Klarinet Archive - Posting 000237.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: RE: [kl] Fair Use
Date: Wed, 11 Feb 2009 16:53:43 -0500

At 10:26 PM -0800 2/10/09, Kevin Fay wrote:
>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.

We've already been through this a few times. Nobody has to show
anything unless they are sued for violation of copyright. Obviously,
if one is sued, they present a defense, affirmative or otherwise.
That the defense of fair use is affirmative is ***wholly
irrelevant*** to the discussion at hand.

The question was whether making a personal copy of a piece that you
own is a copyright violation. If it has never been adjudicated as a
copyright violation (and it has not) then VERY LIKELY IT IS NOT A
COPYRIGHT VIOLATION. End of story.

>Can you show me a single case where copying music for performance is
>allowable fair use? No, you cannot.

No, because nobody has EVER been sued for it, because it is quite
likely NOT ILLEGAL.

>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?

As I already pointed out a few times now, these guidelines were
MINIMUM standards. In other words, there are many other cases of
ALLOWABLE fair use that exceed these guidelines in various and
unspecified ways.

>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.

hese are MINIMUM guidelines. You need to read the document. The
first two paragraphs of the section entitled "Guidelines for
Educational uses of Music" follow:

"The purpose of the following guidelines is to state the
minimum and not the maximum standards of educational
fair use under Section 107 of HR 2223. The parties agree
that the conditions determining the extent of permissible
copying for educational purposes may change in the future;
that certain types of copying permitted under these guidelines
may not be permissible in the future, and conversely
that in the future other types of copying not permitted under
these guidelines may be permissible under revised
guidelines.

Moreover, the following statement of guidelines is not
intended to limit the types of copying permitted under the
standards of fair use under judicial decision and which are
stated in Section 107 of the Copyright Revision Bill. There
may be instances in which copying which does not fall
within the guidelines stated below may nonetheless be permitted
under the criteria of fair use."

>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.

Wrong. Please read what I write before responding. As I have said
many times already all of the BIG MUSICAL INSTITUTIONS (who have
loads of MONEY) engage in this practice on a pervasive and daily
basis. This would be a HUGE lawsuit, if it were illegal. Think all
the Music Schools, all the Orchestras etc...

>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?

It's not "an arrangement" nor is it a "derivative work" as I have
said many times. It's simply a personal copy for study of a duly
purchased copy that I own.

>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.

Not agressive in the least. I am simply pointing out that the
practice is quite likely legal, hugely widespread, and has never once
been brought to court.

>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.

This has absolutely nothing to do with anything I have discussed here
at any point. Randomly irrelevant and unrelated.

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

Didn't ever say this. Why do you fabricate nonsense, and then claim
that I said the nonsense (which I didn't), and then rail against me
for things that I never said?

Stick to the facts.

Best,
--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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