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Todd Jonz
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« Reply #60 on: May 15, 2007, 10:24AM »


The Bush administration is shopping a bill around Congress called the Intellectual Property Protection Act of 2007 which, according to a C-Net article, would:

  • Criminalize "attempts" to infringe copyright (whatever that might mean);
  • Permit life imprisonment for using pirated software;
  • Permit wiretaps on anyone "attempting" to infringe copyrights;
  • Allow a computer to be seized if it is "intended to be used in any manner" to commit a copyright crime;
  • Impose penalties for actions that were "intended to consist of" unautorized distribution of copyrighted materials.

Intentions?  Sounds a lot like Minority Report to me.
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BGuttman
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« Reply #61 on: May 15, 2007, 11:29AM »

Seems a bit drastic to me.  You can get life imprisonment if you use a copy of some software for personal (or perhaps training) use once?

You can get life in prison because you took that copy of Windows 2000 from the old computer and put it on the new one?

Have the "copyright police" scanning all computers for pirate software and impounding them?  Got a big storage area?

Wiretaps to check for copyright infringements?  I think you will be wiretapping the entire country!

Gonna put every kid who rips a track from YouTube in the slammer?

Hope he has money to build a lot of prisons; he's going to have half the country locked up!
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Bruce Guttman
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« Reply #62 on: May 15, 2007, 01:51PM »

It would be great if this got passed. 

I mean, if a future president ever commits us to unwinnable wars with no compelling national security interest, bankrupts the country, rolls over at every opportunity for big business and throws the Constitution under the bus, he'll get thrown in jail for illegally using copyrighted material belonging to George W. Bush.

Sorry, off topic, inappropriate. 

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« Reply #63 on: May 15, 2007, 02:12PM »

The Bush administration is shopping a bill around Congress called the Intellectual Property Protection Act of 2007 which, according to a C-Net article, would:

  • Criminalize "attempts" to infringe copyright (whatever that might mean);
  • Permit life imprisonment for using pirated software;
  • Permit wiretaps on anyone "attempting" to infringe copyrights;
  • Allow a computer to be seized if it is "intended to be used in any manner" to commit a copyright crime;
  • Impose penalties for actions that were "intended to consist of" unauthorized distribution of copyrighted materials.

Intentions?  Sounds a lot like Minority Report to me.


Just read the article.  Pretty scary stuff.  It's like 1984- twenty three years too late.  Doesn't the government have enough to worry about without trying to enforce this proposed law?  Life imprisonment for pirated software?  Holy Crap.     :-0
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« Reply #64 on: May 19, 2007, 08:55PM »

Crap.  I just listened to "JJ's Broadway" and was thinking some of those would be a cool arrangement.  Since I did some roadmaps in my head, is that an attempt at copyright infringement?
Crap. 
I would use my computer to genetrate the parts.  Gone.
I listened to it in my truck.  Gone.
My daughter was in the car.  Did I endanger her by exposing her to my dark criminal activity?
Sheeesh.  Minority Report is right.
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bickle
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« Reply #65 on: Jun 05, 2007, 05:24PM »

I've had an interesting question come up elsewhere.

Is an unauthorized derivative work covered by copyright?

For example, suppose somebody makes a really hot, but unauthorized, arrangement of a song, and puts it up on a website. The owner of the copyright finds it, decides it's actually pretty good, and publishes it. Could the person whose (unauthorized) arrangement was effectively stolen after they stole the song in the first place sue? As I understand things, the arrangement is a separate issue that could be copyrighted just as the original composition was, which would mean it's covered by copyright as soon as it's created and fixed and all that. If the arrangement was unauthorized, then complaining that somebody stole it would be tantamount to a (potentially very expensive) admission of guilt. But would the fact that it was unauthorized do anything to change legal standing? Is this addressed anywhere?

I've found a few cases of fan fiction where a fic writer threatened to sue an original creator, usually for cribbing a plot that the fic author came up with using the creator's characters, but I haven't managed to find anything that actually went to court. As far as I know, this is essentially an academic question that might not have an answer. I just know there are some folks on here who have dug more deeply than I have.
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BGuttman
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« Reply #66 on: Jun 05, 2007, 06:22PM »

The way I understand it, Bick:

1.  The original copyright applies to the original work.  Any derivative offered for sale must be approved by the copyright owner.

2.  Any derivative work will retain any rights not reserved for the original copyright holder.  i.e. if an unauthorized arrangement of a tune is created, the arranger may not sell it because he does not have permission from the original copyright owner, but the original owner cannot steal it either because the existence of the derivative work is because of efforts of the copyright violator.

In cases like this there can be cross-licensing agreements to allow the arrangement to be sold with royalties going to both the originator of the work and the creator of the derivative work.

Of course if one side decides to be intransigent... :/
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Bruce Guttman
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Todd Jonz
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« Reply #67 on: Jun 15, 2007, 12:39PM »


Great hypothetical, bick.

> As I understand things, the arrangement is a separate issue
> that could be copyrighted just as the original composition
> was...would the fact that it was unauthorized do anything
> to change legal standing?  Is this addressed anywhere?

Here are the pertinent sections of U.S. copyright law that I think would apply to this situation:

§101 Definitions

...A “derivative work” is a work based upon one or more preexisting works, such as a...musical arrangement...

§106 Exclusive rights in copyrighted works
 
The owner of copyright under this title has the exclusive rights...to prepare derivative works based upon the copyrighted work...

Since it makes the language of what I'm about to write a lot simpler, let's assume for the moment that it's the composer who holds the copyright on the original work.

As I read the two sections above, the arranger holds no legal rights to his unauthorized arrangement, having violated the exclusive right of the composer to create derivative works.  It doesn't sound to me as if the arranger would have any legal recourse if the composer were to usurp the unauthorized arrangement and do with it as he pleases -- or, at least, the arranger could not look to copyright law for protection.

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« Reply #68 on: Jun 26, 2007, 07:38PM »

Seems like these would be in violation every time they did a song without explicit permission from the owner, which is 99.9999% of the time. No?
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BGuttman
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« Reply #69 on: Jun 26, 2007, 08:00PM »

There are two issues with copyright infringement.

Sure, every time I play a song without paying a performance royalty I am breaking the law.

The royalty is usually under a dollar for each performance.  Is it worth it to hire a lawyer at $500 an hour (20 hour minimum) to try to get the 80 cents in royalty?  No.  But if I cut a record and start selling ten thousand copies it now becomes more reasonable to try to recoup the payments.

If I put the recording on YouTube and allow everybody and his dog to download it, the copyright owner is now losing big $$$.

Get the picture?
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Bruce Guttman
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Todd Jonz
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« Reply #70 on: Jun 26, 2007, 08:02PM »


Another good question, Mark.

My comments on bick's hypothetical were about the arrangement with regard to publication rights.  In this case I think the composer holds all the cards.  Performance is another matter.  The venue is responsible for paying royalties, not the band, so a cover band is protected.  The same would apply to a recording, in which case the record company would be responsible.

Now, is it kosher for a cover band to perform or record and unauthorized arrangement?  Beats me!  I've asked this before but nobody has ever offered an answer.  I would guess that as long as the composer is getting his royalties he'd be happy.

Dose of reality:  Are unauthorized arrangements performed frequently?  Sure they are.  Are they legal?  Perhaps not.  Is my local band liable to get sued?  Highly unlikely.  While we've spent a lot of time in this thread discussing ethics and legality, it would appear that, in practice, they often have very little to do with reality.

(UPDATE:  You beat me to the <Enter> key, Bruce!)


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« Reply #71 on: Jun 30, 2007, 11:08AM »

My best guess is that performing an unauthorized arrangement in an ASCAP and BMI licensed venue is completely legal. If not, where would you draw the line?

1) A written out arrangement for 18-piece band?
2) A reharmonization of a standard, scribbled down on a cocktail napkin?
3) Redoing a rock song as reggae, with no written arrangement?
4) Playing a song much faster or slower than the original?

At some point, a really bad copy band could be sued for unintentionally playing an unauthorized arrangement.

I think you can play a song any old way you want in a license-paying establishment, whether the arrangement is written down, partly written down, or unwritten.

Selling the arrangement would be another story.
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« Reply #72 on: Jul 03, 2007, 01:11PM »

Having recently done a lot of reading on copyright law, here is what I understand about performing arrangements:

* Unauthorized performances and arrangements are unauthorized, and need authorization to become legal.
* Legal arrangements are arrangements with permission from the copyright holder.
* Performances of unauthorized arrangements are legal 1) when in an educational setting (such as a school band, but not a pro group who travels to a school for pay), 2) when the performance of the original is authorized, and 3) when the arrangement a) keeps the character of the piece the same, b) changes no melodic material, and c) changes are only to fit the piece to the ensemble (such as substituting an instrument or having more players on a part than originally intended).

Piano man,

According to law, all 4 are illegal. (No. 4 falls under "substantially changes" the character of the work, and no. 2 is an arrangement only legal if the original is out of copyright.)
Performed arrangements are not legal by law, but may be permitted by the terms of your specific licensing agreement. For example,
http://www.ascap.com/licensing/about.html
Of course, it says "ASCAP does not license the right to print copies of musical works, nor does it license rights to make adaptations or arrangements." But, that is unclear whether it talks about printing, or printing and performing.

Hopefully someone will know more about the specifics of the ASCAP and BMI licensing terms. (A quick search didn't turn up any legalese contracts, but gave many general FAQs and brochures.) They would have to grant additional rights to allow for performing arrangements.

http://www.menc.org/information/copyright/copyr.html
http://publishing.wsu.edu/copyright/music_copyright/
http://www.copyright.gov/help/faq/
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« Reply #73 on: Jul 04, 2007, 03:29PM »

Thanks for the info.

I assume that when I pay BMI and ASCAP fees for my clubs, I'm covering in advance the rights of my paid performers to play songs licensed under those organizations. Otherwise, what would I be paying for? And it's not cheap.

I think arranging a song for an eighteen-piece band would be legal, because it fits all the criteria. There's no substantive difference between writing out the parts and singing them to each player and learning them by ear.

It looks like you can copyright a song and benefit from its licensed performance, then retain the right to prosecute those whose versions you don't care for.

Presumably, if I throw a couple bars from "If I Only Had a Brain" as a quote into an improvised solo during "Autumn Leaves" in a licensed club, I'd be violating two copyrights at once.

For that matter, a strict reading of the law as quoted would seem to make improvising over a copyrighted standard a violation in and of itself.

I won't argue with your interpretation of the law--you've done more homework on this than I have--but it looks like this one is so poorly written that it would be difficult to work without unintentionally violating it.
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« Reply #74 on: Jul 04, 2007, 08:24PM »

I haven't looked into how copyright affects jazz and other works containing improvisation. I found something quickly that is limited in its exploration, so, if you find anything else, I'd love to read more.

Here's something I found about improv:
http://www.iaje.org/article.asp?ArticleID=145

This shows how extreme the law can get when leaning more on the theory of law than what's done in practice:
Quote
This is complicated further in the U.S. by the doctrine of derivative works, in which a section of the American copyright law (unlike Canada's) reserves to the owner of copyright in a musical work the sole and exclusive right to make new works based on that work. This right does not exist in Canada, but it clearly does exist in the U.S. So technically, it is an infringement of United States law for any musician to improvise a solo over a protected musical work other than with the permission of the composer or the publisher. In Canada, however, even if the result is an infringing solo on the musical work on which it is based, it creates a situation of "blocking copyrights." The soloist isn't authorized to play the original solo, but the composer also isn't authorized to play the original solo (because the composer didn't compose it).

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Todd Jonz
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« Reply #75 on: Jul 05, 2007, 09:14AM »

Dwdraw writes:

> This shows how extreme the law can get when leaning more
> on the theory of law than what's done in practice...

And that's the real lesson to be learned from all of the posts in this thread.  Copyright law serves as a general guideline for those willing to make an effort to do the right thing, and to provide a framework within which a decision will be made in a court of law when two parties are unable to resolve their differences between themselves.

It's like highway speed limits.  Most of us agree that they're a good idea, but how many of us don't knowingly violate them from time to time?  Who hasn't performed an unauthorized arrangement in public, or made photocopies of charts to pass out to the band after putting the originals in the files for safe keeping?  My personal jihad is against permanently out-of-print works, which I freely copy and share without any reservation whatsoever despite the fact that it's a clear violation of copyright law.

If we can't improvise a solo, keep important works alive when they go out of print, or sing "Happy Birthday" in a restaurant that has no ASCAP/BMI license, then I assert that it is copyright law that needs to change, not the behavior a well-intentioned citizenry.




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« Reply #76 on: Sep 21, 2007, 03:03AM »

 If so, I'd like to update my personal copy of the FAQ posted above (for which I still hope to find a properly supported home on some site or other.)

Todd,

There is a primarily UK-based brass band forum at www.themouthpiece.com. They maintain a factsheet on UK copyright law (a collaborative effort, authored by Philip Sparke, among others). I think that your text on US law would be a valuable related addition to their "articles" section, possibly subject to some further collaborative effort over there. There would be no problems in adding it, as there seem to be here (unless it's gone up somewhere where I haven't been looking in the meantime).

The tMP UK copyright factsheet: http://www.themouthpiece.com/vb/showthread.php?t=19730
tMP forum owner: John Burns - john@themouthpiece.com

If you're still looking for somewhere to host, I'd suggest that you contact John, saying that I suggested that you do so. For reference, my username is the same there as here.

[I'll send you a PM saying this too]
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Todd Jonz
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« Reply #77 on: Dec 26, 2007, 12:06PM »


Thinking about building a reproduction of the Egyptian pyramids?  Then don't be surprised if you get a bill for royalties from the Egyptian government, which is on the verge of enacting legislation that puts them under copyright protection.

When I read the headline "Egypt to copyright pyramids" I had to check my calendar to make sure it wasn't April Fools Day.  I've read about a lot of copyright abuse, but this one really takes the cake!


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« Reply #78 on: Jul 18, 2008, 07:34PM »


I found a handy little Flash application on the net, a sort of Copyright Slide Rule, that can be quite helpful in determining if a work first published in the U.S. is still protected under U.S. copyright law based on its date of publication.

It won't give you a definitive answer in most cases, but it provides some useful guidelines (it also serves to illustrate just how convoluted U.S. copyright law has become.)  It does, however, define three categories of public domain works for which the conditions are relatively easy to verify:

(1) the work was published before 1923;

(2) the work was published between 1923 and 1977 without a copyright () notice;

(3) the creator of the work died more than 70 years ago.

The only definitive guideline of which I was previously aware was the first one; the last two are new to me (you learn something every day!)  I found the second one particularly interesting; it would appear to suggest that it's cool to digitize and share old recordings that don't display a copyright notice.  Start checking those old 78s!


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Todd Jonz
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« Reply #79 on: Sep 06, 2008, 07:07PM »


I have just discovered a wonderful web site called Public Domain Sherpa that was created by an honest-to-gosh attorney, not another well-intentioned armchair lawyer (like most of us who have debated these issues here in the Forum) or an RIAA flack who wants to spin reality to the advantage of the Entertainment Cartel.  I found several essays on this site that I thought would be of general interest to Forum members:


Reading these essays has caused me to question some of the information I included in the Copyright FAQ I wrote a few years ago in an attempt to compile the collective "wisdom" found in previous Forum posts.  For example:

    In the US, reprint editions of public domain music, no matter how beautifully typeset (and no matter how much effort went into the edition), are simply not copyrightable.

This negates the assertion in sections 8 and 13 of the FAQ that the engraving of Drei Equale that I created using Sibelius is protected by copyright law.  Changes to a work in the public domain must be "creative" in order to be protected by copyright, and regardless of how artistic I might think my new engraving is, from the perspective of copyright law my changes are "mechanical" and my engraving is a "reprint" that isn't protected.

By extension, I would guess that even my Sibelius file probably isn't protected either since it, too, is just another "mechanical" reproduction of Ludwig's notes.  But what about a MIDI file I generate using Sibelius?  Is it also mechanical reproduction or is it a "phonorecording", which is protected?

The more I read about copyright, the more confused I become.

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