[d at DCC] Fair use question

Russell McOrmond russell at flora.ca
Tue Aug 8 12:59:46 EDT 2006

   I read the "tolug" thread, and how Scott took the recording down.

   Too bad as it is highly unlikely he would get sued if this was under 
one of the "NC" (non-commercial) licenses even if it would have been 
considered infringing by a court (something I couldn't want to try to 
guess at).  The problem is that most people don't want their name and 
"test case" ever put together given the resources required to defend 
themselves from even the most frivolous of lawsuits.

   What is and is not infringing is quite vague and subjective.  While I 
am a "code is law" person, I believe that especially those who have this 
believe need to realize that legal code and computer code are quite 
dissimilar in how "squishy" legal code is.  Computer people are used to 
coming up with rules, running them through a compiler, and having the 
same input always generate the same output: legal code doesn't work that 
way.  Even the nasty "Pentium divide bug" could be avoided given there 
was a logical pattern that could be used to know what inputs would get 
wrong outputs, something that cannot be done for the courts.

   While the whole transcript is a great read, see the following section 
about when hackers attempt to be lawyers:

   With that in mind, taking everything you read from computer people in 
this and other forums with the appropriate grain of salt, ....

Robin Millette wrote:
> Actually, nothing in the law prevents you from recording music at
> home, for your own fun. It's the distribution (the copying /
> copyright) that is troublesome.

...the public performance, communication by telecommunications, and ...

   The literal wording of the copyright act is that while you can have 
private performances without copyright being involved, any recording of 
that private performance does require the permission of the copyright 
holder on the music.  Remember the antiquated nature of the copyright 
act, and how much of what it regulates are things which were previously 
only commercial activities given how expensive these things were.  The 
idea of "home recording" is rather recent, and not anticipated by the act.

   Carving out entirely private activities from the Copyright act is 
something that hasn't yet been done, and there are special economic 
interests trying to have more and more private activities regulated by 
copyright (so-called anti-circumvention being an example -- personal 
choices of what software we run on our own hardware is being revoked).

   Music copyright is one of the most messy aspects of copyright (*) 
given you have the music publishing side (what was previously considered 
"sheet music", even though lyrics and the underlying music aren't 
written down as much any more) and the recording side.  Each side has 
their own copyright holders (composers/publishers, performers/labels) 
which are sometimes the same people (singer/songwriters, and labels that 
have a publishing arm).  Each of these potentially different entities 
have different activities which they have an exclusive right for.

   Most works under copyright are nothing at all like "books", which is 
the type of copyright people like to use as the simple example.  I 
believe that it over-simplifies things, and doesn't adequately expose 
people to just how bad the current Copyright regime is.

(*) Video games that embed the equivalent of a motion picture are likely 
the worst, given it includes all the mess of music embedded within the 
movie as well as all the additional complexity of the video (motion 
pictures) as well as the software.

   I had a long conversation with a lawyer this weekend (who will remain 
nameless unless he wishes to say Hi) asking a simple question:  since 
movie copyright expires in Canada 50 years after publication, and music 
50 years after the death of the composer, then what happens when a movie 
is in the "public domain" and yet the music behind the soundtrack is 
not.  Can that movie be distributed for free as is being done currently 
with sites like Archive.org, and can any of the music copyright holders 
sue Archive.org?   My belief is "yes", that as the very broken Canadian 
copyright act is written now we have this problem.

   The only viable solution is to simplify the term of copyright to a 
fixed term:  x years from recording for things like photographs + sound 
recordings,  x years from date of publication for manipulated works such 
as books, movies, music, etc.  We must get rid of the "life+" concept 
from copyright!

  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Please help us tell the Canadian Parliament to protect our property
  rights as owners of Information Technology. Sign the petition!

  "The government, lobbied by legacy copyright holders and hardware
   manufacturers, can pry my camcorder, computer, home theater, or
   portable media player from my cold dead hands!"

More information about the Discuss mailing list