Music rights question...again

[Mark Moore]

Paul, thanks very much for all of the useful information. It's been very informative and interesting!

[Rick Spilman]

Bottom line Roze, don't sweat it. What you suggest is not specifically illegal. (Granted, it is not specifically legal either.)

The intent of Congress in the AHRA , from the Congressional record, was:

Specifically, it is not the intention of [Congress] to restrain the home recording, from broadcasts or from tapes or records, of recorded performances, where the home recording is for private use and with no purpose of reproducing or otherwise capitalizing commercially on it.

Yes, it doesn't specifically include music applied to video for private use. There is case law that suggests that "format shifting" is covered by fair use. (RIAA vs Diamond Multimedia). In general using short clips for personal use has some coverage under "fair use".

Section 107 of the Copyright statute lists four factors, which judges must balance together on a case-by-case basis to decide if a particular use would be considered fair.

(i) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.


(ii) The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is informational rather than creative or expressive.


(iii) The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A use will be more likely to be fair where the amount taken is small or insignificant in proportion to the overall work and where the quality of the part taken is less significant.


(iv) The effect of the use upon the potential market for or value of the copyrighted work, including the effect on any derivative markets -- A use will be less likely to be fair where it replaces or supersedes the demand for the original work, or a foreseeable derivative product (a product based on the original).

http://www.eff.org/cafe/drmgame/doc105.html#FAIRUSE


And the real reason not to worry is that no one would ever sue you. The civil and criminal penalties are either too low or are not applicable. It just isn't worth their time.

[Paul Tauger]

I really need to put together a FAQ, or something. ;)

Fair use is an equitable doctrine, codified in the Copyright Statute. The four factors listed in the statute are non-dispositive, meaning simply trying to analyze a specific use by applying the factors will _not_ result in an accurate prediction as to whether it constitutes a fair use as a matter of law. Fair use law is _judge-made_ law and fact specific. The former means that the only way to get a sense for how a court may rule is to look at the cases which decided similar fact patterns; analyzing a situation solely in the context of the statute is pointless. The latter means that, even given relatively similar fact patterns, the result may still be different due to other factors which are not in the statute and have not been previously addressed by the courts.

Using a CD as a soundtrack for a video is very different from what was contemplated by the AHRA. As I recall the format-shifting cases, addressed only protected expression that was translated to other formats and NOT situations in which it was mixed with other expression to result in an entirely new derivative work.

As for liability for copyright infringement, damages are measured in two ways -- the plaintiff may elect actual damages, i.e. lost sales or infringer's profits less cost of sales, OR, statutory damages which require no proof of loss. Statutory damages for non-intentional infringement are provided in 17 U.S.C. Sec. 504(c)(1), and specified as, "a sum not less than $750 or more than $30,000." Statutory damages for intentional infringement are specified in 17 U.S.C. Sec. 504(c)(2) as a sum of not more than $150,000.

As for whether someone would be sued or not, I've said this many times: I have brought actions on behalf of my clients against relatively minor infringers where there was NO hope of recovery. Each time, my client elected to pursue the suit for the sound business reason of making an example of the infringer so as to discourage what we saw as a potential for pervasive infringements. I recently won a $3.4 million judgment against a relatively small infringer (this was a trademark action) which, I have no doubt, will precipitate a bankruptcy filing on the defendant's part.

Obviously it's a personal choice whether or not to risk this kind of liability and, as I've said, I myself use commercial CDs to provide soundtracks for my personal, friends-and-family videos. However, before anyone makes the decision to do this, it is important that they have the FACTS.

My personal belief is that using commercial CDs to provide soundtracks for _true_ "home movies" probably comes within both the AHRA and fair use. However, even though I'm an intellectual property lawyer, my personal belief doesn't mean much until either Congress or the courts clarify this issue.

[Rick Spilman]

OK, Paul, you have just implied that putting copyright music on home videos could result in millions of dollars of liability.

I presume that you were in fact referring to the previous paragraph where you quote, incompletely, the liabilities under 17 U.S.C. Sec. 504(c)(1) and not to your $3.4 million trademark action which has absolutely nothing to do with the discussion at hand. (This is my presumption even if that is not the way if reads. The juxtaposition of the phrase " risk this kind of liability" directly after the reference to a multimillion dollar judgement strikes me as less than completely responsible.)

You did snip off the language following the statuatory damages, which is "as the court considers just." It is difficult to believe that putting a snip of Enya behind a home video would rate more than the minimum, even if by some quirk of poor juris prudence the home video was found to not be covered by the AHRA and/or fair use. You yourself admit that you think that home movies probably fall under AHRA and fair use. Indeed the statute allows the court to reduce the statutory damages to a sum of not less than $200 if the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright."

Before you point out that the court could disagree and assign the maximum, I will concede the point. I will also suggest that there is a non-zero chance of all concerned being hit by a bus crossing the street to the court house. Nothing is certain though a degree of reasonableness can often be at least hoped for.

My point was and is that the likelihood that even the thuggish RIAA would be interested in suing for a likely maximum payoff of less than a thousand dollars, especially when the legality itself is not clear. Their downside risk would be a precident that yes indeed the AHRA does apply to home video, an incremental loss but a loss for the record industry nevertheless.

This also completely ignores the question of how if a "home movie" is indeed made for private use only, that the RIAA enforcers would ever get their hands on it in the first place, short of breaking and entering, a crime whose penalties are even higher that copyright infringement.

It now appears that Napster users will be are far greater risk that home video editors.

[Don Parrish]

Just now I watched a news report on WFTV channel 9 Orlando about the music industry intending to file hundreds of lawsuits.

http://www.wftv.com/technology/2293526/detail.html

POSTED: 3:09 p.m. EDT June 25, 2003

WASHINGTON -- If you're downloading music off the Net, the music industry says you should be prepared to be sued.

The Recording Industry Association of America has announced plans to sue hundreds of individual computer users who illegally share music files online. The announcement came after a federal appeals court ruled that Internet service providers must identify subscribers suspected of illegally sharing music and movie files.

The recording industry said it will start to search file-sharing networks for users who have large collections of MP3 files, and that hundreds of lawsuits will be filed in the next eight to 10 weeks.

The head of the industry group said Internet downloaders will have to weigh the real risk of "facing the music." But officials declined to say just how many downloaded songs would put a consumer at risk.

Critics say the music industry has declared war on consumers. The Electronic Frontier Foundation says the lawsuit plan shows that the industry has lost touch with reality.

[Paul Tauger]

OK, Paul, you have just implied that putting copyright music on home videos could result in millions of dollars of liability.

Nothing of the sort. In summary:

1. Putting copyright music on home movies may or may not come within either the ARHA and/or fair use.

2. Liability for copyright infringment is extensive, even where there are no damages.

I presume that you were in fact referring to the previous paragraph where you quote, incompletely, the liabilities under 17 U.S.C. Sec. 504(c)(1) and not to your $3.4 million trademark action which has absolutely nothing to do with the discussion at hand.

On the contrary, that judgement has everything to do with the discussion at hand. My client pursued a small-time infringer, with little expectation of recovery, and willingly spent well into 6 figures to do so. The assumption that small-time infringement is not prosecuted is simply wrong.

You yourself admit that you think that home movies probably fall under AHRA and fair use.

Right. But I'm not prepared to offer that as a legal opinion that someone else should rely on. You had said this:

"And the real reason not to worry is that no one would ever sue you. The civil and criminal penalties are either too low or are not applicable. It just isn't worth their time."

Sorry, but that's simply wrong, both with respect to plaintiff's motivations to sue and with respect to the potential penalties for infringement.

My point was and is that the likelihood that even the thuggish RIAA would be interested in suing for a likely maximum payoff of less than a thousand dollars, especially when the legality itself is not clear. Their downside risk would be a precident that yes indeed the AHRA does apply to home video, an incremental loss but a loss for the record industry nevertheless.

Sure, but this misses the point. _IF_ someone should sue (and RIAA isn't the only potential plaintiff with standing), the cost of litigation alone, not to mention the potential for liability, is more than most people could afford. As I've said, I, myself, use commercial CD music on my "home movie" soundtracks. I still will not advise anyone that it's okay to do so.

This also completely ignores the question of how if a "home movie" is indeed made for private use only, that the RIAA enforcers would ever get their hands on it in the first place, short of breaking and entering, a crime whose penalties are even higher that copyright infringement.

Which comes down to, "It doesn't matter because I won't get caught." That has nothing to do with the question of _law_, i.e. is it infringement of copyright to use music from commercial CDs on home movies.

[Rick Spilman]

Liability for copyright infringment is extensive, even where there are no damages.

Fine. Good lawyering, (if that is the sort of lawyering you like. ) The topic being discussed is a grey area which you suggest will probably be found not to be an infringement of copyright laws. To raise multi-million dollar settlements, in any context, when they are not supported by the statues being discussed strikes me as scare-mongering. Obviously we will disagree on this point. No doubt we will also disagree on the definition of "extensive."

Which comes down to, "It doesn't matter because I won't get caught." That has nothing to do with the question of _law_, i.e. is it infringement of copyright to use music from commercial CDs on home movies.

Nonsense. This is about acting reasonably in an area where the law has broken down or hasn't been defined. Nothing more or less.

By the way, in one post you say that using copyrighted music in home movies is "probably" OK under AHRA and fair use and now you unequivocally state that it is a copyright infringement. Can't have it both ways.

[Mark Moore]

Rick and Paul - I do find these posts fascinating, and I'm sure every word that you have written makes perfect sense to you two, but to a poor, ignorant filmmaker like me - I'm only understanding every other word!

What I can make out from both of you is that it's 'ok' to buy CDs and make copies for personal use. You can probably use those CDs to add to your home movies, but it is technically a copyright infringement. Chances are you will not get caught, but if you do, the litigation costs alone could be astronomical.

Therefore, you just need to make your own decisions on whether to do that or not.

Is that a quick laymen's perspective?

Also, here is another post from EXCITE news on the RIAA lawsuits against music sharers:

http://apnews.excite.com/article/20030626/D7RT3GDG0.html

I haven't done that since Napster shut down!

[Paul Tauger]

The topic being discussed is a grey area which you suggest will probably be found not to be an infringement of copyright laws.

I've suggested absolutely nothing of the sort. To make the determination depends, among other things, on which judge a case is tried to (and which president nominated him), what Congress does about the DMCA (which, on its face, conflicts with the AHRA), and which circuit the case is tried in. If I were a sitting federal judge, I'd be inclined to find this kind of copying to be both fair use and within the AHRA. However, I'm not a judge, and it would be completely irresponsible of me, or anyone else, to tell someone, "sure, go ahead and do it -- nothing will happen."

This is about acting reasonably in an area where the law has broken down or hasn't been defined.

The law is defined: Unauthorized copying is illegal. Period.

By the way, in one post you say that using copyrighted music in home movies is "probably" OK under AHRA and fair use and now you unequivocally state that it is a copyright infringement. Can't have it both ways.

Fair use is a _defense_ to copyright infringement, i.e. but for the availability of the defense, the act in question constitutes illegal copying. The AHRA precludes liability for copying music for personal use -- it does not legalize it.

[Paul Tauger]

What I can make out from both of you is that it's 'ok' to buy CDs and make copies for personal use. You can probably use those CDs to add to your home movies, but it is technically a copyright infringement. Chances are you will not get caught, but if you do, the litigation costs alone could be astronomical.

Therefore, you just need to make your own decisions on whether to do that or not.

Is that a quick laymen's perspective?

Pretty much on the nose. ;)

[Mark Monciardini]

I think the real bottom line here guys is - does anyone know someone that got fined using music on a wedding video?

I don't think so.

And why not?

because they don't want to waist time with you, with your emails, calling you back, your little business and specially your video.


case closed.

[Paul Tauger]

Copyright infringement results in liability either for actual damages or statutory damages, at the plaintiff's option. Statutory damages, which require no proof of actual damages, can be as much as $150,000 per infringement, i.e. per song used. It is completely wrong to say there is no legal liability in this context. If your "lawyer colleague" said so, then she needs to educate herself about copyright law.

because they don't want to waist time with you, with your emails, calling you back, your little business and specially your video.

Don't assume that, because you're a relatively small player, you won't get sued. All it takes is a copyright owner who wishes to make an example of someone (look at what the RIAA is doing right now). I've sued relatively small players (albeit in the trademark context) in the past because my client wanted to send a strong message to other potential infringers.

Intellectual property litigation has _nothing_ to do with emails and telephone calls from the infringer, and everything to do with the willingness of a plaintiff to invest in the protection of its intellectual property assets, i.e. my clients don't use law suits as a profit center, but as a cost of doing business to protect their copyrights and trademarks -- they expect to lose money on the suit.

The risk of getting sued for using protected music in a wedding video is probably quite small. However, whether or not someone wishes to undertake the risk is a decision that someone should make based on facts and accurate information.

[Rick Spilman]

Paul, with all due respects, the scare tactics are getting really tedious, particularly when they don't necessarily represent the law or industry practice.

The folks at Harry Fox are of the opnion that 10 copies or less fall within the provisions of the AHRA provided that the bride and groom purchased the CD. They admit that this has not been established in court, but it is their professional opinion, a commonly accepted practice and a question that they are often asked. You won't agree, I know, but then this isn't your area of specialty, is it?

You keep quoting the maximum possible liability under 17 U.S.C. Sec. 504(c)(1) yet you leave out the provisions which are far more likely to apply to a wedding videographer in the near zero chance that one does get sued:

The court " may reduce the award of statutory damages to a sum of not less than $200" provided that the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".

Given that Harry Fox considers the action to be legal and that it has not been proven to be otherwise it court, there appears to be a pretty good defense against "willful" infringement under the law. The probability of the $150,000 judgement per song that you wave about so freely seems pretty close to zero. You will no doubt disagree, but so be it.

My point is, scare tactics add absolutely nothing to the conversation.

[Paul Tauger]

Paul, with all due respects, the scare tactics are getting really tedious, particularly when they don't necessarily represent the law or industry practice.

I have no opinion on industry practice. Everything I've written accurately represents the law.

The folks at Harry Fox are of the opnion that 10 copies or less fall within the provisions of the AHRA provided that the bride and groom purchased the CD. They admit that this has not been established in court, but it is their professional opinion, a commonly accepted practice and a question that they are often asked. You won't agree, I know, but then this isn't your area of specialty, is it?

It's encouraging to hear that Harry Fox takes this position. Is it in writing anywhere, because I haven't seen it? If they've published this position somewhere, then all wedding videographers are free to rely on it and, with respect to any music publishers represented by Harry Fox, can use the CDs for 10 copies or less with impunity.

Why would I disagree with Harry Fox? I've said right along that I think this kind of use should come within either AHRA or fair use doctrine, but there have been no published opinions testing it. I'm glad HFA thinks so, too.

"Specialty" is a term of art for lawyers in California -- you can only be a specialist if you're certified in a particular area, and there is no such thing as a certification in any of the intellectual property fields. I'm an intellectual property litigator -- I prosecute and defend actions for trademark and copyright infringement (and, to a lesser extent, patent).

You keep quoting the maximum possible liability under 17 U.S.C. Sec. 504(c)(1) yet you leave out the provisions which are far more likely to apply to a wedding videographer in the near zero chance that one does get sued:

The court " may reduce the award of statutory damages to a sum of not less than $200" provided that the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright".

The amount of a statutory damage award is commited to the judge's discretion. Appellate courts review of an exercise of judicial discretion by applying an "abuse of discretion" standard which, for all intents and purposes, means that a judge can do pretty much what he wants in setting statutory damage.

A professional videographer would have a very difficult time arguing that he was neither aware, nor had reason to believe, that illegal copying of music was an infringement.

As far as what HFA may say, please point me to a source for the attribution, so that I can see the exact language they've used. Their position is important, not because it has any persuasive value in a court of law (it's not), but because they are the representative of the rights' owners -- the doctrines of estoppel, acquiesence and possibly license apply, depending on what they've said and where they've said it.

The probability of the $150,000 judgement per song that you wave about so freely seems pretty close to zero. You will no doubt disagree, but so be it.

I don't disagree, though everything depends on context. I posted the statutory maximum in response to another poster who said there could be no damages, which is simply wrong.

My point is, scare tactics add absolutely nothing to the conversation..

Neither does misinformation. I have never suggested that wedding videographers shouldn't use music from commercial CDs. I've only suggested that they understand the law with respect to such use. The law is not, "go ahead and do it, no one will catch you," which seems to be a common view from some people in this forum.

[Rick Spilman]

A professional videographer would have a very difficult time arguing that he was neither aware, nor had reason to believe, that illegal copying of music was an infringement.

I was suggesting that given that an industry agent views the activity as not an infringement, there would be not necessarily be a basis for a videographer considering it illegal prior to a court ruling to the contrary. (Unless he uses message boards as his source.)

I've only suggested that they understand the law with respect to such use.

And I have been suggesting that selective quoting of these statues to reflect only the maximum possible penalites does not advance that process.

I am sure you are as sick of this topic as I am. I'm moving on.