@xxxxxxxxxxxxxx>
To: <blindcooltech@xxxxxxxxxxxxx>
Sent: Wednesday, March 08, 2006 4:17 PM
Subject: [bct] Re: Copyright Dilemma

Thanks Rich for this message.  I couldn't agree more with your
sentiments about people being able to share their music with each other.
If I were not in the recording business, I don't think I would have felt
quite as uncomfortable about this.  I also started the copyright
discussion with an incorrect assumption.  I was under the incorrect
impression that APH was hosting this list.  So, I didn't want Larry to
have any repercussions if someone, like the music publisher who heard
the podcast, did take it upon themselves to make trouble.  After all,
Larry could do podcasts from jail, but what would poor Jake do there?  I
feel much better knowing that APH is not involved and that Larry can do
what he wants with no repercussions from the place where he is employed.
This was my primary concern when I thought APH was hosting the list.

In the last week or so, I think we have come up with an informal way to
share our music among ourselves.  People who want to take part in this
will certainly do so.  Another talent show?  Well, I don't know.  While
I may not be able to host it, I have no authority to stop others from
offering to do so.  I would strongly suggest that any discussion of
another such event has Larry's blessing.  After all, I am only the
moderator of this list.  Larry is the one who actually hosts it.  So,
the final word on legal matters rests in his hands.  Oh Larry, it's so
good to be able to pass the buck.

Again, thanks Rich for your research on this.


-----Original Message----- From: blindcooltech-bounce@xxxxxxxxxxxxx [mailto:blindcooltech-bounce@xxxxxxxxxxxxx] On Behalf Of Rich De Steno Sent: Wednesday, March 08, 2006 2:40 PM To: BlindCoolTech@xxxxxxxxxxxxx Subject: [bct] Copyright Dilemma

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

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 may safely be taken without permission. Acknowledging the
source of the copyrighted material does not substitute for obtaining

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 technical 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; incidental 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 work.

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 the situation. The Copyright Office can neither
determine if a certain use may be considered "fair" nor advise on
possible copyright violations. If there is any doubt, it is advisable to
consult an attorney.

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