Free the Lyrics

I just read an article published at Slyck by Nick Parker on January 12, 2006: Filesharing: The Facts and the Myths. If I had found it months ago, I could have joined in the conversation in their forums. But as it is, that thread was locked, so I’ll respond here.

It’s amazing how there can be such discrepancies on such a simple statement of fact (and I’m referring specifically to United States law) - Is copyright infringement via P2P a criminal offense or just civil? Nick from Slyck says it is just civil. (FYI: explanation of criminal vs. civil)

I am not a lawyer, but I disagree with Nick. In the forum thread I referenced earlier, there were a few voices that cried foul, but for the most part, everyone was left believing file sharing is only a civil offense when there is no financial gain since people share files for free in P2P. Here’s what I know about this, and hopefully someone can either back up or refute what I’m saying.

• So far the RIAA has been filing civil lawsuits, but it doesn’t mean criminal charges aren’t a possibility for other cases.
• Title 17 of the United States Code Chapter 5 Section 506 states how there can be criminal punishment for both commercial and non-commercial copyright infringement. In situations where there’s no personal gain, it’s still a crime as long as the retail value of the copyrighted works exceeds $1,000. Also refer to the change made in Chapter 1 Section 101, which states: “The term ‘financial gain’ includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.“
• It is because of the No Electronic Theft (”NET”) Act of 1997 that much of the verbiage was added to indicate non-commercial infringement was also a crime.
• That change in law was a direct response to the court decision in United States v. LaMacchia (1994), in which an MIT student won the case against him because the file sharing he was doing was non-commercial. The infringement in this case was computer software, but still can be relevant to all file sharing.

So, in conclusion, before the NET Act, you could argue that non-commercial copyright infringement was not a criminal act, but current law makes it so.

Edited to add:
News broke today at CNET News.com that U.S. Congress has drafted a bill to further tighten copyright law, and the federal government’s power to enforce it. Read more… Congress readies new digital copyright bill

Who is most affected by illegal lyrics and tab sites? The songwriters? I doubt it. The publishing companies? Not in the general sense of the term “publisher” which is all about the administration of copyrights, not just print rights. Specifically, I think the niche of print music publishing is getting hurt by the internet. Some agencies that specialize in printed music include Hal Leonard, Cherry Lane Music Group, and Music Sales Group.

Does anyone report the revenue generated through sheet music sales? I know it’s not a significant portion of the overall music industry, but obviously it’s being affected even more than usual. The MPA’s threats (December 2005) imply a bit of desperation. I find it hard to believe they are just now feeling the effects of the internet. Lyrics and tab sites have been around for over a decade, and there have been efforts to shut them down before, but nothing that put a dent in all the unauthorized sites out there.

Even though publishers modernized their operations a little bit by offering digital sheet music sales, the cat is out of the bag with lyrics and tab sites. Is the publishing industry ready to participate in this new paradigm? There are already companies trying to make lyrics licensing a reality.

But what about tablature? It’s here that things get a bit difficult, from both the industry’s perspective and the tab transcriber perspective.

Industry: Anything that diminishes the relevancy of print music publishers is likely to be met with a bit of resistance, so tab sites aren’t exactly going to have an easy time licensing content.

Tab writers: It’s their opinion that tab sites are comprised of fan interpretations of songs, so what they’re doing isn’t a breach of copyright, especially if the site doesn’t make any money. That’s open to debate, but the bottom line is that you have print publishers that don’t want to license the content for fear of losing sheet music business, and you have tab writers who don’t think they need to license the content anyway. What you end up with is a situation where the content won’t be licensed, and you have tab sites are shutting down, or continue to run with the fear of being faced with legal repercussions.

Looks like a lose/lose situation.

So far I haven’t found any reports of lyrics or tab sites being sent cease-and-desist letters. As I previously noted, some tab sites have taken the initiative and took down their tabs to avoid future trouble.

In an article from December (which I previously wrote about), there’s a quote from MPA president Lauren Keiser about all the email he received from people after making the MPA’s plans public.

I’ve printed out a number of them, which I’ll show the board next month

According to the MPA website, there was just an ASCAP board meeting on January 12. Is that the meeting Mr. Keiser was talking about? Does that mean there will be some action taken soon? It’s all speculation right now. Maybe they’ll hold off making any decisions until discussing it at the Harry Fox Agency board meeting, which is February 16, 2006.

There has been some discussion around the web about fair use, and whether it applies to transcribed tablature.

I just read an article from 2005-12-27, A Quick Guide To Content Copyrights, which was written to provide some guidance to those following the lyrics/tab situation. It doesn’t give a definitive answer to the question, but it shines a little light on it.

Charles S. Sanders, Senior Vice President of Legal and International Affairs for the Harry Fox Agency, told WebProNews that both lyrics and tablature rights belong to the creator or third party publisher, under the Copyright Act of 1976.

“That tablature is copyrightable is also beyond question,” he said. “Chord progression, though is up in the air. It’s a question of Fair Use. It’s impossible to predict where Fair Use is going to come down.”

The author continues with some other examples where fair use applies. There are some situations where fair use is clearer, but in the end the article doesn’t make any conclusions about the lyrics and tab debate.

I was reading an article, Publisher Apologizes To Online Lyrics Tool, which has to do with pearLyrics and Warner/Chappell. It’s from December 15, 2005, and the story itself is nothing new to me, but I found a Lauren Keiser quote that I had not seen before. The article gives some insight into what Mr. Keiser thinks about the lyrics/tab sites the MPA plans on targeting.

And he says he is not inclined to approach these sites first as potential partners. “If someone was robbing your bank,” he asks, “would you go to them and say, ‘Hey, let’s split the cut?’”

That is a terrible analogy. Like the RIAA before them, the MPA obviously has no respect for the internet. In the non-web world, the music industry is perfectly willing to make partners out of people who are “robbing” them.

Take, for example, a Washington, D.C. bar that was not paying royalties to the industry. Royalties for what, you may ask. Publishers offer a blanket fee for their copyrighted music that covers public performances and audio played in the establishment. ASCAP and BMI are two of the biggest organizations that handle this type of licensing.

So, the bar. In the article, A Spy Mission With a Two-Drink Minimum, it’s revealed that things did not turn out well for the bar, Madam’s Organ. After several years of avoiding royalty payments, it culminated in lawsuits and even getting banned from playing ASCAP-member songs. That doesn’t sound very amiable at all, so why do I say this is a good example of the music industry willing to make partners?

The reason? Because the first action by the ASCAP was to try to remedy the situation.

According to the complaint, Madam’s Organ has known since 1998 that it was violating the law. That year, ASCAP representatives began writing, calling and visiting the bar in an attempt to get the owners to pay an annual licensing fee…
In a July 2001 letter addressed to Duggan, an ASCAP official wrote that if Madam’s Organ did not send payment for a license within 15 days, then the matter would be turned over to the association’s lawyers.

I can only imagine that if the bar sent payment in response to that letter, then all would be fine, and the ASCAP would essentially be saying “Hey, let’s split the cut.”

But what happens in the web world? According to the MPA’s threats, the first action will be to send cease-and-desist letters. No opportunity for payment. It goes straight to the punishment phase that a real-world entity endures only after reasonable measures are taken.

An article that summerized the RIAA’s wrongdoings and explains how they choose to violate their customers.

read more | digg story

This digg link isn’t related to the lyrics/tab crackdown, but I wanted to comment about it.

I don’t automatically dismiss a digg submission just because it’s a blog. Some of them have useful information or opinions. This particular link at keyBlog() has neither, is overly long and incongruous, and even worse has some inaccuracies.

“allowed Sony to search through user’s hard-drives for any files”
Where is the proof of this claim? Mark Russinovich, who reported technical details about the rootkit, described how it phoned home with an ID to check for album art updates, but nothing about scanning the computer for files. Read here: Mark’s Sysinternals Blog

That’s just one example. I can nitpick about a bunch of other minor points.

“Eventually Napster was challenged by the RIAA and lost in court and in front of the Senate.”
How does one “lose” in front of the Senate? Shawn Fanning testified in front of the Senate Judiciary Committee as part of an overall discussion of the “Future of Digital Music” Read here: Napster Goes to Washington

Notice what I’m doing. I’m citing references. Something the blog post at keyBlog() should do.

Overall, not worthy of a digg, but not bad enough to report as lame.

Have you ever thought about why we have copyright? If you look at the title of this post, it says “Copyright: Money and control.” Those are some good reasons. The right to make royalties off a work, and the right to determine how it can be used.

When an organization such as the MPA threatens to take down lyric and tab sites, you can bet that the motivation is because their constituents’ right to make money off a work is being threatened.

If a songwriter finds his song is being used to promote something he doesn’t support, the motivation is about control, and maintaining the integrity of the song. In law, this concept is synonymous with moral rights.

I started to think about this topic after I was reading a conversation of some music fans and musicians. The musicians had put a lot of time into their work, and the fans had nothing but praises about the quality of the product. Everyone was upset that their efforts were being distributed without permission at Ultimate Guitar, a tablature site, sometimes without proper credit given. Was this about money? No. The rationale was clearly about moral rights. If you read about moral rights, you’ll find a part of it is attribution, or the right to be given credit for a work. Giving credit and asking permission were the reasons that stood out in the conversation I read.

Now here’s the twist. It was a discussion at PTA Forum (powertabs.net), a popular online tab community, and the “works” I’m referring to are tablature created using Power Tab software. Yes, that’s right. The musicians I was talking about are the tab writers, and the tabs are of other people’s copyrighted songs. That’s not to say they aren’t talented. Obviously it takes a musician to create quality tabs by ear, but they want control of tabs of other people’s original work?

I hate to use a word such as hypocrisy, but what else would you call this? On the one hand you have a tab that’s being created and shared without the original songwriter’s permission, and on the other you have a tab being shared without the tab writer’s permission. One could argue the tablature is an interpretation, and not bound by the original work’s copyright. However, in my layman opinion, that wouldn’t hold up in a court of law.

Regardless of what the law says, if you respect the ‘control’ argument of copyright, then you’ll realize part of having control over a song is determining the different implementations of that song, including tabs.

If you take my reasoning to its logical conclusion, it sounds like I’m making a case for the MPA, and their supposed crackdown. Not necessarily. So I don’t become a hypocrite myself, I’ll try to explain. My complaint is that someone wants control over something, but won’t afford the same courtesy to others. Maybe the solution is for both sides to lose a little control. The MPA shouldn’t fret over unauthorized tab sites, and the tab creators shouldn’t worry if their tabs are used at different sites.

After all, if you read the U.S. Constitution, the point of copyright isn’t money or control. It’s about the greater good.

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Guitarist Brian May of Queen fame had a few words to say about the lyrics and tab situation. First of all he admits that copyrights are a good thing. He’s entirely in favor of musicians getting their fair due, but doesn’t think the Music Publishers Association’s threats are appropriate, nor are their intentions in the right place. He had this to say:

Reading between the lines it seems much more about trying to protect the Publishers’ traditional income on printed sheet music.

To read more, refer to his website entry from December 18, 2005: TAB SITES FACE LEGAL CRACKDOWN

I’ve been reading skeptical opinions on message boards that the lyric/tab site crackdown is all a ruse.

BBC News (who first reported the story) is a reputable source, so right there we have little reason to believe it’s a hoax. The thing is some people are curious why the MPA’s site doesn’t mention it, in addition to the belief that every other story on the web references only the BBC article.

I don’t have any inside information, but my guess as to why the MPA site doesn’t mention the impending crackdown is because the site isn’t frequently updated, and until something actually happens such news wouldn’t be appropriate for their site.

As for the BBC News-only theory, I have found at least one other article that claims to have gotten additional statements from MPA president Lauren Keiser.
Labels Target Lyrics Sites [redherring.com]

Mr. Keiser ignited a flurry of criticism after telling the BBC last week that, in addition to fines and shutdowns for the scofflaws, “[if authorities can] throw in some jail time, I think we’ll be a little more effective.�?

He told RedHerring.com, “The record companies are seeking monetary settlements. We might get the justice department involved as an added vehicle.�?

Is the United States getting increasingly out of touch with the rest of the world where technology matters are concerned?

read more | digg story

This Digg link is an opinion piece about French Parliament’s recent proposal to allow P2P downloading in combination with a tax on ISPs to compensate copyright holders.

I’ve been keeping track of the pros and cons of file sharing, and the “out of touch” criticism goes hand-in-hand with my argument “The Internet is global, and the RIAA is forcing American laws on the world.”

As I understand it, France’s copyright bill is still in progress, so it’ll be interesting to see how this story develops.