by NoteBoat » May 2nd, 2010, 5:56 am
I'll throw in my two cents - I've been following copyright issues for a long time. And I've been thinking about this for a few weeks, since the issue first started.
I'm not an attorney, but I see the arguments over GN's use of tab to fall in four areas:
Educational use
In GN's favor:
- section 107 of the US code provides a fair use exclusion for educational purposes
Against GN:
- While section 107 provides that the use of copyrighted material for teaching is a fair use, section 107.1 sets out a determining factor of "nonprofit educational use". Since GN sells advertising space, there is a demonstrable commercial motive, and unless GN is registered as a not-for-profit enterprise with the IRS, this could negate the educational use provision.
My opinion: GN should file for not-for-profit status. With it, the educational use can be tested on its own merits; without it, the argument against can focus on the wording of copyright law, and "nonprofit" is clearly in the law. With it, GN also would get two other benefits, no matter how the tab thing shakes out: they can accept tax-deductible contributions, and they can apply for grants from arts organizations.
Incidental educational use
In GN's favor:
- a 1961 copyright office report that lists instances that would be regarded as fair use, and the list includes reproduction of a small part of a work by a teacher to illustrate a lesson
Against GN:
- Fair use exclusions are clearly limited as to the amount and substantiality of the material that can be quoted. The GN lessons do not use a small excerpt to illustrate a technique; instead, the lessons are based on an entire copyrighted work.
My opinion: GN is likely to lose on this point. The lessons are based on entire copyrighted works. But lessons could be re-cast to avoid this issue: for example, if a particular segment of a song illustrates syncopation in strumming, a lesson on syncopation could include small examples from a dozen songs, rather than one. It might also be possible to create an index for the lessons by song - so that each segment now included in a single song-based lesson is treated in separate lessons illustrating techniques, but all segments could be found through an index.
Effect on the market
In GN's favor:
- one of the factors a court is to consider in a fair use claim is the effect of the use on the market as a whole, and the value of the copyrighted work. GN could potentially show that musicians purchase more sheet music as their ability increases, and that the use of excerpts in lessons is actually of benefit to the copyright owners, rather than diminishing the value of their intellectual property.
Against GN:
The burden of proof rests with GN. Even if GN is able to demonstrate that their use of copyrighted material in fact benefits the copyright holders overall, they must also show that it did not harm specific copyright holders. Using a song by Green Day (or any other artist) to illustrate a lesson will almost certainly reduce sales of sheet music for that particular song and/or artist to the visitors of GN; those artists have a valid claim for damages, even if the use secondarily enriches other artists and publishers.
My opinion: this one probably won't be the central argument. If GN could plausibly show an overall benefit to the publishing industry, the MPA might lose 'standing' on this issue, and the pressing of claims would shift from one lawsuit (the MPA v GN) to hundreds (Green Day v GN, Rolling Stones v GN, etc). This would mean higher costs for both sides, but it would also mean lower potential judgments for each case. The real risk would be in the first one - if the MPA successfully sued on behalf of one artist, they'd have a precedent for additional claims. I'd bet they'd be tempted to bring one case to test the waters, but I'd also bet they'd take a long hard look at it first... because the burden of proof would be on them to show a specific loss for a specific artist's print music sales as a direct result of GN's use, and that may be hard to do.
Interpretation
In GN's favor:
- the works are "transformative". Rather than present a step-by-step guide to playing a particular song, the original material is transformed for use in presenting broader concepts. Neither the chord progressions nor the techniques used are subject to copyright protection.
Against GN:
- transformation of works is excluded under copyright law only in the case of parody or criticism. The transformations in the GN lessons do not include any commentary or review of the original material, so the criticism exclusion does not apply. The uses also do not transform the original works sufficiently as to create entirely new works - they are not parodies of the originals. At best, the transformation creates a musical arrangement, which is defined as a "derivative work" under section 101. Section 106 grants the copyright holder the exclusive right to prepare and/or authorize derivative works.
My opinion: GN probably loses on this one. I think it would be far easier to make a plea for an educational fair use if the material was presented verbatim - that removes the derivative work element. If a lesson is an 'interpretation' of a song, the law rests on the side of the copyright holders, because they have the exclusive right to authorize adaptations of their work. The GN use of illustrations doesn't go as far in changing the original works as successful fair use cases (Campbell v Acuff-Rose Music) - and they lack the humor element to make a strong parody defense. Even if the lessons were re-written to twist the original works and include a humor element - which would be hard to do - it would be hard (and expensive) to fight - some cases (Liebovitz v. Paramount Pictures Corp) have succeeded in a fair use defense, while others (Dr. Seuss Enterprises v Penguin Books) have failed. And it's worth noting that those cases all had very expensive legal teams in the fight.
In total, I'd say Paul is doing the right thing by pulling all the tabs. And if he decides it's a fight worth pursuing, there are three things he should do first to make the case strong: get not-for-profit status, drastically cut the length of the illustrations used in lessons (and not use more than one illustration from the same song in a lesson), and make sure all the tabs are dead-on accurate to remove the risk of a derivative works claim.
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