Dave's Top Eight

1. Jerry Reed...Revisited by Darrell Toney (reviewed 6/07) (5 Stars)
2. Sounds Like Sunday by Janet Paschal (reviewed 5/07) (5 Stars)
3. True To The Call by Kingdom Heirs (reviewed 3/07) (4 1/2 Stars)
4. Revival by Gold City (reviewed 10/06) (4 1/2 Stars)
5. Get Away Jordan by Ernie Haase & Signature Sound (reviewed 2/07) (4 1/2 Stars)
6. Breakin' Chains by Three Bridges (reviewed 5/07) (4 1/2 Stars)
7. Big Sky by The Isaacs (reviewed 4/07)
8. Skywriting by Mercy's Well (reviewed 7/07)

Click title to purchase at CBD.com...click artist name to read Dave's Review. A CD will automatically fall out of the Top Eight after twelve months if no CD surpasses it before then.

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March 26, 2007

Piracy, Copyrights, and Fair Use

Daniel Mount posted an excellent article on the topic of audio piracy and how it affects Southern Gospel artists a couple of days ago. Click HERE for the full article. Since then, Adam Edwards has posted a response on his blog that's well worth reading.

Mount interviewed Scott Fowler of Legacy Five, Gerald Wolfe of Greater Vision, and Daniel Ball of the Ball Brothers. A couple of quotes in Mount's article caught my attention. One of his questions was whether or not the artists were bothered when a portion of one of their songs was posted on the internet...a short clip, in other words.

Here are their responses quoted directly from the article:
Scott Fowler said that sharing “a clip of a song or video” didn’t personally bother him, though “sharing a song in its entirety is wrong.”

Daniel Ball actually encouraged it, provided the person asked permission first: “If someone asks permission to post clips, we always say ‘yes.’ It’s free advertisement.”

Gerald Wolfe, however, took a somewhat different approach. In response to a question asking if it made any difference to him if fans shared a clip of a video or song, he said: “The short answer to that question is ‘yes,’ but the entire answer is that my opinion of it doesn’t matter. It is a question of whether or not Christians follow the guidelines of Federal Copyright Law concerning transmitting material that is protected by the Copyright Law. Christians are admonished by scripture to obey and follow the laws of the land.”

Wolfe's answer might be construed as "preachy," but I didn't take it that way. I actually agree with his logic. However, I don't agree with his interpretation of the law. I think Fowler's response was the most correct.

You see, the problem with copyright law is that it isn't exactly concrete. Too many issues have been left up to the courts to decide and every time Congress re-writes the law, they make it more convoluted.

There are fuzzy areas in Chapter 1, Section 107 of the code where "fair use" is defined. Let's look at that portion of the law for a moment...
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

These "factors" to "consider" serve to make a relatively simple portion of the law more difficult to understand. Why doesn't the law simply stipulate a percentage? What does "the nature of the copyrighted work" have to do with fair use?

If it wasn't legal to share a portion of a song, it wouldn't be legal for me to quote a portion of Mount's article above for the purpose of commenting on it. Fair use provisions stipulate that I can, though. I can even quote otherwise copyrighted material BEFORE it's published. In his article, Mount pointed out that Ball's answer mentioned he preferred that fans ask permission before sharing a clip, but if it's fair use, then permission isn't required.

Fowler said it didn't bother him, which, in my opinion is the correct response, because I understand the law to say it's "fair use" to share an insubstantial portion of a copyrighted work as long as I'm doing it for one of the reasons listed.

Another point that is significant:
Music publishers, broadcasters, artists, etc. are in the business of protecting their copyrights, as well they should. However, they sometimes to word the law as they'd LIKE for it to be rather than the way it actually is.

Example 1a:
If you are an artist attempting to record a song held by Gaither's copyright management company and you request a mechanical license, they will charge you a nominal "processing fee" that is over and above the royalties you actually owe. The law does not provide for publishers to collect any extra fees. In fact, mechanical royalties are typically set up so that the publisher splits all income with songwriters. Gaither's company believes it's fine to charge honest artists $10 more than the law requires on every mech license they issue. Most independent artists, not knowing their rights under the law, go along. The last time I dealt with Gaither's company in this capacity, I exercised a compulsory license so they couldn't do this. We were only running one short run of CDs (300 or so), and so I paid them in full and declared the CD "out of print" at that point so I wouldn't have to go through the hassle of sending them installments on the number of CDs we "distributed." All this could have been avoided if they hadn't tried to soak me with an added fee.

Example 1b:
If you are an artist attempting to record a song held by Word Music and you request a mechanical license, they will direct you to use the Harry Fox Agency. The Harry Fox Agency, in turn, will not deal with royalties on projects with small runs. They only license projects of 500 or more, so you have to pay a minimum if you use Harry Fox. The law does not provide for publishers to require a minimum. In fact, the law stipulates that you have the right to demand a compulsory license at the current statutory royalty rate and you can't be refused.

Example 2:
If you want to post a short clip on a website, your own or otherwise, the fair use section of copyright law CLEARLY gives you the right to do this as long as it is for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." However, when a person recently posted a 45 second clip of the Super Bowl copyright notice on YouTube where the ONLY purpose is for users to see it and leave comments, the NFL found it and demanded that it be removed. The game was more than two hours in length.

The problem is that the general public doesn't know the law, or only know a version that's far from the truth. On one side of the coin, you have pirates who either don't care or will justify their actions due to poorly written copyright law. On the other side of the coin, you have "sheep" who blindly respect anyone who speaks with an air of authority and end up assuming some things are illegal that are in fact, legal. An official "notice" from a huge organization like the NFL carries the weight of authority to the point that YouTube sides with the NFL and removes what was a perfectly legal clip.

By the way, that clip was posted to make a point that the NFL copyright notice is over-reaching the language of the law.

Getting back to Mount's article, Scott Fowler was quoted in another area as saying: "I don’t know how prevalent audio piracy is in our business, but I assume it will only get more pervasive as our audience embraces current technology. With the advent of mp3 players, iTunes and computer technology, it is certainly easy to do."

This is another comment with which I agree...but (you knew that was coming didn't you?)...I think it's incorrect for Fowler to include iTunes in his reply. iTunes does NOT make it easy to share music. iTunes doesn't make it particularly easy for legal users to do as they please with the music they purchase from iTunes. If I want to buy a song using iTunes and listen to it on my iRiver, for example, I can't simply copy it to my iRiver. I have to burn it to a CD, rip that CD as an MP3 file, and only THEN can I listen to the music I purchased as I choose. If I had a proprietary iPod, this wouldn't be a problem with iTunes, but then I'd have the same issue with any music I purchased in WMA format from Walmart's music download service.

Of course, the pirates find ways around this...obtaining files illegally via a peer-to-peer (P2P) network or otherwise. Digital Rights Management (DRM) serves only to make life more difficult for LEGAL users. As soon as the music industry wises up and stops making life more difficult for people who are willing to pay for their products, the better off they will be.

Also, MP3 players themselves don't really make it easier to abuse the law. MP3 players may be the reason why so many people choose to abuse the law, but the player is just a player. It doesn't provide the technology for grabbing illegal files...lay that blame at computers, P2P networks, and whoever first digitized a song.

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Required reading:
Brad Templeton's Ten Big Myths About Copyright

Also recommended:
Visit the Electronic Frontier Foundation



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posted by David Bruce Murray @ 9:01:00 PM


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