Re: Harpsichordist (Was: web-publishing & copyright...)

John Sankey <bf250[_at_]freenet.carleton.ca> wrote:
>
> A more complete version is: that I understand that I would have to
> prove beyond any reasonable doubt: a) that our files were similar,
> b) that they were not derived from a common (third) source, c) that
> his were derived from mine, not the other way around, and d) that
> he did it with criminal or malicious intent. Failure in any of
> these four would mean that I would not have a chance of recovering
> legal expenses, while all he has to do is to send a letter to the
> court saying "I contest this", enclosing a certified copy of his
> copyright deposition certificate.

Again, I disagree. The standard of proof would be by a preponderance of the evidence (more likely than not), NOT beyond a reasonable doubt. The latter is a criminal standard, while you are describing a civil lawsuit. You would have to show is that the work was original to you, i.e., that it was not derived from a public domain source; that his work was similar and was not independently developed or derived from a common source; and that his was derived from yours. Intent is not a required element in a copyright infringement case, but you are correct that you probably would not be able to recover attorneys fees unless you could also demonstrate that he had acted in bad faith. In any case, a certificate of registration does not permit anyone to defend themselves simply by mailing a copy of the registration certificate to the court. Much more would be required.

> Given sufficient funds for expert witnesses recognised as such by a
> US court, I should in fact have little difficulty in proving the first
> three, but I am told that I would be unlikely to succeed in the 4th.
> One reason: most MIDI programs do not recognize text fields of any sort,
> and follow the MIDI standard which says to ignore unrecognized fields on
> input. He thus could claim that he never saw the notice. He also can
> quote his belief, widely posted on Usenet, that he is entitled to copy
> out-of-copyright compositions underlying recordings and to claim his
> copyright after trivial modifications. Despite any error in his belief,
> I am told it would protect him against a fraud finding.

I am unclear as to exactly what it is that you claim he has copied. If you have made a new sound recording of a public domain musical work, you are entitled to claim copyright in that recording, and to prevent others from reproducing your recording of that work; but your copyright will not be effective to prevent others from copying the underlying musical work. So when you say he believes "he is entitled to copy out-of-copyright compositions underlying recordings," that belief might or might not be accurate, depending on the precise facts.

In any case, a court could award attorneys fees despite the subjective belief of the defendant, if the court found that the defendant's belief was not only erroneous, but unreasonable. I venture no opinion as to how likely it is that a court would do so in such a situation.

> The average trial in Canada today runs $38,000 in costs; a foreigner in
> a distant US court would be unlikely to stay below the average. So, I
> would lose my life savings, while he would walk off with a tap on the
> wrist. That's what I condensed as "he will win". I agree with Edward
> Barrow that, "Protection in respect of which attorney's costs cannot be
> recovered is no protection at all."

As a practical matter, that may be true. But that's a problem with the U.S. legal system in general; it is not unique to copyright.

> I also agree when he comments that, "This (with earlier posts)
> highlights a problem with the US registration provisions." I've so far
> published some 800 works (with probably some 8000 more available). The
> Internet is all countries on this earth. $20US times 800 times {the
> number of countries on earth} is a lot more than a "formality" - it is
> precisely what Berne was set up to stop.

I don't disagree that U.S. compliance with Berne is often problematic, at best, and sometimes virtually non-existent, at worst. But there are a number of things you can do to reduce the problem. First, since most countries don't require registration, you don't need to multiply the U.S. fee by all the nations on earth. Second, you can probably register a number of works at one time as a "compilation" in order save money. A compilation copyright would protect both the original selection, coordination and arrangement of the compilation, as well as any individual components that were original.

     But again, I am unclear as to what you think was copied. Here, you say you have "published" some 800 works. Previously, you said you had made "recordings" of a number of works. Which is it? Under U.S. law, there is a distinction between the copyright in the composition and the copyright in a sound recording of that composition. If you have made a new sound recording of a public domain musical work, you are entitled to a sound recording copyright; but if you have simply made a new publication of sheet music of a public domain musical work, you are NOT entitled to a musical work copyright except to the extent that you have added some original expression to it. Even then, you would not be able to prevent others from copying the portions that were not original to you.

> So, I hope you can understand my feelings if I end: copyright law is
> in fact a vehicle for legal intimidation, not for recourse.

I do understand, and I sympathize. But again, I don't think the problem is unique to copyright law. For that matter, do you really think you would fare much better under Canadian copyright law?

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Wed Mar 25 1998 - 01:26:32 GMT