Klarinet Archive - Posting 000229.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] Derivative Works
Date: Wed, 11 Feb 2009 15:25:09 -0500

On Wed, Feb 11, 2009 at 12:41 AM, Kevin Fay <kevin.fay.home@-----.net> wrote:

> Well, what can I say - you're from that left-coast copy-left law school -
> from the college with the sloppy band, right? ;-)

Actually, no. There's another lawyer on the list who went to
Stanford. I went to University of Texas. Of course, probably our
most prominent IP professor at the time (Mark Lemley) now teaches at
Stanford, and his replacement (Tony Reese) came from Stanford, so what
does that say? :-)

> The publishers just won't care if the copy doesn't
> supplant a sale, and this doesn't - it makes the purchased part work better.

Exactly. It is interesting to note, though, that there is a line of
cases that seem to suggest a general principle that this sort of
copying (copying for the sole purpose of making one's purchased copy
more usable) is fair use. The Sony case about "time-shifting" is one.
Atari vs. Nintendo 975 F.2d 832 (Fed. Cir. 1992) is another (making
an intermediate copy for the sole purpose of understanding the
purchased work is fair use--in this case, it was disassembling object
code. In fact, there's nice quote from that case, "The Copyright Act
permits an individual in rightful possession of a copy of a work to
undertake necessary efforts to understand the work's ideas, processes,
and methods of operation.") RIAA vs. Diamond 180 F.3d 1072 (9th Cir.
1999) is yet another (suggesting that "space-shifting" purchased audio
recordings by copying them to an MP3 player or other device is fair
use by analogy to Sony and also suggesting that the "facilitation of
personal use" [same justification as for time-shifting in Sony] was
the main legislative purpose behind the "Audio Home Recording Act"
amendments to Title 17).

If you follow that logic, it would seem that page-turn copies, making
an enlarged copy if you have bad eyesight (or making a braille copy if
you're blind), and transposing an A clarinet part so you can play it
on your Bb, *ought* to all be considered fair use as long as you
possess a lawfully-purchased copy.

The thing I don't like about the Guidelines is not so much that I
think they are overly restrictive, but that they don't seem to bear a
lot of relation to the way the law works in practice. For instance,
why does it make any difference for fair use purposes if copies are
used for a performance or not? I don't see how that fits into the
4-factor analysis, especially given the fact that performance rights
are a whole other ballgame--it seems like a somewhat arbitrary place
to draw the line.

On the other hand, the A-3 guideline that says that you can edit or
simplify a work as long as the "fundamental character" of the work
stays the same and you don't mess with the lyrics seems like it could
be a "harbor of dubious safety," because you have to ask yourself
where the boundary is between permitted editing/simplifying and making
an unauthorized arrangement. Reconfiguring the way the pages are
printed to make page turns easier is one thing, but what about
changing tricky rhythms or making chord substitutions?

Oh well, I guess we'll have to wait until somebody sues one of those
digital music stand companies to get something resembling an
authoritative answer to all this. ;-)

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