Rampant Copyright Violations

by Barry Drogin

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We all lead many lives, share multiple identities, identities related to our ethnicity, our religion, our geographic region, our age, our home style, our life style, and our interests. Most people, however, have one profession. I have two, and they straddle “The Two Cultures” (as initially defined by C. P. Snow in 1959).

Oh, sure, there are scientists who play the violin, and actors who know a little carpentry, but I really do go beyond the simple professional/hobbyist distinctions. I attended Emerson College in Boston for two years, where I majored in theatre directing, minored in music composition, and my extra curricular activities included not only managing the college’s mainstage box office, directing and stage managing productions for a student-run production company, and composing incidental theatre music and choral pieces, but I also was a reporter for an alternative college newspaper, whose editor-in-chief was a journalism major. I transferred to The Cooper Union in New York City, where I majored in electrical engineering and minored in computer science, and my extra curricular activities included being a reporter, news editor and editor-in-chief of the college newspaper, organizing a talent show and jazz band, and fulfilling commissions for individuals, professional dance and theatre companies, and the college classical music ensemble. During my college years I also studied music theory and orchestration privately, and while I was obtaining my master’s degree from Cooper in communications theory and coding I taught college courses in math and engineering and wrote and edited a staff newsletter for the faculty union while serving as a shop steward, started a music publishing company, collaborated on a one-act opera, and won a national Tau Beta Pi Laureate Award for my diverse achievements in music and journalism.

The oddities of the culture dictate that, although I have bachelors and masters degrees in engineering from an accredited and prestigious engineering college, I am not a registered “professional engineer” and must be careful not to claim that I am offering “engineering services” as a consultant. On the flip side, so far the IRS has not given me problems with my work as a “professional musician” and “professional journalist,” and I’ve earned money from ASCAP, been interviewed twice on the radio and been paid many times for my writing, but that incomplete MFA, and the fact that I have never taken any journalism courses, results in some defensive sneering from some colleagues, even if I have earned more than some of them have from my music and my writing. Go figure.

Whether or not I truly have an engineering career, a music career, and a writing career, I leave to others to pass final judgment on, but I do find it of continuing interest that I first learned about and used the Internet because of my music career, not my engineering career, although I did get Internet access at my engineering workplace soon thereafter. I find it so interesting because my engineering career would now be impossible without Internet access, whereas, although Internet access is a critical component of marketing for my music and writing career, I am writing this now off-line, and composition takes place off-line as well.

(Okay, I admit, I got the C.P. Snow date above, and the Copyright Office citations below, off of the Internet in-between my typing. I’m erudite, but not to the point of winning trivia contests.)

This is not to say that the Internet has not had a profound impact on the economics of music and writing, an impact I observed from the Internet’s early days and have followed closely. Frankly, anyone who is too young to have lived through the Napster ruling and the MP3.com IPO understands the impact of the Internet in a second-hand manner, as history, not personally. The porn industry effected these seismic changes first – I remember in particular an early book about the Internet explaining the world of Usenet groups, and presciently, humorously, and bluntly describing the pornography groups as consisting of nothing but “rampant copyright violations.”

It was true. At that time, no one had the bandwidth to view movies on-line, so on-line porn consisted of pictures culled from one of three sources: home-grown amateur snapshots, captured video screen shots, and scanned magazine photographs. The first was of poor quality and considered special-interest, the second was of poor quality but at least resulted in stimulating sequences, and the third was of excellent quality, and clearly constituted, as that author put it, rampant copyright violations. It was all free, of course, and nobody wanted to talk about it. When the MP3 groupies started to brag about their new business models and I deigned to bring the porn industry experience into the discussion, the groupies would be shocked – shocked! – that I should admit to any knowledge of everyone’s dark secret.

Let’s jump ahead a decade. Now people are turning themselves into mini video production facilities. They own digital cameras and camcorders and even their cellphones can be used as webcams. People copy and paste entire articles, essays, poems and photographs into their e-mails, listserv and bulletin board postings, blogs, and websites. The only difference between these people and myself is that, on the rare occasions when I do so myself, I feel guilty and dirty and criminal about it, like a remorseful shoplifter. I delete paragraphs to try to justify fair use, and I obtain permission when I feel it is appropriate and necessary, but, like pot, I have to admit I’ve violated copyright in every medium at least once, with at least the additional caveat that I have known that what I was doing was illegal.

Law consists not only of statute, but of subsequent rulings based upon that statute. So Section 107 of Title 17 of the United States Code places “fair use” limitations on exclusive rights “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, “ but the Copyright Office itself tells people:

1. “There is no specific number of words, lines, or notes that may safely be taken without permission.”
2. “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

And, my favorite,

3. “The safest course is always to get permission from the copyright owner before using copyrighted material. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of ‘fair use’ would clearly apply to the situation. If there is any doubt, it is advisable to consult an attorney.”

That third principle is not, “When in doubt, get permission.” As I learned after a shocking argument with a university press publisher, the principle, is, “Get permission, unless you’re really, really sure you don’t need to.” The implication is actually, “If it is practicable, even if an attorney has assured you it is fair use, get permission.”

On many, many occasions, I’ve obtained permission, either for free or for a very modest and reasonable fee. On a few rare but memorable occasions, I have not been granted permission, and I’ve seen entire projects destroyed or change course as a result. I have stories.

As I hope we all know, the “everyone does it” principle is not a valid legal argument in court. If a cop gave me a ticket for jaywalking outside of my apartment house, I’d walk another block and into the precinct house and demand to speak to the sergeant on duty, and the mayor would soon be out of a job if he or she pushed it, but I know I won’t be able to do much about it, and that I’m legally wrong. (To contrast, all of New York City followed the tale of the guy who avoided jury duty by paying someone else to attend, and still was found not guilty because the government had not sent him his jury duty notice by certified mail and so couldn’t legally prove that he had been called. Saved by the cost of postage!)

Section 107 includes two contrasting fair use factors:

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 effect of the use upon the potential market for or value of the copyrighted work.”

On the one hand, under Section 109, “the owner of a particular copy … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” Put simply, I can sell used copyrighted property for a profit. On the other hand, if I give it away for free, if I can prove that I derived no personal profit from the transfer, if I distributed it in order to comment on it (in this case, the factor of “the amount and substantiality of the portion used in relation to the copyrighted word as a whole” applies), I could still be financially liable for effecting the potential market for the work.

You want to know where the line is drawn? If I pass on an original copy to a friend or colleague, I’m not liable. If I make a copy and pass it on to a friend or colleague, I am liable. The court case involved a research library that made copies of articles within a scholarly publication for distribution amongst researchers. The library LOST that case.

Now consider the Internet. An author writes an article for The New York Times. The New York Times pays that author. The article is copyrighted by The New York Times, not by the author, which, except for book excerpts or columnists, is typical. The Times publishes that article in a printed edition full of advertisements that is sold to subscribers and through street vendors and machines, and in hotels and newsstands and supermarkets and the like, and they also publish it on the Internet in an on-line edition full of advertisements that is available to subscribers, for two weeks to site visitors, and thereafter, article by article, for purchase as a reprint. You can see the headline, you can read a line or two, the fee is large in comparison to the cost of the entire print newspaper itself and compared to the cost of copying it at your local library (for research purposes or personal use only, natch), but isn’t terribly expensive, if you really want to get your hands on it.

Somebody copies that article off of the Internet and posts it to their blog, or to a listserv, or to a bulletin board. Google indexes it, so that anyone can now access the entire article for free. That copy has just seriously impacted upon the potential market for the article. The only reason that anyone is getting away with this is that the legal staff of The Times is devoting its resources to suing the biggest fish in this pond, and you’re a small fish. It’s not because it is not a copyright violation. It is not because it is not rampant and doesn’t destroy The Times’ market for what it has paid for. The Times wants you to read the article. It wants as many people as possible to read the article. It just wants to get paid, that’s all.

Now, The Times has every right to decide to give away some of its content for free. It has every right to put a notice granting everyone in the universe the right to reproduce a particular article in any medium they want. Bands that post MP3s to MySpace.com grant that right. An individual on MySpace.com can set up his or her own webpage where the band’s MP3 will automatically play whenever you visit the individual’s webpage. The band has granted MySpace.com, and the individual, that right. But the band doesn’t post everything. And if the band does post everything, then it is more interested in selling high-fidelity CDs, or in getting performance gigs and radio play, than it is in selling studio recordings (or cheap garage or “live” recordings, for that matter).

I live in a world of jaywalking and speeding and skipped jury duty and cheating on your taxes and shoplifting and illicit drugs and illegal immigrants and political corruption and rampant copyright violations. But I would be critical of someone who advocates jaywalking in Los Angeles – it’s too dangerous. I don’t cheat on my taxes or shoplift or use illicit drugs or employ illegal immigrants (and by process of elimination I don’t admit or confess legally to any of the others, except to the extent that I have done so in this essay – I otherwise invoke my Fifth Amendment right against self-incrimination.).

Okay, so my pet peeve is rampant copyright violations, because it is so rampant, and because, not only does everyone do it, but everyone, including professionals who should know better, doesn’t even appear to be cognizant of the fact that they are doing it. At least I do so knowingly and sparingly and, if I am caught, I will pay for my violation.

Because I do business in the real world, I also use business models that are reasonable and grant permissions that may otherwise be violated anyway. Here are some examples on this website:

1. The grand rights permissions for “Love and Idols.”
2. The permissions granted for certain scores from my catalog published on this website, such as “Song of Songs.”
3. The free MP3s on this website.

There are also four free MP3s on MySpace.com, and mono recordings that are streamable over the Internet on Kalvos & Damian’s New Music Bazaar. I give permission to New Music Connoisseur to publish my column in their print edition, and sometimes on-line, but I retain the copyright, and re-publish it on my website when the next issue is available. I give them a time-limited exclusive.

I am not against new business models. I admire authors Richard Foreman and Charles Mee, who give away their material for free, who encourage others to appropriate their work. I should be able to sample a measure of music in order to comment on it, and I think people who collage audio and pictorial and video samples should be able to do so, if not freely, than at least easily, for modest fees or percentages. I don’t want to live in a world of nothing but royalty-free clip art, either. I want Mickey Mouse to lapse into the public domain, already (the U.S. Constitution lets Congress pass laws to secure for authors and inventors “limited times” to exclusive rights).

I don’t want to see a mish-mash of copyright violations, as I saw recently on a professional journalist’s “personal” website. He posted some of his poetry, which he probably has exclusive rights in. He reproduced an article he wrote for the newspaper that employs him, which I wonder whether he has permission to do. He reproduced an article from The New York Times, which I am sure he doesn’t have permission to do.

And, to cap things off, he created a little video, I think of his wife, which he accompanied by a song he likes that he had bought from iTunes. The video wouldn’t play on my computer because I had not purchased the song from iTunes (although I was given the electronic option of doing so, right then and there). I know that he can obtain an Internet broadcast license from ASCAP, whose cost will reflect the minimal traffic his site will attract (although if it turns out that he attracts a lot of traffic because word gets out that you can hear that tune for free on his website, he’s going to be coughing up a lot more money).

Some people may be annoyed that Apple has protected that song and denied him the right to freely publish his little tribute to his wife, but I appreciated this first small step against rampant copyright violations. If my “professional” colleagues in the music and journalism business don’t understand this, who will?

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Last Updated: February 21, 2011