Re: Copyright and MP3 issues

On 05/01/99, Nick Zales <zales[_at_]execpc.com> wrote:
>
> On Fri, 30 Apr 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> commented:
> >
> > With regard to MP3 itself, you say that "many people make recording
> > of their own music for their own use." What do you mean "their own
> > music"?
>
> Simple, it's called being a musician. I make a copy of myself playing
> an instrument or singing or whatever. It's my original work. Millions
> do this, yet they pay an unconscionable hidden tax because Congress was
> bought off. We don't need this extended.
>

[snip]
>
> My point is that many people are not professional musicians but still
> record their own music. People must leave behind the mind set that
> all music comes from the recording industry. That is what they want
> you to think.

Please forgive the misunderstanding. When you used the phrase "my music," it was unclear to me whether you were referring to music you wrote, or to CDs that you own. I have met far too many people who think they are entitled to make a copy of a recording simply because they own a copy of it.

As for MP3, I am in absolute agreement with you that the format itself is not infringing and should not be enjoined, under the Sony rationale. As for the taxation argument, it seems to me that the question could be decided by some empirical research. I don't think it is helpful to impute sinister motives to the RIAA; they are simply seeing the problem from their perspective, as you are from yours. Let's find out how people are really using MP3; that should help decide whether the AHRA approach is the best one.

> Copyright law is a travesty because: (1) no one really understands it;
> (2) the registration process is a joke; (3) it provides no rational
> basis for making business decisions, and (4) it's enforcement
> mechanisms are like treating acne by decapitation.

(1) I disagree that no one really understands copyright law, although I recognize that most laypeople do not. But most laypeople don't understand most legal issues. Does that mean we shouldn't have laws at all? (2) Why is the registration process a joke? Is it because it is too burdensome, or too slow, or because there is no scrutiny of registrations? As it stands, it only costs $20, and is relatively easy to obtain; and it is not required (but is still encouraged) unless and until you need to sue for infringement. But it is a legitimate ground for complaint that U.S. authors should be treated equally with foreign authors, who don't have to register at all. (3) I definitely agree with you. More definite guidelines are needed for vague and fuzzy concepts like fair use. As it stands, it is next to impossible to counsel clients with any degree of certainty. (4) I also definitely agree with this. The penalties are far too draconian except for willful commercial infringements. Such severe penalties are partly in response to fears of widespread infringement by digital means, in the hope they will serve a deterrent effect. But I think Internet infringement is primarily a technological and social problem rather than a legal one, and should be treated as such.

> The law does not work in anybody's favor; it is unfair to all. The
> difference is the rich can hire lawyers to protect their "rights" while
> others can't. [snip] Perhaps in college students can debate the lofty
> ideals behind copyright law. In the real world it's a mess that is
> incapable of being fixed. It should be scrapped.

I'm an academic, so it's difficult to respond to your charge with any degree of credibility. But it's a long way from your premise that the AHRA is unfair (which I am willing to believe, or at least consider) to the conclusion that copyright is "incapable of being fixed." Copyright has worked fairly well for a long time; and the basic statute (except for some recent amendments like the DPRSRA and the DMCA, which are dreadful) is actually better written than most. As for the rich being better able to take advantage of the law, that's always true; it's hardly unique to copyright law.

When you say copyright should be scrapped, do you mean that anyone should be able to copy the music and literature that you write freely, without any compensation to you? Would you feel differently if Time-Warner was making millions off of a recording of a song that you wrote? Unless you favor full freedom to copy, some form of copyright is needed.

[P.S. I'm signing off the list for the summer. Best wishes to list members until then Thanks for some interesting discussions.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon May 03 1999 - 19:37:22 GMT