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

Charlene Flick <cflick[_at_]infoindustry.org> wrote:
>
> 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!
>
> 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.

The following is for the purposes of discussion only and in no way establishes an attorney/client relationship between any parties whatsoever.

Certainly, whether or not the use is for profit makes a big difference (Sup. Ct. considers it the most inportant issue) but also consider how this use affects the potential tablature market for the copyright holder. Certainly, that is a market that could realistically be exploited by the author or the copyright holder, if they aren't the same, which the exchange of tablature by the olga group diminishes. The tablatures would most likely be construed as unauthorized derivative works, or if the author or copyright holder had originally fixed them in tablature form, unauthorized reproductions, violating the license under which the copy you created them from came with. As a guitar player/enthusiast, I understand the angle olga is comming from. It would be great to exchange tabs for all the songs I like with others, especially if I can get them for free. But therein lies the problem. It flies in the face of economic rights the constitution reserves for the author/copyright holder. Unfortunately, no matter how noble your goal or cause, your site may in fact be functioning as something the Copyright Act expressly prohibits -- unlimited reproduction of a copyrighted work without the author / copyright holder's permission. I don't know if the disclaimer you post on the site is enough to make your use fair or avoid a claim of contributory copyright infringement. The court in the case of Sega v. MAPHIA ruled that this type of activity is infringing. Further, not-for-profit may not help much either. Best of luck.

MVL Michael V. LiRocchi
mikelirocchi[_at_]earthlink.net Received on Sun May 03 1998 - 07:42:19 GMT