Klarinet Archive - Posting 000221.txt from 2009/02

From: "Kevin Fay" <kevin.fay.home@-----.net>
Subj: RE: [kl] Fair Use
Date: Wed, 11 Feb 2009 01:26:58 -0500

Jonathan Cohler posted:

<<<What is clear so far is that you have not shown a single case to support
your claim that copying over a marked-up part that one owns is a copyright
violation, or any case even vaguely similar to that.

Given the fact that this type of activity happens every day in every musical
institution and musical environment all over the world, it is clear that no
lawyers feel they could win such a case. If they thought they could, there
most certainly would be many high-profile HUGE lawsuits over it, because of
the huge magnitude and pervasiveness of the practice.

Conclusion: it is highly likely that this is NOT a copyright violation.>>>

You've again shown your ignorance of how the law works. Fair use is an
affirmative defense - the burden is on *you* to show that your use is
"fair." All the plaintiff has to do is show is that you've made a copy of a
work under copyright without permission; *you* have to justify that your use
is fair.

Can you show me a single case where copying music for performance is
allowable fair use? No, you cannot. Conversely, there is significant
legislative history, the result of negotiations by a number of concerned
parties, on what the fair use *should* be. They took the trouble of having
it included in the legislative history of Section 107. What basis do you
have to argue to the applicable circuit court of appeals that they should
ignore a clear legislative history in what fair use should allow?

The legislative history of Section 107 contains a pretty simple prohibition:
"Copying for the purpose of performance except as in A-1." A-1 allows
"[e]mergency copying to replace purchased copies which for any reason are
not available for an imminent performance provided purchased replacement
copies shall be substituted in due course." Everything else - even page
turns - is not permitted, and actionable by the holder of the copyright that
you're ripping off. Congress adopted this interpretation in codifying the
fair use defense; you have a very tall burden going into an appellate court
and arguing otherwise.

Your assertion that "there most certainly would be many high-profile HUGE
lawsuits" is wrong, and lucky for you that's the case. The sad truth is
that you - and musicians who wear black tie to perform in generally - are
not worth enough to sue over. Even statutory damages wouldn't cover the
fees required to bring an action for this. If you were copying or making a
derivative work of something economically significant, like architectural
drawings or software source code, you'd be roasted on a spit.

Even for music, the damages *are* huge when the revenue is significant. Ask
George Harrison for "My Sweet Lord"! There are so many cases upheld where
song A has to pay because it sounds just a bit too much like song B, without
even getting to allegations of copying the sheet music. Surely you don't
suggest that your arrangement of the Prokofiev flute sonata isn't a
derivative work? I thought your argument was that it's not derivative at
all, but just a copy?

The bottom line here is that you are taking an extremely aggressive position
on fair use. I really don't care - we can always use test cases. If you're
the guy that brings down the farce of the Sonny Bono law that put public
domain music back into copyright, I'm all for it.

OTOH, to the extent that you advocate that good working people - like
schoolteachers - photocopy their careers into oblivion, your public advocacy
is dangerous. If you Google any combination of "copyright" "policy" and
"music" you find hundreds of school districts and academic institutions all
telling their staff the same thing - follow the joint organization
guidelines, or risk getting fired. Why? Easy - because the schools don't
want to Write Big Checks when you Do Something Stupid.

Please feel free to copy music for performance. Heck, make unauthorized
arrangements while you're at it. You could be famous one day.

kjf

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