Wednesday, December 17, 2008

My God, I Need To Stop Reading Badly Written Articles About The Music Biz

I'm starting to get very frustrated with the amount of bad or confusing information regarding IP and copyright law.

Today my PRO ASCAP, sent out it's daily email with links to various 'articles' covering music business issues....and of course there is a completely misinformed one in there.


Masnick does an amazing job of confusing two very different areas of law, IP and mechanical property law. There is also a distinct attempt at defining the burden of proof or lack there of within the issue of plagiarism. In fact the more I think of it, this is about the worst clusterfuck of intellectual property law, mechanical property law and fair use! Let's face it, Masnick is trying to provide a service akin to journalism, which at best would have credibility and at worst be fluff.

The major piece of misinformation is the 1st paragraph "They are in different tempos/keys to make them sound alike." OK it is a poor sentence too. But this was proceeded by "...Satriani had decided to sue Coldplay over it, demanding all profits from its song. There are a number of reasons why this didn't make much sense, but folks in our comments did a fantastic job sniffing out the details."

1. The reader of this blog, somehow know what the burden is of plagiarism.
2. That in changing key or tempo of a musical piece there is enough to prove that there is not an infringement.
3. That if there are other pieces of music with similarities then an infringement did not occur.

Now toss on top of it, what the blog entry is really about, the fact that Coldplay's record company, EMI, requested that the YouTube video be pulled, claiming mechanical right violations. Of course, this leads to fair use.

Let clear a number of things up:

1. Can EMI ask/request that the video in question be pulled? Yes, EMI could ask YouTube to only play Coldplay for the next 10 years! Would YouTube do it? My guess is no but from on company to another they can ask for anything.

2. Is the guy that made the YouTube video violating any laws? Maybe, that is something that could be argued in court. I don't think the video violates any rights and if that is the case he could even sell copies of the video and profit from it. This is what fair use is all about, fair use does not see a difference between non-profit and for profit.

3. Is YouTube violating any rights of the video creator by pulling the video? No, YouTube is a business and is free to pull anything it likes.

4. Is YouTube violating any laws by providing the video to the public? Again maybe, it is something that could be argued. In fact if I'm not mistaking, if the video was free and clear of any infringements, YouTube could copy and sell the video as well. I would really have to look at the agreement between uploaders and YouTube. I do have a feeling that this is limited to a window of time in which the video is uploaded to YouTube and if the video is removed this right probably expires.

5. If a piece of music is in a different key and/or tempo but is similar in other ways to another piece of music does that exclude the first piece from intellectual property violations? NO NO NO NO NO! Tempo and key are relative terms. They are NOT the same as rhythm, harmony or melody. This is as bad as the non-existent 6 second sampling myth.

Alright, now that this is off my shoulders, I can try and get back to actual fact based information on music and rights!

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