Re: Net/Music "Fair Use" Issue - OnLine Guitar Archive Needs Help!

On 4/28/98, Chris Synan <synan[_at_]olga.net> wrote:
>
> The On-Line Guitar Archive <http://www.olga.net/> is a loosely organized
> group of guitar enthusiasts who are brought together by their common
> interest in sharing knowledge of guitar music. Our Archive is made up
> of several thousand songs, written in "tab" format ("tablature" or
> guitar notation). Our "tabs" are created by people on the internet who
> post their tabs to USENET groups. We not currently organized but we aim
> to apply for nonprofit status. We have gotten into squabbles in the
> past with EMI Publishing USA, and more recently with the National Music
> Publishers' Association (NMPA). Recently, many of our mirror sites have
> been taken off-line due to contact from the Harry Fox Agency, which is
> associated with NMPA. On April 3, 1998, the mirror at Harvey Mudd
> College was taken off-line as a result of HFA contact. More recently,
> our Carnegie-Mellon mirror was also taken down.
>
> As a result of this threat, I have organized the OLGA Legal Advisory
> Committee (OLGA-LAC). The primary reasons for doing so are (1) to
> organize opposition to the Harry Fox Agency, or any other organization
> who would attempt to shut down OLGA; (2) to write up an official
> statement concerning the legality of OLGA, citing relevant copyright
> statute and case law; (3) to incorporate OLGA as a nonprofit
> organization; (4) to handle other legal affairs as they may arise.
>
> OLGA Legal Advisory Committee really needs all the help we can get, so
> if anyone would like to volunteer some time or expertise, it would be
> most appreciated. Basically what I'm looking for is some people like
> yourself who can participate in an intellectual property-related policy
> discussion, and maybe help out with nonprofit incorporation at some
> point. This is a cutting edge cyber-law issue! If you have any
> experience in this area, we need your help!

Chris-

You raise some very interesting issues. Please do not take the following as legal advice or as an attempt to establish an attorney-client relationship; rather, I am simply talking off the top of my head without any research supporting my assertions.

As a guitar enthusiast (I'm not that good) who has been looking for tablature renditions for years, I was thrilled to learn of your site! On the one hand, it provides quite a service (especially if you do not intend to profit from these versions). On the other hand, if I were the copyright holder I may not be so pleased and may expect some sort of compensation. There may be a fair use argument, but it would be sticky.

I would ask someone online to refresh my memory: if this can be construed as a derivative work, does that absolutely necessitate payment to the original copyright holder? Also, don't Harry Fox, BMI, etc. enforce performance rights, and can this be viewed as such? Do makers of old-time piano scrolls have to pay royalties to the owners of the songs that they transcribe if they are not in the public domain (I would imagine so); do purveyors of paint-by-number sets pay royalties to the original artist if not in the public domain? And what if these people are not selling their product, and the recipients are not selling or performing to the public for a fee?

OK, I've about exhausted my thoughts on the matter. I would be curious to hear what everyone else thinks. Thanks for indulging me.

Charlene B. Flick
Assistant Counsel
Information Industry Association
(202) 319-0141
CFlick[_at_]infoindustry.org Received on Fri May 01 1998 - 16:08:12 GMT